Tag Archives: sex discrimination

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.”

Employers May Not Rely on Salary History for Current Pay Rate

In a ruling sure to upset some employer’s current pay practices, the Ninth Circuit Court of Appeals ruled that “prior salary alone or in combination with other factors cannot justify a wage differential” between male and female employees. The ruling addressed pay differentials under the federal Equal Pay Act.

The Equal Pay Act

The Equal Pay Act prohibits employers from engaging in sex discriminating by paying an employee at a rate less than the rate at which the employer pays an employee of the opposite sex for equal work on jobs requiring equal skill, effort, and responsibility and which are performed under similar working conditions.

The Act permits pay differentials between male and female employees when done in accordance with one of the following:

  • A seniority system;
  • A merit system;
  • A system which measures earnings by quantity or quality of production; or
  • A differential based on any other factor other than sex.

This recent case addressed a pay differential under this last exception, the catchall provision. Continue reading Employers May Not Rely on Salary History for Current Pay Rate

Vermont Becomes Fifth State to Pass Salary History Ban

Vermont has joined the trend among states of banning salary history inquiries by employers by passing its own ban.  Effective July 1, 2018, Vermont employers will no longer be permitted to inquire about applicants’ salary history information.

Prohibited Acts and Inquiries

Under the new law, Vermont employers will be prohibited from:

  • Inquiring about or seeking information about a prospective employee’s current or past compensation from the prospective employee or his or her current or former employer;
  • Requiring that a prospective employee’s current or past compensation satisfy minimum or maximum criteria; or
  • Determining whether to interview a prospective employee based on his or her current or past compensation.

Permitted Act and Inquiries

If an applicant voluntarily discloses information about his or her current or past compensation, employers may, after making an offer of employment with compensation to the applicant:

  • Seek to confirm the applicant’s voluntarily disclosed salary history information; or
  • Request that the applicant confirm the voluntarily disclosed information.

Employers may also: Continue reading Vermont Becomes Fifth State to Pass Salary History Ban

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.

NEW CASE: Court Confirms Missouri Human Rights Act Prohibits Workplace Sex Stereotyping

In a recent decision (Lampley v. MCHR), the Court of Appeals for the Western District of Missouri has held that sex stereotyping is a form of gender discrimination that is actionable under the Missouri Human Rights Act (MHRA).  This ruling potentially extends the protections afforded under the MHRA to LGBT employees.

The Case

In this case, the employer had terminated two employees – one was an openly gay man and the other was his female coworker (and close friend).  Following their termination, both employees filed discrimination claims under the MHRA with the Missouri Commission on Human Rights (MCHR).

The female employee claimed she was terminated because of her close friendship with the male employee.  The male employee claimed that he was discriminated against because his behavior and appearance contradicted the stereotypes of maleness held by his employer and managers.  He further claimed that he was treated differently that other male employees who conformed to gender stereotypes.

The MCHR viewed the male employee’s charge as one alleging discrimination on the basis of sexual orientation (which is not a protected class under the MHRA) dismissed the male employee’s charge.

The male employee then filed a lawsuit against the MCHR arguing that the MHRA did cover sex stereotyping and the MCHR had jurisdiction over the claims.  The trial court disagreed with the male employee holding that under Missouri law “neither sexual orientation nor gender stereotyping are protected classes” and dismissed the lawsuit.  The male employee then appealed the trial court’s ruling

The Holding

In a unanimous decision, the Court held that the MHRA’s prohibition of sexual discrimination extends to cases where sex stereotyping is used as a form of discrimination (i.e. where an employee is treated differently from similarly situated members of the opposite sex.).

While this case is a step towards extending MHRA protections to LGBT employees, the Court did not decide that sexual orientation discrimination is a de facto form of sex discrimination.  That is an issue yet to be determined.

Take Home for Employers

Based on this holding, Missouri employers should tread carefully with their LGBT employees and verify that their handbooks and corporate policies reflect that gender stereotyping in the employer’s workplace is not permitted.

The Verdict is in — Sexual Orientation is a protected class under Title VII

Is sexual orientation discrimination prohibited under Title VII?

This question, which has long plagued employers, has been recently decided by the Seventh Circuit Court of Appeals. In a landmark decision (Hively v. Ivy Tech Community College of Indiana), the 7th Circuit held that discrimination on the basis of sexual orientation is a form of discrimination that is prohibited under Title VII. This holding aligns with the position taken by the EEOC in its July 2015 administrative decision (Baldwin v. Foxx) that “sexual orientation is inherently a ‘sex-based consideration’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII”.

The Case

The plaintiff (Hively) was a lesbian and was open about her sexual orientation. She had been working as a part-time adjunct professor for Ivy Tech Community College for several years. Throughout her employment with the college, Hively applied for several full-time positions for which she was qualified, but she never received an interview. In 2014, the college failed to renew Hively’s contract for the 2014-2015 academic year – effectively terminating Hively’s employment with the college.

