Employment Discrimination Report : New York Attorneys & Lawyers for Labor Discrimination Defense : Fox Rothschild LLP

An African-American employee in NYC who was subjected to daily physical and verbal abuse for 1½ years just settled his case for $190,000, the EEOC announced.

The foreman of Day & Zimmerman NPS, a leading supplier to the power industry, often tripped the employee and once kicked him.  He told racist stories and jokes where African-Americans were referred to as “stupid” and “incompetent,” said that an African-American in the news “deserved to be shot,” and said that candidate Obama “would be shot before the country allowed a black president.”  

The EEOC said that "[the employee] complained to management many times for more than a year regarding the harassment, and that when Day & Zimmerman finally arranged a meeting in response, it disciplined [him] less than an hour later, and then fired him that same day, citing a false safety violation as a reason.”  

Readers:  We cite these outrageious cases because some of you are so appalled that you think that these cases are made up. 

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This is what management of Florida’s Prestige Transportation Service allegedly told its HR manager with respect to hiring African-Americans, according to a newly filed EEOC Title VII class action lawsuit. The EEOC claims that the company refused to hire African-Americans.

The complaint alleges, among other things, that management also regularly told its HR manager that it would be a "waste of paper" to give African-Americans employment applications and advised her not to do so. 

Assuming that these claims are true, it is not often these days that in the hiring process such blatantly discriminatory (as opposed to hostile or harassing) acts or comments occur with such brazen openness, and then go on to become court cases.  I guess that in some ironic way this may be considered a measure of progress.

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A new federal Title VII lawsuit was just filed in California alleging that the NCAA’s 2011 rule which permanently bars, among other things, convicted felons from coaching in NCAA-certified tournaments, discriminates against African-Americans.  See Hardie v. National Collegiate Athletic Association et al, 3:13-cv-00346 (S.D. Ca).

The complaint alleges that “Policies that categorically exclude individuals with felony convictions are known to have a disparate impact on African-Americans. … African-Americans are arrested, charged and convicted of drug crimes at greater rates than whites, even though usage rates are similar.”

We blogged on April 29, 2012 that there is nothing in Title VII that deals with people with a criminal history being in a protected class. That is, it does not bar employers from asking job applicants or employees about arrests, convictions or incarceration. However, we know that discrimination may involve an employment practice or policy which has a “disparate impact” upon members of a protected class.

Employers should note that the EEOC is sensitive to the “disparate impact” which criminal background checks (as well as, for example, credit screening), may have on protected classes, and therefore may violate Title VII. This is not a new issues; the EEOC has been wrestling with this issue since at least as far back as 1987.

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Many of you were justifiably horrified by the case discussed in our February 4^th post, and expressed disbelief that the case discussed did not receive greater publicity. 

It dealt with a jury's punitive damage award to an African-American employee who was subjected to racial slurs such as the N-word, and displays of a noose in the workplace.  We commented that even as jaded as we are, since we tend to write about each such case, we nonetheless “are still shocked when egregious racial claims of this type are filed.”

Consider now a case out of Texas of a 51-year-old Muslim-American of Palestinian ethnic origin, who claimed that three to four times per week his boss called him “towelhead,” “raghead,” “rock thrower,” “sand nigger,” “terrorist,” “fucking Palestinian,” “shithead” or “fucking Muslim.” He complained to his finance director and was fired, and then sued alleging, among other things, a hostile work environment based on religion and national origin.

The company’s main contentions on its summary judgment motion were that (1) these comments were not of a frequent and continuous nature, and so the alleged harassment was not severe or pervasive enough to affect a term, condition, or privilege of his employment; and (2) since the same person who fired him had hired him, the company was entitled to interpose a “same actor inference” —  that is, a strong inference that discrimination was not a determining factor for any adverse action taken.  

The Court, however, found that the ethnic and religious comments were severe and frequent, and that the employee presented testimony that because of it the work place felt "like a ‘war zone.'”  Using “the totality of the circumstances test,” the Court held that the employee “has presented sufficient evidence to raise a genuine dispute of material fact as to whether the harassment that he suffered was sufficiently severe or pervasive as to create a hostile work environment.  While none of the incidents alone is likely enough to establish severe or pervasive harassment, when considered together and viewed in the light most favorable to [the employee], the evidence demonstrates a frequent and continuous pattern of harassment over a period of six months that is sufficient for a reasonable jury to conclude that [he] established a claim of discrimination under Title VII based on religion and national origin.”

The Court also held that the “same actor inference” did not apply in hostile work environment cases, but instead was used during the pretext stage of the McDonnell Douglas burden-shifting analysis.

Anyone else out there still "shocked" that such cases still exist in the US? 

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We recently read an Associated Press report about a female prison guard in Iowa who sued prison officials on these grounds, claiming that the movies caused the inmates to become sexually aggressive. She filed complaints with the officials and alleges that when they finally acted by largely barring movies with sexually explicit content, inmates blamed her for this and subjected her to insults and threats to kill her, and threw urine on her.  

Third-Party Harassment

This kind of claim is known as “third-party harassment,” and was the topic for our blog on December 27, 2012. We reminded readers that, as the EEOC stated recently, “courts have concluded that an employer may be liable for the harassment of its employees by non-employees if the employer knew or should have known of the harassment and failed to take appropriate corrective action to stop it (emphasis added).”  

Citizen Harassment of Public Employees

The situation of our prison guard is within a subset of “third-party harassment” claims known as “citizen harassment of public employee” claims.  These cases are difficult because a municipal employer has little control over acts of citizens who harass government employees. 

