Category Archives: Title VII

NEW EEOC Case Reminds Employers That Sex Discrimination Isn’t Just for Women – Men Can Be Victims Too

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.”

The Change Continues: Transgender Status Ruled Protected Under Title VII

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.

Some Background

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

Federal Appellate Court Rules Sexual Orientation IS Protected

 

In what may turn out to be the start of a significant shift among federal appellate courts, the Second Circuit Court of Appeals recently held that discrimination on the basis of sexual orientation is prohibited under Title VII of the Civil Rights Act.

The Case

In Zarda v. Altitude Express, Inc., the Second Circuit reconsidered its own previous ruling that Title VII does not cover sexual orientation discrimination claims.  Zarda was a homosexual skydiving instructor who brought a sex discrimination claim under Title VII alleging he was terminated because he did not conform to male gender stereotypes as a result of his sexual orientation.

The Second Circuit initially (and begrudgingly) followed their own precedent and held that Title VII did not cover such claims. Upon reconsideration by the full court, the court overruled its own precedent and held that Title VII does recognize sexual orientation within the framework of sex discrimination claims.  Specifically, the court found that discrimination based on an individual’s sexual orientation is discrimination “because of sex” as prohibited by Title VII.

Significance of this Case

While Zarda is not the first time an appellate court has found sexual orientation protected under Title VII (the Eleventh Circuit previously found such protections in Hively v. Ivy Tech Community College of Indiana), it does show a significant trend among federal appellate courts in recognizing a more expansive interpretation of the protections under Title VII. Numerous federal district courts have also recognized such protections, as has the Equal Employment Opportunity Commission (EEOC), which issued guidance in 2015 officially recognizing sexual orientation as a protected class under Title VII.

Takeaways

Employers should ensure their antiharassment and discrimination policies reflect the protections afforded under federal and state law, including protections against discrimination and harassment based on an individual’s sexual orientation. Additionally, directors, officers, managers, and employees should be provided with antiharassment and discrimination training that includes discrimination or harassment on the basis of an individual’s sexual orientation and gender identity.

The sea change in the interpretation and enforcement of Title VII is coming. Now is the time to prepare.

2017 EEOC Litigation Data Released

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:

Retaliation 41,097 48.8%
Race 28,528 33.9%
Disability 26,838 31.9%
Sex/Gender 25,605 30.4%
Age 18,376 21.8%
National Origin 8,299 9.8%
Religion 3,436 4.1%
Color 3,240 3.8%
Equal Pay Act 996 1.2%
Genetic Information Non-Discrimination Act 206 0.2%

In addition, the EEOC has also released the breakdown of claims received by state.  The top 10 states are:

   Type of Charge
Total Charges Retaliation Race Disability Sex/Gender Age
Texas 8,827 4,740 2,999 2,642 2,740 1,975
Florida 6,858 3,486 2,153 2,222 2,041 1,366
California 5,423 2,752 1,811 1,915 1,500 1,374
Georgia 4,894 2,434 1,864 1,362 1,596 807
Pennsylvania 4,516 2,133 1,195 1,647 1,293 1,118
Illinois 4,392 2,382 1,663 1,414 1,399 1,032
North Carolina 3,752 1,854 1,447 1,210 1,034 751
New York 3,690 1,711 1,095 1,052 1,142 858
Virginia 2,730 1,201 966 864 818 518
Tennessee 2,640 1,318 970 808 815 528

The full state breakdown of claims is available here.

$800,000+ Reasons to Curb Sexual Harassment in Your Workplace

With the #metoo movement continuing to make headlines, all US companies should be looking for ways to address (and prevent) sexual harassment in their workplace.  However, if the continuing media coverage of the “sexual harassment problem” has not convinced you, two recently EEOC settlements give employers $890,000 reasons to take immediate action.

EEOC v. Indi’s Fast Food Restaurant, Inc., and Evanczyk Brothers, LLC

On January 8, 2018, the EEOC issued a press release announcing that this case (a 15-plaintiff case) had settled for $340,000.  According to the EEOC, managers of four of this restaurant chain’s locations subjected the plaintiffs (many of whom were minors at the time they worked for the restaurant) to “long-standing sexual harassment, including requests for sexual favors, sexually offensive comments and unwanted sexual touching.”