Following her termination, Hively filed a lawsuit in the Northern District of Indiana claiming that she was terminated in violation of Title VII – specifically that she was discriminated against because of her sexual orientation.

The college argued that Title VII’s protections did not extend to sexual orientation discrimination and, the trial court agreed – dismissing Hively’s claims.

Hively, however, appealed her case to the Seventh Circuit. After a long battle in court, the 7th Circuit concluded that “discrimination on the basis of sexual orientation is a form of discrimination” and that it “would require considerable calisthenics” to remove the “sex” from “sexual orientation” when applying Title VII to a claim of discrimination based on sexual orientation..

Why Should I Care?

This decision is significant to employers across the United States because this is the first case where a federal appellate court has confirmed that sexual orientation is a protected class under Title VII.

While several states (California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Utah, Vermont, Washington, and Wisconsin) have already included sexual orientation (and, in some cases, gender identity/transgender) under their state anti-discrimination laws, this case sends the message to all employers that Title VII’s protects private workers based on sexual orientation and gives LGBT plaintiffs in other Circuits ammunition to fuel the argument that Title VII protections extend to the LGBT workforce.

In light of this decision, it is recommended that employers in the Seventh Circuit take steps to verify (and ensure) sexual orientation is treated the same as any other protected class in all aspects of their business. This includes updating handbook policies to specifically include sexual orientation to the list of protected classes, training managers and supervisors about the new LBGT protections and verifying that the organization’s hiring, discipline and discharge procedures comply with Title VII.

For employers outside of the Seventh Circuit, this case may be a sign of things to come in your own jurisdictions. It is advisable that employers in states whose state anti-discrimination statutes do not have express protections against sexual orientation practices strongly consider taking similar steps to ensure that sexual orientation is treated the same as any other protected class in all aspects of their business.

Another Costly Lesson about Sex Discrimination

Nestlé Waters North America, the world’s largest bottled water company, has learned a $300,000 lesson about sex discrimination. The company recently settled a lawsuit with the EEOC relating to sex discrimination.

In this case, the company had created a new position (business manager) in its Florida office, One of the applicants (a female employee who had been with the company for 20 years) was overlooked for the position and instead the company hired a male employee who did not meet the minimum requirements for the role as described in the job description. The company later terminated the female employee as the result of a purported “consolidation;” however, of the 14 Florida zone managers and zone manager supervisor positions, only the female employee lost her job as a result of this consolidation.

Following the filing of the lawsuit, the company settled the claim for $300,000. The company is also required to develop and implement an anti-sex discrimination policy and to provide annual training regarding all forms of sex discrimination, including sex stereotyping, to its Florida management team.

Take home for employers

This case serves as an important reminder for employers regarding discrimination in the workplace.

When making hiring decisions, employers must exercise caution and hire the best candidate for the job regardless of gender (or any other protected class). If an employee is hired who does not meet the minimum qualifications for a job (based on a job description developed by the employer), this could serve as an indicator of a unlawful basis for the hiring decision – especially if a better-qualified candidate is rejected.

When making termination decisions, these must also be made with caution and not based on an employee’s protected class.

How Good Intentions Can Cost $3.1 Million

“The road to Hell is paved with good intentions.” All too often, this statement rings true in employment.

Employers implement policies, in part, to address existing problems in the workplace. However, sometimes those well-intended solutions expose the company to even more liability – like in the following case, where the cost of this well-meaning solution was over $3.1 million.

The Case

In 2004, New Prime Trucking, Inc., one of the nation’s largest trucking companies, adopted a same-sex driver training policy. Under this policy, a male trainee must be trained by a male trainer and a female trainee must be trained by a female trainer.

The company adopted this policy following an EEOC lawsuit where the company was found to have violated Title VII based upon the sexual harassment of one of its female driver trainees. To avoid further sexual harassment claims, the company implemented a same-sex driver training policy.

While the company certainly had good intentions for implementing the new policy, there was an unintended discriminatory result, which the company left unresolved. The company had very few female trainers. Therefore, under the new policy, male trainees were promptly assigned a trainer, while female trainees were forced to wait excessively long periods of time for training – sometimes as long as 18 months. The result, most female drivers were denied employment with the company, while male drivers were promptly employed.

The company repealed the policy in 2013, after receiving a sex discrimination charge from the EEOC, but the damage from the same-sex policy was already done. After a trial, the company was ordered to pay over $3.1 million in damages and was also ordered to give priority hiring consideration to the affected female drivers and make them immediately eligible for benefits without a waiting period.

Take home message for employers

When implementing new policies, take the time to consider all ramifications of a proposed policy, especially the potential for a policy to be deemed discriminatory.  Be sure to run any risky policies by an HR professional or qualified employment attorney before adopting the policy.