There have not been many cases involving “citizen harassment of public employees.”  The one we spoke of on December 27^th involved a public employee who claimed that she was sexually harassed at a public meeting because the commissioners conducting the meeting, at which she was secretary, “failed to protect her from criticism” leveled at her from two county residents. She lost her case, but we speculated that if the residents, instead of merely criticizing her, had made sexually harassing comments to her, we might well be within the realm of actionable “citizen harassment of public employees.”

Harassment of Peace Officers

This is where a line of cases arising out of the harassment of prison employees comes in, which we discussed on November 19, 2012.   In a recent guidance letter involving harassment of police officers by citizens, the EEOC cited the case of Cromer Food, but found no cases involving police officers, so instead looked to Title VII cases where prisons were sued for harassment of employees by inmates.

While noting the “practical and constitutional limits on the steps [the prison] can take to protect staff from inmate harassment,” the EEOC quoted one federal appeals court which stated the "general rule of reasonableness regarding employer liability for third-party harassment under Title VII adequately respects the difficulties that prison officials encounter in controlling inmate conduct. …  Although some harassment by inmates cannot be reasonably avoided, [a prison], on the other hand, cannot refuse to adopt reasonable measures to curtail harassment by inmates."

Conclusion of the EEOC

The EEOC concluded that there could be Title VII liability based upon “the reasonableness of the employer's corrective action [which] would depend on the totality of the circumstances.”  These circumstances could include the nature of the harassment, the specific context, and the practical limitations on the employer's ability to respond.

The lawyer for our prison guard said that her lawsuit is aimed at forcing the prison administration to create a workplace environment that is free from sexual harassment and threats of violence from inmates, and to allow employees to file complaints without fear of retaliation. “No private employer could get away with this,” she said.

So -- does our prison guard have a good case?   Maybe -- it seems to us that the case will likely turn on the ultimate findings of fact, and the reasonableness of the prison officials permitting the inmates to watch the offending videos.  Also likely will be expert witness testimony on the effect of such videos, which may end up in the thicket of the current (and endless) debate on whether there is a cause and effect between video watching and violent behavior.

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A lot has been written lately about a decision from a federal court in Ohio which some commentators claim (with shock) elevates veganism to a religion.   The Court, however, did not do that.

A few relevant facts are in order. Plaintiff, an employee at a hospital, refused a flu vaccine upon the grounds that she was a vegan, and as such, did not ingest animal products or by-products (such as go into vaccines), “a moral and ethical belief which [she] sincerely held with the strength of traditional religious views.”   She was fired, and sued under Title VII for religious discrimination.    

The employer claimed that “in its view veganism does not qualify as a religion, but rather is no more than a dietary preference or social philosophy.”  

The Court held that “at this early stage of the litigation” and “in the context of a motion to dismiss, it merely needs to determine whether Plaintiff has alleged a plausible claim. The Court finds it plausible that Plaintiff could subscribe to veganism with a sincerity equating that of traditional religious views (emphasis added).”

The Court therefore did not hold that veganism is a religion, or that Title VII includes vegans in a protected class, but, it seems to me, simply decided (wisely) not to become embroiled at the beginning of a lawsuit in an argument as to what is a religion and/or what is the meaning of a belief “sincerely held with the strength of religious views.”     

As a footnote, please be aware that, as my partner Jeff Polsky aptly noted last week in his California Employment Law blog, courts in California have previously held that vegans cannot sue for religious discrimination, and the decisions nicely discuss the countervailing legal and philosophical arguments.  

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Our last blog on the subject reported that the EEOC had sued a Comfort Inn franchisee who fired a housekeeper when it learned that she was pregnant, contending that “it could not allow her to continue to work as a housekeeper because of the potential harm to the development of her baby.” An EEOC attorney said at the time that "Employers may not bar pregnant employees from work because of outdated myths or stereotypes.” 
 

Well, an Arizona restaurant learned this lesson too late and has now agreed to pay $15,000 to settle an EEOC discrimination lawsuit which alleged that it unlawfully removed a pregnant employee from working on Sundays during football season because she was pregnant.
Working on football Sundays was one of the most lucrative shifts, and the restaurant had a policy of denying these shifts to pregnant employees “in an attempt to allegedly satisfy its male Sunday football customers. … because it believed its male customers did not wish to see pregnant women while they watched Sunday football games.”

This time an EEOC attorney stated that "Employers cannot disadvantage the terms and conditions of a pregnant employee's work to satisfy  an assumed customer preference about the physical appearance of employees, which is likely untrue in any event."

Seems that pregnancy still still has some folks believing in "outdated myths or stereotypes" and "assumed customer preference" as a reason to discriminate.

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Two EEOC regional attorneys, panelists at a Practising Law Institute conference last week, discussed a number of issues which should be of concern to employers regarding the EEOC’s future plans and practices.

Among a wide range of topics, they told the gathering that:

1.  The EEOC continues to emphasize systemic litigation, or nationwide/regionwide class cases, because such cases mean “getting a bigger bang for the taxpayer's buck.” Case filings are down at the EEOC, partly because “we are grossly understaffed,” and because of the EEOC's focus on systemic litigation.

2.  A strategic enforcement plan (“SEP”) has been drafted by the EEOC which currently has three guiding principles: (1) targeted enforcement; (2) an integrated approach to public sector and private sector enforcement; and (3) accountability. The EEOC considers four primary factors in deciding whether to pursue litigation on a filed charge:

-- does the case potentially affect a large number of claimants;

-- what area of the law does the charge involve;

-- does the charge allege bias against a vulnerable worker or group of workers; and

-- might the case have a significant impact in shaping the law on a particular subject.