In addition to paying this settlement, the company must also take the following measures:

  • Provide letters of apology to the women,
  • Implement new policies,
  • Conduct extensive training for employees and management,
  • Post an anti-discrimination notice at all workplaces, and
  • Report compliance to the EEOC for a five-year period.

EEOC v. The GEO Group, Inc.

On the same day, the EEOC issued a second a press release announcing that this case (a class action case) had settled for $550,000.  According to the EEOC, female employees were subjected to a pattern and practice of sexual harassment (including sexual assault) between 2006 and 2012.  The harassment included the following type of behavior:

  • Sexual assault

o   A male manager grabbing and pinching the breasts and crotch of a female correctional officer, and

o   A male employee forcing a female employee onto a desk, shoving her legs apart, and kissing her.

  • Verbal harassment

o   Male officers asking female officers for sex,

o   A male officer calling a female officer “bitch” and “f—ing bitch” daily,

o   Supervisors and officers making sexually explicit comments (including “All I want to see of you is the top of your head bobbing up and down while you are on your knees”) to female officers.

o   A supervisor frequently saying that women should be barefoot and pregnant.

o   A male employee making gestures while talking dirty, and

o   Officers using profanity

  • Unwanted physical contact

The female employees also faced retaliation (e.g. discipline, forced resignation, termination, or placement in unsafe conditions in the prison) when they complained about the harassment.

In addition, to paying this settlement, the company must also take the following measures:

  • Send letters of regret to the women and provide employment references for them.
  • Review its equal employment opportunity (EEO) policies,
  • Ensure that all complaints of sexual harassment and retaliation are immediately and thoroughly investigated by a neutral employee,
  • Ensure that the complainant is informed of the results of the investigation
  • Designate certain alleged harassers as ineligible for rehire,
  • Post notices of the consent decree in its Florence facilities,
  • Conduct anti-discrimination training, and
  • Include EEO compliance when evaluating its managers.

Take Home For Employers

These recent settlements send two very important messages to employers.

Most importantly, employers should know that they cannot “stick their heads in the sand” when in receipt of a sexual harassment complaint (or when they have knowledge of potential sexual harassment – regardless of whether a complaint has been made).  Instead, employers must conduct investigations into these situations and take steps to address sexual harassment.  To ignore sexual harassment in the workplace will prove expensive to employers.

Also, these cases show that the EEOC (and state agencies) take this type of claim very seriously and will aggressively pursue charges of sexual harassment.

NEW GUIDANCE – EEOC Issues Guidance On Workplace Harassment

In the wake of the recent sexual harassment scandals, the Equal Employment Opportunity Commission (EEOC) recently published new guidance materials (entitled  “Promising Practices for Preventing Harassment“) which provides employers with numerous suggestions regarding best practices employers can adopt to help prevent workplace harassment (including sexual harassment).

Highlighted in this new publication is the importance of employers developing strong anti-harassment policies and providing regular anti-harassment training to all employees (with a additional recommendation that employers provide their managerial employees with more detailed training).

With respect to anti-harassment policies, the EEOC recommends that employers develop an anti- harassment policy that is comprehensive, easy to understand, and regularly communicated to all employees

This policy should include the following elements:

  • A statement that the policy applies to employees at every level of the organization, as well as to applicants, clients, customers, and other relevant individuals;
  • An unequivocal statement that harassment based on, at a minimum, any legally protected characteristic is prohibited;
  • An easy to understand description of prohibited conduct, including examples;
  • A description of any processes for employees to informally share or obtain information about harassment without filing a complaint;
  • A description of the organization’s harassment complaint system, including multiple (if possible), easily accessible reporting avenues;
  • A statement that employees are encouraged to report conduct that they believe may be prohibited harassment (or that, if left unchecked, may rise to the level of prohibited harassment), even if they are not sure that the conduct violates the policy;
  • A statement that the employer will provide a prompt, impartial, and thorough investigation;
  • A statement that the identity of individuals who report harassment, alleged victims, witnesses, and alleged harassers will be kept confidential to the extent possible and permitted by law, consistent with a thorough and impartial investigation;
  • A statement that employees are encouraged to respond to questions or to otherwise participate in investigations regarding alleged harassment;
  • A statement that information obtained during an investigation will be kept confidential to the extent consistent with a thorough and impartial investigation and permitted by law;
  • An assurance that the organization will take immediate and proportionate corrective action if it determines that harassment has occurred; and
  • An unequivocal statement that retaliation is prohibited, and that individuals who report harassing conduct, participate in investigations, or take any other actions protected under federal employment discrimination laws will not be subjected to retaliation.

