Tag Archives: Title VII

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: $4.5 Million Reasons to Engage In the Interactive process (and Provide reasonable Accommodation) to your disabled employees

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.

The Case

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.

“He Didn’t Say Hi To Me!” — The Reality Of Retaliation

In a recent decision (Bien-Aime v. Equity Residential), the United States District Court for the Southern District of New York held that while an employee’s ADA claim had no merit, the employee’s retaliation claim survived summary judgment, even though there had not been any adverse employment action and the alleged retaliatory conduct was merely “petty slights or trivial inconveniences”.

The Case

In this case, the employee was a groundskeeper at an apartment building in Manhattan who had filed a complaint with the state agency that he was being discriminated against because of his disability. Following the filing of this complaint, the employee filed lawsuit against his employer claiming that he had been discriminated against in violation of the Americans with Disabilities Act and had faced retaliation for filing the complaint.

The interesting part of this case, the employee was still working for the employer when he filed the lawsuit and had not faced any other tangible adverse employment action (e.g. demotion, loss of pay, etc.). Instead, the employee based his retaliation claim on the following types of conduct:

  1. The general manager of the apartment building “stopped saying good morning to him”;
  2. His direct supervisor “spoke to him without a ‘warm welcome’ in his voice’” and “continually monitored him at work”; and
  3. Both the general manager and the supervisor “talked to him like he was a criminal.”

In its motion for summary judgment, The employer argued that the employee’s retaliation claim failed because the employee had not faced any type of adverse employment action and the alleged acts were nothing more than “petty slights or trivial inconveniences” that are not actionable as retaliation under the ADA.

The Court disagreed, holding that even though the employee had not suffered any change in the terms and conditions of his employment as he was never discharged or demoted, and his job title, benefits, schedule, and pay all stayed the same, the different and arguably hostile treatment of the employee by his superiors would “dissuade a reasonable worker from making or supporting a charge of discrimination.” As a result, the retaliation claim will be heard by a jury.

Take home for employers

While this claim has not yet been resolved, it teaches all employers a valuable lesson regarding the broad spectrum of conduct that can be considered retaliatory. Many state and federal statutes (like the ADA, Title VII, and related state statutes) prohibit employers from discriminating against a person in a protected class. These statutes also prohibit employers from retaliating against employees for seeking statutory protections. Unlawful retaliation encompasses not only “punishing” the employee for engaging in the protected activity, but also engaging in conduct that could “send a message” to other employees that they will be treated differently if they complain – in other words, discourage other employees from seeking statutory protections.

In order to protect your organization from a retaliation claim, it is critical that all employers implement a policy prohibiting unlawful retaliation. In addition, all supervisory and Human Resources staff should receive training about retaliation and how to properly respond to complaints. Most importantly, when a complaint is received, managers, and supervisors should be reminded of their non-retaliation obligations.

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

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.

Remember Employers — Religious Accommodation Is Not Optional

The EEOC recently filed a lawsuit against a South Carolina trucking company for religious discrimination.

The Claim

The company refused to grant religious accommodation to a Hebrew Pentecostal truck driver who told them that he could not work on the Sabbath for religious reasons. Rather than engage in the interactive process and discuss potential accommodations, the company fired the employee.

Why Should I Care?

Within the past year, the EEOC has pursued several religious discrimination claims relating to an employer’s failure to accommodate an employee’s religious belief and many of those claims involved an employee requesting an accommodation to not work on the Sabbath.

In light of this trend, employers need to remember that an employee’s religious practices and beliefs must be accommodated by an employer — unless it creates an undue burden for the company. In addition, employers are required to engage in the interactive process with the employee to determine the type of accommodation that can be provided. In short, as noted by the EEOC, “employers have an obligation to endeavor to fairly balance an employee’s right to practice his or her religion and the operation of the company.”

The EEOC has developed information to educate employers, employees, and the public about religious discrimination, including Questions and Answers: Religious Discrimination in the Workplace and Best Practices for Eradicating Religious Discrimination in the Workplace. Last December, EEOC released documents for employees and employers that focused on discrimination against people who are or are perceived to be Muslim or Middle Eastern, and an accompanying background summary.

It is recommended that employers review these materials and provide training to their management staff regarding providing religious accommodation.

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.

Mind the Gap — A Large “gap” in time may not insulate your company from a retaliation claim

Many employers believe that the passage of time between an employee’s protected activity and an adverse action weakens a potential retaliation claim. However, a recent Mississippi case (Pace v. Alfa Mutual Insurance Company) shows that under the right circumstances, an employee’s retaliation claim can survive a large gap (in this case 13-year gap) between the alleged protected activity and the adverse action.

The Case

In 2000, the plaintiff was asked to participate in a sexual harassment investigation relating to his manager (the Executive Vice President). The plaintiff gave evidence that led the company to conclude that the manager had, more likely than not, sexually harassed the complaining employee and the manager was given the opportunity to retire in lieu of termination.

In 2013, following a change in leadership within the organization, the manager was rehired to resume his role as Executive Vice President. The plaintiff brought his concerns to the President of the company and the President assured the employee that he was a “bright spot in the organization” and that he had “nothing to be concerned about.”

However, once the manager returned to work, he made it clear to the plaintiff that he had not forgotten the plaintiff’s role in the sexual harassment investigation. According to the plaintiff’s complaint, shortly after his return, the manager demoted him to a district manager position in another part of the state. This was a two-step demotion that also involved a location transfer.

Rather than accept the demotion, the plaintiff resigned and filed a retaliation lawsuit against the Company under Title VII.

The Company argued that too much time had passed between the plaintiff’s protected activity and the alleged retaliation. However, the Court disagreed. Discounting the time that the manager had been away from the Company, the Court found that the manager carried out what could be considered retaliatory conduct in a very close temporal proximity to the plaintiff’s protected activity.

Take Home For Employers

While this case is clearly the exception, there is still a valuable message to employers. When considering rehiring a former employee, be sure to review the reasons for the former employee’s departure from your company and carefully evaluate whether you want the employee to return.

Is a Mandatory Flu Shot Policy A Cost Effective Solution for Employers?

Not according to a recent $300,000 settlement with the EEOC.

In September of 2016, the EEOC filed a lawsuit filed Saint Vincent Health Center (located in Pennsylvania) because it had implemented a mandatory seasonal flu vaccination requirement for its employees unless they were granted an exemption for medical or religious reasons. Under the policy, employees who received an exemption were required to wear a face mask while having patient contact during flu season in lieu of receiving the vaccination. Employees who refused the vaccine but were not granted an exemption by the Health Center were fired.

According to the EEOC’s lawsuit, six hospital employees requested religious exemptions from the flu vaccination requirement, but those requests were denied by the Health Center.  The six employees were later terminated because they refused to be vaccinated against the flu.  During the same time period, fourteen other employees were granted a religious exemption, which excused them from getting the vaccine.

The EEOC alleged that the Health Center’s policy was implemented in a discriminatory manner that specifically discriminated against the six terminated employees because of their religious beliefs.

What does this mean for employers?

Employers need to proceed with caution when trying to implement a mandatory flu vaccination policy and must be prepared to accommodate those employees who request to be excused from the vaccine requirement for a religious reason.  As explained by the EEOC’s Philadelphia District regional attorney, Debra M. Lawrence:

While Title VII does not prohibit health care employers from adopting seasonal flu vaccination requirements for their workers, those requirements, like any other employment rules, are subject to the employer’s Title VII duty to provide reasonable accommodation for religion. In that context, reasonable accommodation means granting religious exemptions to employees with sincerely held religious beliefs against vaccination when such exemptions do not create an undue hardship on the employer’s operations.