3.  The EEOC's current litigation priorities are on cases which:

-- allege systemic discrimination, especially in recruitment and hiring;

-- involve immigrant, migrant, or other vulnerable workers;

-- implicate emerging legal issues, including under the ADA Amendments Act, discrimination against members of the lesbian, gay, bisexual, and transgender (LGBT) community, and forced unpaid leave as an accommodation for pregnant workers;

-- preserve individuals' access to the legal system, such as cases involving employers' attempted curtailment of employee job rights, including through overbroad waivers; and

-- combat sexual harassment.

4.  The EEOC will likely target the following policies and practices:

-- “fixed-leave” policies, which are unlawful under the ADA amendments, as well as what is known as “100-percent healed policies,” in which an employer requires an employee to be 100 percent healed before returning to work from medical or disability leave. One EEOC attorney said that employers have implemented these types of policies to provide more rigid rules for supervisors to follow, “But they won't work, however. We will be litigating these cases.”

-- using a standard one-size fits-all form request for ADA accommodations. Written accommodation forms may be permissible, but where a standard form is the only acceptable means of requesting an accommodation this runs afoul of the law.

-- Genetic Information Nondiscrimination Act (“GINA”) cases, where the EEOC has made “cause findings” on a number of charges, although most have settled.

-- the use of criminal records in hiring, which the EEOC may pursue as systemic cases.

5.  There likely will be no increase in Equal Pay Act cases since, as one EEOC attorney noted, low-income workers can receive better damages under Title VII, which permits compensatory awards.

We will keep you updated on the cases which the EEOC files and whether we detect a pattern or an area which the EEOC is targeting

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The short answer is “no,” because the employee’s prima facie case of retaliation can be rebutted by showing a legitimate, non-retaliatory reason for the termination.  

As our readers are well aware, retaliation is far easier to prove than any underlying discrimination and that even if the underlying claim of discrimination has no merit, retaliation can still be proved. All that must be shown to make out a claim for retaliation is (1) the employee’s filing of a claim or complaint of discrimination, (2) an “adverse employment action” by the employer, and (3) some causal link between the two.  

A decision coming from a federal court in North Carolina illustrates nicely that in spite of a prima facie showing, an employer can still show that the termination was based upon legitimate, non-retaliatory reasons.  In that case, an African American county transportation planner filed a charge of race discrimination with the EEOC in 2010. He also sent an 81-page letter to the County Manager in which he made comments which caused alarm that he could become violent.  For example, in the letter he said that “The tidal wave is impending … I shall deal with this matter.”

Plaintiff was placed on administrative leave and directed to undergo a fitness for duty evaluation, but was ultimately fired when he cancelled the appointment, did not reschedule it, failed to respond to the County's attempts to contact him by telephone, failed attend a scheduled evaluation and failed to maintain his availability during administrative leave. 

The County did not dispute that plaintiff established a prima facie case of retaliation since he made a complaint about discrimination in his letter and EEOC charge, his firing was an adverse action, and it took place in close temporal proximity to the letter and EEOC charge. However, the County contended that he was fired for legitimate, non-retaliatory reasons – i.e.,  because he cancelled his fitness for duty evaluation, did not reschedule it, and did not remain available as instructed while on administrative leave.

The Court agreed that plaintiff indeed made out a prima facie case of retaliation, and that under the McDonnell Douglas test, the burden then shifted to the County to articulate a legitimate, non-retaliatory reason for the firing, which the Court held that the County did.  Under McDonnell Douglas, plaintiff then was required to show that the County’s articulated reason was a pretext, which plaintiff failed to do.   

Notwithstanding the availability of defenses to a retaliation charge, we still strongly advise an employer to take a “business as usual” approach to a charging or complaining employee, to treat that employee like any other employee, to engage in open, non-intimidating communication with the employee to find common ground while the investigation or litigation is pending, and, of course, to document all decisions and pre and post-complaint performance issues that might result in discipline.

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The EEOC sat on an employee’s discrimination charge for six years.  Nothing remarkable about a delay at the EEOC, except for the extraordinary length of time.  When the employee received his long awaited notice of right to sue from the EEOC on October 4, 2011, he filed suit on December 28, 2011.  After more than six years, the employer was justifiably irritated.  

The employer sought to dismis the case under the doctrine of “laches,” contending that the employee did not file suit in timely fashion but instead “allowed his charge to languish at the EEOC, failing to identify any excuse for his six-year delay,” which delay, the employer claimed, materially prejudiced it. (Laches is an old equitable doctrine which can be raised by a defendant seeking to throw out a case by a plaintiff who unreasonably delayed filing the case thus causing prejudice to the defendant).

A federal court in Illinois held that the employer failed to demonstrate the absence of a genuine factual dispute regarding the issue of prejudice resulting from the six-plus year delay, even though the employer claimed prejudice “because witnesses who worked with [the employee] in 2005 will not be available; the witnesses who are still available will have incomplete memories of the events; crucial evidence may have been lost or destroyed in the interim; and the delay would subject [the employer] to increased back pay liability.”  The Court called all but the last of these arguments “speculative,” and as to the issue of back pay, the Court said it could determine later whether to reduce any back pay award due to unreasonable delay.

Interesting that the fact that the delay was caused by the EEOC was not discussed in the court’s opinion, nor that the EEOC’s delay arguably should not be held against the employee, who it was said, “allowed his charge to languish.”

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Title VII is what is known as a “make whole” statute. That is, the court is directed to use its power to fashion whatever relief is necessary and required to “make the plaintiff whole,” and/or uphold the purposes of the statute.