The EEOC further recommends that employers provide their anti-harassment policy to its employees in several different ways, including:

  • At hire;
  • In the employee handbook;
  • At any anti-harassment training; and
  • Posting the policy in the workplace.

Finally, the EEOC recommends that employers translate the policy into all languages commonly used by employees.

With respect to training, the EEOC recommends that employers provide regular interactive, comprehensive anti-harassment training to all employees.

The EEOC further recommends that an employee-level training program should the following elements:

  • Descriptions of prohibited harassment, as well as conduct that if left unchecked, might rise to the level of prohibited harassment;
  • Examples that are tailored to the specific workplace and workforce;
  • Information about employees’ rights and responsibilities if they experience, observe, or become aware of conduct that they believe may be prohibited;
  • Encouragement for employees to report harassing conduct;
  • Explanations of the complaint process, as well as any voluntary alternative dispute resolution processes;
  • Explanations of the information that may be requested during an investigation, including: the name or a description of the alleged harasser(s), alleged victim(s), and any witnesses; the date(s) of the alleged harassment; the location(s) of the alleged harassment; and a description of the alleged harassment;
  • Assurance that employees who report harassing conduct, participate in investigations, or take any other actions protected under federal employment discrimination laws will not be subjected to retaliation;
  • Explanations of the range of possible consequences for engaging in prohibited conduct;
  • Opportunities to ask questions about the training, harassment policy, complaint system, and related rules and expectations; and
  • Identification and provision of contact information for the individual(s) and/or office(s) responsible for addressing harassment questions, concerns, and complaints.

With respect to managerial-level anti-harassment training, the EEOC recommends that these employees receive more in-depth training that also includes the following elements:

  • Information about how to prevent, identify, stop, report, and correct harassment, such as:
    • Identification of potential risk factors for harassment and specific actions that may minimize or eliminate the risk of harassment;
    • Easy to understand, realistic methods for addressing harassment that they observe, that is reported to them, or that they otherwise learn of;
    • Clear instructions about how to report harassment up the chain of command; and
    • Explanations of the confidentiality rules associated with harassment complaints;
  • An unequivocal statement that retaliation is prohibited, along with an explanation of the types of conduct that are protected from retaliation under federal employment discrimination laws, such as:
    • Complaining or expressing an intent to complain about harassing conduct;
    • Resisting sexual advances or intervening to protect others from such conduct; and
    • Participating in an investigation about harassing conduct or other alleged discrimination; and
  • Explanations of the consequences of failing to fulfill their responsibilities related to harassment, retaliation, and other prohibited conduct.

It is recommended that all employers review these new guidance materials and consider adopting most, if not all, of the EEOC’s recommended best practices.

NEW TOOL: The EEOC Makes It Easier For Employees To File Discrimination Charges

Watch out employers!  The EEOC has joined the digital age by rolling out its new online filing portal, or Public Portal nationwide.  With this new tool, employees are now able to easily initiate a charge with the EEOC.

Using this new system, employees are able to file a discrimination charge with the EEOC online.  In addition to filing a charge, employees are also able to use this system to manage an EEOC charge that was filed on or after January 1, 2016 if the charge is in investigation or mediation.  Specifically, employees who have filed an EEOC charge can use this new portal to:

  • Provide and update contact information;
  • Upload documents to the charge file;
  • Check the status of his or her charge;
  • Agree to mediation; and
  • Receive charge documents and messages from the EEOC.

Could your organization potentially be accused of Employment Discrimination?

Federal law (Title VII) prohibits discrimination based on: race, color, religion, sex (including pregnancy), national origin, mental or physical disability, age, gender, genetic information, and citizenship.

