Generally, when one thinks about sex discrimination what comes to mind is a woman being discriminated against by her employer because of her gender. While that is typically the case, employers should remember that sex discrimination isn’t reserved for women – men can be victims too. A recently settled EEOC lawsuit (EEOC v. Park School of Baltimore Inc.) makes this point clear to employers with a $41,000 price tag.
In this case, a private school in Maryland had hired a man to coach its softball team. The coach was given a one-year contract in 2014, which the school then renewed for two additional years (2015-2016). At the end of the 2016 season, the coach was informed that, despite his good performance, the contract would not be renewed for 2017 because the school preferred “female leadership” for its softball team.
The coach filed a claim with the EEOC alleging that he had been discriminated because of his gender and the EEOC agreed, filing a lawsuit against the school for gender discrimination.
While the case was quickly settled, it serves as an important reminder to all employers that “Title VII protects both men and women from unequal treatment based on gender.”
In a recent case (Hostettler v. College of Wooster), the US Sixth Circuit Court of Appeals held that a requirement that an employee work full time, without a duties-based reason for the requirement.
In this case, the plaintiff was an HR Generalist at College of Wooster. The plaintiff had recently had a baby and, when she was released to return to work, her doctor provided a restriction that the plaintiff could only work part-time because the plaintiff was suffering from postpartum depression and separation anxiety.
Initially, the employer granted the requested accommodation – allowing the employee to work 5 half days per week. The plaintiff worked that modified schedule for one month and then turned in a note from her doctor stating that she would need to continue working the modified schedule for an additional two months. The next day, the employee was terminated. The reason given – the department could not function properly because the plaintiff was not working full-time and working a full-time schedule was an essential function of the HR Generalist position. The plaintiff filed a lawsuit claiming that her termination was discriminatory. Continue reading NEW CASE: Without More, Full-Time Attendance Is Not An Essential Job Function
In a recent case (Sessoms v. Trustees of the University of Pennsylvania), the Third Circuit Court of Appeals held that while the Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodations to disabled employees, employers are not required to provide the accommodation requested by the employee. Instead, after engaging in the interactive process, employers may choose among reasonable accommodations as long as the chosen accommodation is effective.
In this case, an employee had been out on a medical leave of absence relating to her disability. Prior to returning to work, the employee engaged in the interactive process with her employer (the university) and requested that she be provided a part-time schedule and that she be transferred to a different supervisor in a “lower-stress department/office” as a reasonable accommodation for her disability.
The university agreed to provide the employee with a part-time schedule, but the university did not grant the employee’s request to change supervisors. The university offered the employee several different accommodations (all of which involved reporting to her current supervisor), but the employee refused to accept any accommodation that involved her reporting to her current supervisor. Ultimately, after making several attempts to get the employee to accept the offered accommodation, the employee was terminated. The employee later sued the university for disability discrimination. Continue reading NEW CASE: Court Reminds Employers That Reasonable Accommodation ≠ Employee’s Demand Where There Are Other Reasonable Alternatives
Associated Fresh Market, Inc. has agreed to pay $832,500 to settle a group of disability discrimination charges filed with the U.S. Equal Employment Opportunity Commission (EEOC).
The charges filed against the company by several employees alleged that Associated Fresh Market had a pattern and practice of denying reasonable accommodations to disabled employees.
The EEOC investigated these charges and found that the company had a practice of denying reasonable accommodations under the ADA. Specifically, the company required employees to have no restrictions or be 100% ready to return to work before an employee was reinstated following a medical leave of absence. The company also routinely denied leave as a reasonable accommodation. Finally, the company frequently refused to reassign employees to a vacant position as a reasonable accommodation.
Continue reading Utah Employer Learns A $832,500 Lesson About Disability Discrimination
On June 5th, Nevada Restaurant Services, a large Las Vegas-based gaming company that operates slot machines, taverns, and casinos, agreed to pay $3.5 million to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC).
In the suit, the EEOC alleged that by requiring workers with disabilities or medical conditions to be “100% healed” before returning to work the Las Vegas gaming company violated the Americans with Disabilities Act (ADA). The EEOC argued that this behavior doesn’t adhere to the ADA’s interactive process, let alone its reasonable accommodation requirement.