In a stunning new decision involving egregious sexual harassment, a federal appeals court in New York held that the trial court abused its discretion in not issuing an injunction to prevent the harasser from being in a position to continue his harassing conduct.

The owner of a small grocery store in upstate New York hired a store manager with whom she quickly became romantically involved. The manager repeatedly verbally and physically sexually harassed many of the young women working in the grocery, some of whom were only 16 years of age.

One woman complained that he would frequently “brush her breast with his arms, come up behind her and put his crotch against her buttocks and whisper in her ear or breathe on her neck, put his hands on her hips and squeeze, rub her shoulders, put his arm around her and hug, or walk by so closely that his hand would brush her buttocks.” Another woman said that he “touched her almost every time he found her alone by massaging her shoulders, touching the back of her hair, and rubbing her thigh.”

The grocery had no anti-harassment policy and no formal complaint procedure, but several women complained to their supervisors about the manager’s conduct. The result of their complaints were termination of some of the women, no follow-up on the part of the management, and the owner crying and deciding that the complaints had no merit.

A jury awarded the ten women plaintiffs $1.2 million in punitive damages, and the EEOC asked the court for an injunction because the grocery “has not adopted adequate measures to ensure that harassment of the kind at issue in this action does not recur.” The EEOC noted to the court that the owner and the manager were still in a romantic relationship, that after the trial, the manager continued to publicly deny that he had engaged in any sexual harassment, that he continued to be a presence at the store since he became a produce contractor for the store, and that there was no proscription to his being rehired.

The trial court denied the EEOC’s request for an injunction, stating that the requested relief was overly burdensome since it would last ten years and “requires the [store] to alter drastically its employment practices and hire an independent monitor whom, together with the EEOC, will review and critique any present or future employment practices with respect to sexual harassment.”

On appeal, the Court held that under Title VII, “[i]f the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate. ... Once a violation of Title VII has been established, the district court has broad, albeit not unlimited, power to fashion the relief it believes appropriate.”

The appeals court stated that “this is not an ordinary case,” and found that the trial district court “abused its discretion” by not ensuring by way of an injunction that the manager “is no longer in a position to sexually harass [store] employees.” The Court stated that “we conclude that, at minimum, the district court exceeded the scope of its discretion in declining to order (a) that [the grocery] is prohibited from directly employing [the manager] in the future, and (b) that [the grocery] is prohibited from permitting [the manager] to enter its premises.”

Although “this is not an ordinary case” in that the harassment was so egregious and widespread, the harasser was involved with the owner, the harasser and owner denied the claims, employees were fired for complaining, and the harasser was still frequenting the store, this case stands for the proposition that under Title VII a court has broad powers to fashion an appropriate remedy, and that in the appropriate case not exercising its broad power may be an abuse of discretion.

(Note:  unfortunately, what makes this a typical case is that the store had no anti-harassment policies and no formal complaint procedure).

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Last year we asked whether a vulgar parrot could create a hostile work environment. This arose from a real case where a parrot who was kept by a patient in an expensive long term care facility repeatedly shouted sexual imprecations to the attending female nurse, who was none too happy about it. She complained to her supervisor about the hostile work environment but she was laughed off. She sued for sexual harassment. and won.  

We asked the question: Can the parrot be liable for sexual harassment?

The better question, we noted, should be: Can an employer be liable for creating a hostile work environment if it permits sexual comments to be made to an offended employee, whether by a parrot, a co-worker, or a mail deliverer?

A new case illustrates what happens when non-employees sexually harass an employee. A female employee at a hospital claimed that she was harassed by a doctor and anesthesiologist who worked as independent contractors. The doctor was not an employee and was paid directly by patients, and was merely affiliated with the hospital in that he performed medical work there and was allowed staff privileges. The anesthesiologist worked at the hospital as an independent contractor.

The doctor made sexually explicit comments to the female employee, asking her to “go out to a motel to have sex.” She complained about this to the hospital's personnel director, but the harassment continued. Then doctor asked told her that he wanted “a piece of that” and that the two should “go to bed” together, and while they were performing an X-ray together he began making “sexual jokes” and rubbed his genitals across her back. He later spanked her bottom as he passed her.

She claimed that the anesthesiologist also used “hostile and sexual language” toward her on a number of occasions during the same time period, and rubbed her backside with his genitals.

The Court rejected the hospital's argument that it could not be held liable for the alleged harassment because the doctor and anesthesiologist were not hospital employees.   The Court held that: “[A] plaintiff's employer may indeed be liable for a non-employee's acts of harassment under Title VII if it knows or should have known of the conduct and fails to take immediate and appropriate action.”    See  Santos v. Puerto Rico Children's Hosp.,  

As we said last year, the moral of the story is simple -- a hostile work environment can be created in any way or by any means if the employer does not address an employee's complaint that the workplace is hostile or that she has experienced sexual harassment .

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A proposed ordinance in Helena, Montana which would prohibit sexual orientation discrimination is being opposed by those who cite a recent EEOC decision which held that under Title VII discrimination against a transgendered individual is a form of sex discrimination. They argue that the proposed ordinance is unnecessary because this EEOC decision could be applied to cases of gender-based stereotypes and “also impact gender-based stereotyping claims filed by lesbian, gay and bisexual individuals.”

Said the Mayor, “If I’m understanding this right, the goals of the people who are advocating our city ordinance are going to be met, as long as this EEOC decision stands.”
 