Recently Palantir Technologies in Palo Alto, CA settled a claim of $1.66 million for discrimination against Asian applicants in the hiring and selection process of their engineering positions, even though they employed and hired several Asian candidates. We can take away two lessons from this case:

  1. Take care when using an Employee Referral Program in your recruitment process.
    1. Although your best employees may refer great applicants, they may not refer an adequate flow of diverse applicants. The EEOC found that Palantir’s preference for referrals in the screening process resulted in disproportionate number of non-Asians in the applicant pool (adverse impact).
      • If you use an Employee Referral Program, find ways to assure you are encouraging a diverse applicant pool and test your results.
  2. Look at the numbers.
    1. The hiring ratio for 3 of Palantir’s engineering positions were found to be grossly discriminate.
    2. Check your hiring ratio’s.
  • One way to check your hiring ratio’s is by using the 4/5ths rule (or 80% rule). Although use of this test will not assure that the EEOC will not pursue a claim, it is one tool that they have used to show positive or negative diversity in the hiring process.
  • More recently the EEOC has been using a different hiring test. In the case against Palantir the EEOC compared the company’s hiring rate of Asian candidates to the rate that would likely occur if Palantir simply selected from the qualified candidate pool randomly. In this case, the position of Quality Assurance Engineer Intern Palantir hired 17 non-Asian’s and 4 Asian applicants (19%) from a pool of 130 qualified applicants (73% of the applicants were Asian). The EEOC concluded the likelihood that they would choose an Asian was 1 to 1 Billion.

Additional Information For Employers

South carolina employer Learns a $45K Lesson about Retaliation

Desco Industries, Inc. has agreed to pay $45,000 to settle a retaliation lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC).  In this lawsuit, the EEOC claimed that the company terminated an African American employee in retaliation for complaining about race discrimination.

According to the charge, the employee (Daniel Worthy) had been employed by Desco through a staffing agency.  During his employment, Worthy expressed interest in the forklift position to the warehouse foreman.  Based on his discussion with the foreman, Worthy was lead to believe that he was “next in line” for an open forklift position.

However, Worthy (who is African American) later saw a non-black employee operating a forklift and he complained to the staffing agency that he had been discriminated against because of his race.  The staffing agency passed the complaint onto the company and, within days of receiving the complaint, Worthy was terminated.

In its charge, the EEOC alleged that Worthy had been terminated in retaliation for complaining about discrimination.

This settlement serves as a reminder to all employers that employees who report suspected employment discrimin­a­tion are protected from retaliatory adverse employment actions under federal law.  Prior to terminating any employee, it is recommended that employers review the employee’s personnel file and verify that the employee has not recently engaged in any protected action (like reporting discrimination), which may make the termination appear retaliatory.  If there is a recent protected activity, employers should consult with an HR Professional or an employment attorney before terminating the employee.

Houston manufacturing facility Learns a $150K Lesson about Religious Discrimination and Retaliation

U.S. Steel Tubular Products, Inc., a subsidiary of United States Steel Corporation, has agreed to pay $150,000 to settle a religious discrimination and retaliation lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC).  In this lawsuit, the EEOC claimed that the company engaged in religious discrimination during its pre-employment drug screening process.

Specifically, according to the EEOC, the company had hired Stephen Fasuyi a member of the Nazirite sect of the Hebrew Israelite faith, as a utility technician. The job offer was contingent upon Fasuyi passing a pre-employment drug test.  The test used by the company was a hair follicle drug test, which requires cutting hair from the subject’s scalp, which went against Fasuyi’s sincerely held religious beliefs (the Old Testament forbids him from cutting hair from his scalp).  In accordance with this belief, Fasuyi refused to allow the drug testing company to cut hair from his scalp and, instead, offered alternatives — like pulling hair from his beard.  The company refused to entertain Fasuyi’s proposed alternatives, sent him home and, later, revoked the offer of employment.

In its charge, the EEOC maintained that  Fasuyi’s religious beliefs should have been accommodated during the pre-employment testing.

This settlement serves as a reminder to all employers that they are required to consider providing religious accommodations to job applicants when such accommodations are requested.