Furthermore, the EEOC showed that Nevada Restaurant Services went as far as firing employees because it viewed them as disabled or, in some cases, were simply associated with someone with a disability.
The EEOC’s Fight Moves Onward
Continue reading The EEOC Claims Another Victory in Fight for Disabled Workers
In continuing with the theme of the year, another appellate court has taken more expansive view of the protections under Title VII to extend its previous limits to cover a newer issue: discrimination on the basis on an individual’s transgender status. In so doing, the Sixth Circuit Court of Appeals became the first federal appellate court to recognize such rights under the federal law.
R.G & G.R Harris Funeral Home hired Aimee Stephens when she was living and presenting as a man. She worked for the funeral home for approximately 6 years, until in 2013, when she informed the owner that she intended to begin living and working as a woman. The owner terminated Aimee’s employment two weeks later on the basis that “the public would not be accepting of her transition.”
Aimee filed a complaint with the EEOC which brought a lawsuit against the funeral home for discrimination based on Aimee’s sex and gender identity. The district court, interpreting Title VII within its traditional limits, dismissed the claims against the funeral home alleging discrimination based on transgender status.
The Sixth Circuit disagreed. In taking a more expansive approach to Title VII, the court ruled that it was “analytically impossible” to terminate an employee based on their transgender status without being motived, at least in part, by the employee’s sex. Thus, the court found “[discrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex” in violation of Title VII.
What Does This Mean for Employers?
Most employers are by now well acquainted with the reality that the EEOC will bring and has brought charges for perceived discrimination or harassment of employees based on their transgender status. The EEOC has held that position since 2012. What’s changed now is that a federal appellate court has affirmed the EEOC’s position. This will likely encourage employees, and their attorneys, to file claims for transgender discrimination where they would have otherwise been hesitant to do so. Continue reading The Change Continues: Transgender Status Ruled Protected Under Title VII
Effective June 6, 2018, Washington employers will no longer be permitted to ask applicants about arrests or convictions, or to receive information through a criminal background check, prior to making a determination as to whether the applicant is otherwise qualified for a position. This new law is known as the Fair Chance Act (the Act).
Prohibited Activities Under the Act
Under the Act, an employer is prohibited from doing any of the following before making an initial determination that an applicant is otherwise qualified for the position:
- Asking orally or in writing about the applicant’s criminal record;
- Receive information through a criminal history background check; or
- Otherwise obtaining information about the applicant’s criminal record.
For purposes of the Act, an applicant is “otherwise qualified for the position” when the applicant meets the basic criteria for the position as set out in the advertisement or job description without consideration of a criminal record.
The Act also limits the content of an employer’s advertisements for job openings and hiring policies by specifically prohibiting:
- Advertising employment openings in a way that excludes people with criminal records from applying (e.g., ads that state “no felons” or “no criminal background”); and
- Maintaining any policy or practice that automatically or categorically excludes individuals with a criminal record from consideration prior to an initial determination that the applicant is otherwise qualified for the position.
o Such prohibited policies and practices include rejecting an applicant for failure to disclose a criminal record prior to initially determining the applicant is otherwise qualified for the position.
Activities and Employers Not Covered by the Act Continue reading Washington Joins the “Ban the Box” Bandwagon
The EEOC recently released the national enforcement data for the 2017 fiscal year. According to this report, the total number of EEOC charges received in 2017 decreased from 91,503 received in 2016 to 84,254 received in 2017.
In addition, according to the report, in 2017, the EEOC resolved 99,109 charges and secured more than $398 million for victims of discrimination in private, federal and state and local government workplaces. Most notably, the EEOC received 6,696 sexual harassment charges and 1,762 LGBT-based sexual discrimination charges and obtained $46.3 million and $16.1 million in monetary benefits respectively for resolving these charges.
Retaliation claims remain the most popular claims filed. Race claims, Disability claims, Sex/Gender claims and Age discrimination charges round out the top five. The total breakdown of charges by type is as follows:
|Equal Pay Act
|Genetic Information Non-Discrimination Act
In addition, the EEOC has also released the breakdown of claims received by state. The top 10 states are:
|| Type of Charge
The full state breakdown of claims is available here.
ATTENTION EMPLOYERS – the Equal Employment Opportunity Commission recently announced that the 2017 EEO-1 survey is now available on the EEOC website. For those employers who are required to complete this form, the completed form must be submitted no later than March 31, 2018.