The EEOC decision cited in Helena was the subject of our April 25th blog, where we commented noted that transgendered individuals can now file charges of such discrimination with the EEOC. In that case, a transgendered woman was refused hiring after she disclosed her transgendered status. Although the EEOC did not pass upon the merits of her case, it nonetheless ruled that under the famous Supreme Court case of Price Waterhouse v. Hopkins where the Court held that sex discrimination under Title VII related to gender, as well as biological sex, “gender discrimination” included discrimination against transgendered people.

The opponents of the Helena bill fail to note that the EEOC decision has not as yet been reviewed or tested by any court, and, in any event, only applies to transgendered individuals, not to gender stereotypes or gender identiity.   As Helena City Commissioner Katherine Haque-Hausrath commented, “Plenty of lesbian and gay people conform to gender stereotypes. I don’t think we can necessarily hang our hat on that.”

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Apropos to our blog entry of October 9th, where we described the EEOC’s targeting of cases of harassment and abuse of “vulnerable” employees, especially farm workers, the EEOC announced yesterday that it settled a case against a vineyard in Ukiah, California on behalf of farm workers.

The suit alleged national origin harassment against Mexican-born winery workers, who were called "wetbacks" and "beaners" by a supervisor, who also told them to go back to Mexico when they complained about the harassment.

Underscoring the EEOC’s use of the word “vulnerable” to describe the type of employees that it was moving to protect, one plaintiff was quoted as saying that "Until this case, we didn't realize we had rights, or that there are laws to stop that kind of treatment."

In our earlier blog we said that “it goes without saying that all employers in the United States must have a written 'zero tolerance' policy regarding sexual harassment distributed to all employees and managers and enforced by the employer, as well as appropriate periodic sexual harassment training of both employees and managers.”

Apropos to that advice, note that the settlement entered into by the Ukiah winery provides that it must pay $75,000, and also must conduct training for all employees against national origin harassment, as well as provide copies of its anti-harassment training in both English and Spanish to the employees.
 

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Employers are generally knowledgeable about Title VII’s prohibition against employment discrimination on the basis of race, sex, national origin, etc. But is Title VII the only remedy for an employee who believes that (s)he has such a claim of employment discrimination?

Long before the enactment of Title VII, in fact 150 years ago, a statute commonly referred to as “Section 1983” was passed after the Civil War to protect the rights of people who are deprived of their Constitutional or other federal law rights by persons who act “under color of state law.” Persons who act “under color of state law” can include virtually any public entity, official, employee, or other person acting on their behalf who act in their official capacity. Therefore, while section 1983 can be used by a person who claims that a police officer used excessive force, or by a person who claims that he was deprived of a property right by a municipality without due process, it also applies to public sector employees who allege claims of employment discrimination.

Note that the Supreme Court has held that section 1983 does not establish any substantive rights but is merely a vehicle for vindicating rights found in the Constitution or federal law.

Can such a public employee sue on a claim of employment discrimination under both Title VII and section 1983?

One recent case dealt with a public employee alleging gender discrimination and sexual harassment who did not meet the pre-filing procedural requirements of Title VII, but sued also under section 1983. The trial court dismissed not only the Title VII claim, but also the section 1983 constitutional claim (a claim based upon the same facts but asserting that her 14th Amendment due process right to continued employment was violated). The court held that Title VII is the “exclusive remedy” for such claims, and that the employee could not circumvent Title VII’s procedural requirements by pleading constitutional violations under section 1983.

An appeals court reversed this decision, holding that “when the employer's conduct violates not only rights created by Title VII, but also rights conferred by an independent source [in this case the 14th Amendment], Title VII supplements, rather than supplants, existing remedies for employment discrimination.”

This case may be of interest only to lawyers, however public employers should be aware that employment discrimination can be pleaded in more than one way. Simply getting a Title VII claim thrown out does not necessarily win the case. 
 

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A federal judge has just approved a new entry-level firefighters test for New York City, which has the largest firefighting force in the country.  

The new test, known as Exam 2000, was developed after a federal judge in 2009 found a disparate impact relating to the existing exam. The judge appointed a Special Master to oversee the creation of the new exam, which the City now claims will not result in a “practical adverse impact" on minority applicants.
 

The last time we spoke about “disparate impact” discrimination (although we have done so a lot) was on September 21st, when we added another municipal fire department to the list of those whose examinations for firefighter positions were either challenged as having a discriminatory “disparate impact,” or who settled such lawsuits  

Now add New York City.
 

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Racial slurs and nooses – these have been the subjects of more than one of our recent blogs. Now the EEOC reports an upping of the ante – a late-night threat of death against an employee if he made any more racial harassment complaints against co-workers.
 

The EEOC just announced that it sued MMR Constructors, Inc. in Arkansas, claiming hostile work environment under Title VII because an employee was subjected to racially offensive language, graffiti and death threats by other employees.
 

Once again an EEOC attorney was forced to make a strong statement about race discrimination:

"Racial harassment too often continues to occur in today's workplaces while employers intentionally look the other way. A case where the victim received death threats at his home, as we found here, is especially abhorrent and unacceptable. The EEOC will continue to fight against this illegal and uncivilized misconduct."
 

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On May 21st we wrote that the EEOC was serious about enforcing Title VII pregnancy discrimination number as indicated by the rapid rise of such lawsuits -- in fiscal 2011, there was an increase of 23% in the number of EEOC charges alleging pregnancy discrimination.

An EEOC local regional director noted then that “Having a new child should be a joyous event, not one that leads to unemployment,” and we warned employers that they would be well advised to listen to the EEOC warnings – and ours too!

Christina Wilkie of The Huffington Post has also observed this.  We mentioned last week that the EEOC had launched four new pregnancy discrimination suits, which the HuffPost commented “likely represent early steps in the EEOC's plan to tackle pregnancy discrimination and employer accommodation of pregnant employees over the coming year, a subject it labels ‘an emerging issue.’"

HuffPost quotes the VP and general counsel of the National Women's Law Center as saying that "I'm very heartened to see the EEOC step up on this."

We have cautioned employers for a long time about this, but the sorry state of affairs continues. 

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The EEOC just sued two companies alleging pregnancy discrimination -- clearly signalling that this type of discrimination is on their radar.

Muskegon River Youth Home in Michigan had policies in place which required a woman to immediately notify the company once she learned that she was pregnant, and required her to produce a certification from her doctor that she is capable of continuing to work.  We noted yesterday that policies are great and desirable -- but that they cannot be discriminatory! 

J's Seafood Restaurant of Panama City, Florida discharged two servers after it learned of their pregnancies, telling them that their pregnancies caused them to be a liability to the company.

An EEOC attorney stated that "The EEOC is committed to holding employers accountable when they fire employees, or subject them to other unlawful treatment, because of their sex or pregnancy. This lawsuit, we trust, will deter other employers from engaging in this same type of conduct."

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It is extraordinary that the “N-word” and the noose keep reappearing in lawsuits claiming a racially harassing workplace, as we have shown in our recent blogs.

I will mention just one more case just filed by the EEOC in this regard.  It has been alleged that a Reno company, Wedco, Inc., violated Title VII by subjecting a black employee to a visible noose hanging since he began working in 2007, and permitting two white employees to continually ridicule and make derogatory comments to him due to his race, often referring to him as a "n---r." 

These racist comments and the noose are offensive.  But it is also frustrating, at a minimum, that employers permit this type of behavior or are oblivious to it.    
 

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Add Corpus Christie, Texas to the list.

“Disparate impact” discrimination is a subject in the news lately, and we spoke about it in our August 28th  and May 14th blogs. An example of “disparate impact” discrimination under Title VII was set out in a case filed by the EEOC against the City of Jacksonville, which alleged that the City put in place written examinations for the promotion of firefighters which have a disproportionately adverse impact on black test takers; that is, they have a “disparate impact” on African-American candidates, and are not job-related or consistent with business necessity.

The U.S. Department of Justice now reports that it has settled a similar case, this time with the city of Corpus Christi, Texas. It was alleged that the city police department discriminated against female job applicants by requiring them to complete and pass a demanding and extensive physical test which included pushups, situps, a 300-meter run and a 1.5-mile run.

There was nothing discriminatory about the test on its face but the results. The statistics showed that from 2005 to 2009, there was a statistically significant difference in pass rates between male and female applicants --19% for females and 63% for males.

In 2011 the city changed the cut-off score, but the results were the same -- now 33% pass rate for females, 82% pass rate for males, also statistically significant. In both cases women passed at a rate less than 80% the rate of men.

A proposed consent decree would require the city to scrap the physical abilities test and to develop a new selection procedure that is compliant with Title VII, as well as require the city to pay $700,000 as back pay to eligible female applicants who failed the challenged physical abilities test between 2005 and 2011.

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We have lit up the blogosphere lately with our entries about accommodating employees under Title VII who are required to wear religious dress or adornments, and with our litany of employers who have been found to be transgressors. Title VII prohibits employment discrimination based upon, among other things, religion, but is silent about religious dress, tattoos, and hairstyles, leaving it to courts, and state law, to resolve any issues which may arise.

California is about to enact a law which is intended to clear up any doubt about whether wearing religious dress to work is a protected activity – it specifically provides that religious clothing and hairstyles qualify as a religious belief or observance, and also provides that segregating an employee from customers or the public is not a reasonable accommodation of an employee's religious beliefs.

The “Workplace Religious Freedom Act of 2012” is now on Governor Brown’s desk for signature.

The prefatory "digest" to the law sets out pretty clearly what the law will do:

“This bill would include a religious dress practice or a religious grooming practice as a belief or observance covered by the protections against religious discrimination, and would specify that an accommodation of an individual’s religious dress practice or religious grooming practice that would require that person to be segregated from the public or other employees is not a reasonable accommodation. This bill would further provide that no accommodation is required if an accommodation would result in the violation of specified laws protecting civil rights.”

The body of the law itself states that: (1) “religious dress practice” “shall be construed broadly to include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of the observance by an individual of his or her religious creed; and (2) “religious grooming practice” “shall be construed broadly to include all forms of head, facial, and body hair that are part of the observance by an individual of his or her religious creed.”

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May we remind readers of our blog of August 14th wherein we talked about a lawsuit just filed by a Muslim hotel restaurant hostess at Disneyland claiming to have been fired by Walt Disney Co. after she refused to take off her headscarf, which allegedly “violated Disney’s ‘look’ policy.”   We recalled a similar “look policy” which Abercrombie & Fitch promulgated to insure a unified "preppy" brand image but which resulted in an adverse jury verdict in favor of a job applicant who was denied hiring when she appeared for an interview wearing a headscarf.

We asked our readers rhetorically – yet again -- irrespective of the veracity or merits of this new lawsuit:  When will employers and/or their trusted HR people and advisors learn the law?

Now it comes to light that another Title VII suit has just been filed by the EEOC in a Texas federal court against a Burger King franchise operator on behalf of a female cashier who claims to have been fired for wearing a skirt to work as required by her Pentecostal Christian religion. The EEOC alleges that the employer failed to accommodate the woman’s religious beliefs when she refused to wear uniform pants required by the franchise operator.