Who is required to complete the EEO-1 Survey?
All companies that meet the following criteria are required to file the EEO-1 report annually:
- Companies who are subject to Title VII of the Civil Rights Act of 1964 and who employ 100 or more employees; or
- Companies who are subject to Title VII of the Civil Rights Act of 1964 and who employ less than 100 employees if the company is owned by or corporately affiliated with another company and the entire enterprise employs a total of 100 or more employees; or
- Federal government prime contractors or first-tier subcontractors who are subject to Executive Order 11246 and who employ 50 or more employees and who is a prime contract or first-tier subcontract amounting to $50,000 or more.
Are companies required to provide compensation data relating to their employees?
In late August 2017, the Office of Management and Budget stayed the pay data collection requirement for the 2017 EEO-1 report. As a result, employers are not required to provide pay information on the 2017 EEO-1 form.
What do companies need to do to complete the 2017 EEO-1 Report?
To complete the report, employers must collect a snapshot of their employment data on a date of the employer’s choice ranging from October 1 to December 31, 2017.
In a recent California case, employers nationwide are reminded of the importance of engaging in the good faith interactive process and attempting to provide reasonable accommodation to a disabled employee. California jurors, in a special verdict, recently awarded a disabled former employee a $4.5 million verdict for violating the California Family Rights Act (CFRA) and California Fair Employment and Housing Act (FEHA) when the employer terminated the employee while she was out on CFRA leave.
In 2015, the former employee went out on medical leave (CFRA leave) for a broken arm. Shortly after going out on leave, the former employee was diagnosed with major depression and her treating physician advised her employer that she would require more time off than the 12 weeks provided under the CFRA.
Rather than engage in the interactive process with the employee to try to find a reasonable accommodation (or extend the employee’s leave), the employer terminated the employee when her 12 weeks of CFRA leave expired. The former employee filed a lawsuit against her employer claiming that she was fired because of her physical and/or mental disabilities, and in retaliation for her taking protected leave for medical treatment. The employee also claimed that her employer had violated FEHA by failing to engage in the interactive process with her about her disability and by failing to provide her with reasonable accommodation.
The jury agreed with the plaintiff and awarded her the $4.5 million verdict ($546,000 for back and front pay, over $1.9 million in compensatory damages and $2.6 million in punitive damages).
Take Home for Employers
While a California case, this case highlights to all employers the importance of working with employees who require accommodation for a disability (i.e. the importance of engaging in the interactive process). This case might have been brought under California law, but there are federal laws (i.e. the Americans with Disabilities Act and Family Medical Leave Act) that impose the same requirements on employers. Under these laws, employers are required to engage in the interactive process to determine what reasonable accommodations are necessary so an employee can perform essential job functions.
The following are important steps to follow when engaging in the interactive process with an employee:
- Document!!!!! When an employee requests a leave of absence or a reasonable accommodation, document that request. Also, provide the employee an acknowledgement of the request in writing, to document that the request was received.
- Talk to the employee about the request. Sit down with the employee and discuss the request and possible accommodation(s) that the company can offer. Request additional information from the employee (or his healthcare provider) where necessary in order to determine exactly what the employee can (and cannot) do.
- Document (again)!!!!! After these conversations with the employee, send the employee a confirming memorandum summarizing your conversation, outlining accommodations discussed, and detailing any action items that both the employee and company need to perform in order to continue with the process.
- Complete the company’s action items AND follow up with the employee. Be sure to complete any action items assigned to the company in the confirming memorandum. Also, follow up with the employee to check the status of his action items. Do not assume that the employee will simply complete them, periodically touch base with the employee. And, as always, document both the company’s actions, but also the follow up conversations with the employee.
- Repeat this process. This process will need to be repeated until an accommodation is reached or a determination is made that no accommodation is possible. Remember, under the ADA (and FEHA), a leave of absence is considered a reasonable accommodation.
Remember, the interactive process is a continuing process with your disabled employees. Just because an accommodation is reached, that does not end the employer’s obligation to engage in the interactive process. Employers need to follow up with their employees periodically and verify that the selected accommodation is still working for the employee (i.e. enabling the employee to perform the essential functions of the position). If it isn’t, then the company will need to start the interactive process all over again.