We have written much about accommodating employees who are required by their religion to wear certain clothes or other adornments as long as this does not cause an undue hardship to the employer. See our blog on August 8th dealing with the case of a Muslim employee who was required to wear a headscarf, which we entitled “When Will Employers Learn The Law Regarding Religious Dress?”

When will employers and/or their trusted HR people and advisors learn the law?

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Cases involving the same or similar fact situations keep coming, leading one to believe that employers have no clue as to the law, and/or that they have no HR directors or counsel.

For example, we wrote a few times recently that although Title VII does not prohibit dress or grooming rules per se, such rules may still violate Title VII if they have a disparate impact on, for example, employees who have religious beliefs which require a certain dress or hair style. As with most situations involving religious beliefs, an employee must be accommodated as long as this does not cause an undue hardship to the employer.

We cited a few cases to remind us that just because employers have a policy that appears neutral on its face by, for example, prohibiting all employee from wearing or displaying things like tattoos, piercings, long hair, or head scarves, the policy may still run afoul of Title VII’s prohibition against policies which have a “disparate impact” on employees with certain religious beliefs or practices. One such case involved Abercrombie & Fitch, where an Oklahoma jury awarded $20,000 in damages to a job applicant who was denied hiring when she appeared for an interview wearing a headscarf, which she wore for religious reasons as a devout Muslim. The employer unsuccessfully argued that it had a strict "Look" policy in order to insure a unified "preppy" brand image.
 

Despite what would appear to be settled law, the EEOC announced yesterday that it had entered into a consent decree with an assisted living center, Morningside House of Ellicott City, Maryland, which failed to hire to a Muslim woman as a certified nursing assistant because she refused to remove her headscarf, which she contended was a religious obligation. The employer, apparently seeking to make out a case of “undue hardship,” made a weak claim that the headscarf could interfere with the woman’s ability to work her position, although the woman argued that she had worn the headscarf during her nursing training, which included working in the operating room, and that it had never interfered with her ability to perform her duties.
 

The woman was given $25,000, and the employer has now been ordered to refrain from further discrimination against anyone on the basis of religion; ordered to provide religious discrimination training to supervisors, managers and all involved in the hiring process; ordered to post a notice stating its commitment to maintaining an environment free of religious discrimination; and ordered to submit copies of any complaints about religious discrimination to the EEOC for a period of two years.
 

An EEOC attorney commented: “In this case, there was no undue hardship to the employer -- just an apparent overreaction to a reasonable request because of myths and stereotypes about a religion.”
 

When will employers and/or their trusted HR people and advisors learn the law?

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It is difficult to believe that these days a multi-state company either has no relevant polices or employee handbook, or conducts so little training that it’s managers are permitted to ask a job applicant in-depth questions about his religious beliefs and affiliations, and then refuse to hire him when they do not agree with or like his responses. 

The EEOC unsurprisingly jumped on this one, apparently because the managers of Voss Electric Company allegedly so egregiously violated Title VII. Amazingly an EEOC trial attorney claimed that “Voss Lighting appears to have a corporate culture that requires employees adhere to certain religious beliefs that have absolutely no bearing on the business of selling lighting  products.”  

The EEOC sued Voss Electric Company (also known as Voss Lighting), a leading supplier of specialized replacement lighting products with offices in 16 US cities. According to the complaint, Voss Lighting advertised a vacancy for an “operations supervisor,” a  position which involved no religious duties or responsibilities. Edward Wolfe applied and was considered qualified for the position. 

However, two managers asked him repeatedly about his religious activities and beliefs; to identify every church he had attended over several years; where and when he was “saved” and the circumstances that led up to it; and whether he “would have a problem” coming into work early to attend Bible study.  At the second interview, the branch manager became upset over Wolfe’s responses and he was refused employment.  

As expected, the EEOC is seeking not only back pay, compensa­tory and punitive damages and reinstatement or front pay for Wolfe, but also a court order prohibiting Voss Lighting from any further such religious discrimination against applicants.  

Please don’t be a Voss. Know the law and have your managers and employees act accordingly.

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We recently wrote that Title VII does not prohibit dress or grooming rules per se, but that such rules may run afoul of Title VII if they have a disparate impact on, for example, employees who have religious beliefs which require a certain dress or hair style.

With regard to hair styling in particular, we quoted a Missouri Department of Labor spokeswoman:
"An employer may condition a job on an employee's compliance with the employer's hair styling preferences, unless the employee's alternative hair styling preference is connected with the employee's inclusion in a protected category. For example, a particular hair style may be a tenet of the employee's religion, or the employer may decline to hire a prospective employee because the employee is considered to be disabled because of his or her hair style (such as believing someone without hair to be suffering from cancer)."

We just found a very comprehensive article on workplace dress codes, and whether they may impact not only the religious beliefs of employees, but also have a disparate gender impact.

The Business Management Daily of June 4, 2012 prefaces its article by noting that “Female employees who are accused of wearing clothing that is too revealing may complain of sexism. Male employees prohibited from wearing shorts, for example, may argue that a double standard exists because females are permitted to wear skirts. But don’t let employees’ complaints prevent you from upholding your company’s appearance standards. Employers have the right to define appropriate attire in their workplaces.”

The article then goes on to describe what is appropriate workplace dress, and what is appropriate workplace dress codes, and poses a set of questions and challenges you to “Test your casual dress code policy against these questions to see if you are on safe ground.”

Read it!
 

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There have been a couple of major legal matters just reported that relate to dress, tattoos or grooming habits in the workplace and the impact of Title VII.   On May 15th we wrote a long blog about whether workplace prohibitions relating to dress, tattoos or grooming habits violate Title VII. See also our blog of 7/29/11.

Although Title VII does not per se prohibit dress or grooming rules or employer acts based upon them, nevertheless these rules may be violative of Title VII’s prohibition of employment discrimination based upon religion.  Accommodation must be made if the dress or grooming rule or policy impacts employees who are members of a protected group, such as religion, and we cited a few recent case examples.

New York -- It was announced yesterday that the NYC Transit Authority has settled a lawsuit brought by the US Department of Justice on behalf of Sikhs and Muslims regarding head coverings worn by transit workers.  See report of Jessica Dye of Reuters. 

California -- The California Assembly overwhelmingly passed a bill – A.B. 1964 (known as the “Workplace Religious Freedom Act of 2012”) which would provide that the state’s version of Title VII applies to religious clothing and hairstyles.

The New York lawsuit merits some discussion. It had long been the policy – but only enforced after 9/11 -- that all head coverings (i.e., headscarves, turbans and other religious headwear) had to bear a Transit Authority logo, or else the employee would be forced to work where the public could not see them. Now, the transit employees will be permitted to wear these head coverings - but only if they are in the same blue color as their transit uniforms.   Significantly, the California bill discussed in this blog, pushed by Sikh groups, was passed to prohibit the similar practice of employers who forced employees wearing religious clothing or headwear “to the back of the store” where they could not be seen.

Chris Dolmetsch of Bloomberg, reported that the Transit Authority also agreed not to “selectively enforce uniform policies or take adverse employment actions” against such employees, and also agreed to accommodate workers who can’t comply with uniform policies and work to eliminate policies and practices that discriminate on the basis of religion, according to the court filing.  It also agreed not to retaliate against employees or prospective workers who have complained that it has engaged in such discrimination, and to require mandatory training regarding religious discrimination, according to the court document.

A Justice Department attorney stated that he was “"pleased that the NYCTA has agreed to end its discriminatory practices that for years have forced employees to choose between practicing their religion and maintaining jobs."
 

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A federal appeals court has just ruled in a case arising out of Indiana that “alienage” is not the same thing as “national origin” or "race" when it comes to employment discrimination under Title VII. Title VII prohibits discrimination on the basis of race, color, religion, sex, or national origin, but it is silent as to “alienage” – the status of being an alien. In this new decision, the court held that being fired for being married to an illegal alien does not violate Title VII since “alien” is not the same thing as race or national origin.

In this case, plaintiff, who was employed by a bank, was married to a Mexican national who entered the United States illegally. The couple had a joint bank account at the employer-bank, and the employer discovered that the husband was an illegal alien and became concerned that it may have been illegal for plaintiff to have a joint account with a known undocumented alien. Plaintiff was eventually fired for walking out of a meeting to discuss this matter, and sued the bank under Title VII claiming that she was fired because she was married to a Mexican citizen whose residence in the United States was unauthorized. 

Initially, the court conceded that it had never before decided (and would wait for the appropriate case) “whether discrimination based on the race or national origin of a person’s spouse or partner falls within the protections of Title VII,” but noted that other federal appeals courts (in New York, for example) had decided that Title VII did, in fact, apply in those cases. Nonetheless, the court stated that this issue was immaterial to the decision.

What the court did hold was that “any discrimination that led to [plaintiff’s] firing was not based on [her husband’s] race or national origin, but rather on his status as an alien who lacked permission to be in the country.  Because alienage is not a protected classification under Title VII,” the court ruled that plaintiff did not have a Title VII case. 

The court cited an old Supreme Court case which held that the term “national origin” was limited to “the country from which you or your forebears came.”  Therefore, held the appeals court, “national origin discrimination as defined in Title VII encompasses discrimination based on one’s ancestry, but not discrimination based on citizenship or immigration status.”

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In our February 16th blog, we reported that a Texas federal judge recently stated, in denying the Title VII claim of a woman who alleged that she was fired for seeking to pump breast milk while on the job, that "Lactation is not pregnancy, childbirth, or a related medical condition."   We suggested in our February 9th blog, that an appeal and reversal was likely, and that “this decision was headed for the dustbin of history.”  See Judy Greenwald’s well-written article in Business Insurance, 2/10/12.

Just yesterday, the EEOC indeed filed an appeal to the federal court of appeals seeking a reversal of this decision, arguing that the Pregnancy Discrimination Act and Title VII protect women from being fired for lactation and breast pumping.

The EEOC argued, first, that the lower court’s interpretation of the Pregnancy Discrimination Act was too restricted and narrow.  Second, the EEOC claimed that, in any event, discrimination based on lactation violates Title VII’s prohibition against sex discrimination because lactation is a normal bodily function that is unique to women, i.e., that it is discrimination based on a sex-specific trait. 

We are one for one on this case so far -- an appeal was filed.  Let's see what happens and if we were right about a reversal.  I am doubling down on this bet.

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Lynn Nakagawa has reported in Pacific Business News that a state appellate court in Hawaii has just reversed a lower court dismissal of a national origin discrimination and retaliation suit by a French national, who alleged that he was terminated from his job after he was called anti-French names, such as Frenchy,” by his managers.

The employee claimed that one of his supervisors often told him to go back to France because “America does not need French people,” and that another supervisor often referred to him as “French fries.”

The EEOC had originally issued a determination that the employee was harassed because of his national origin, but no determination that he was wrongfully terminated, but the lower court found no evidence of discrimination based upon the employee’s national origin, or that “Frenchy” was anything more than a nickname and not an ethnic slur.

Of note was that the lower court directed that the employee pay more than $158,000 in attorney’s fees and costs to the employer.  It is not clear from the published accounts of the case whether the award of legal fees was under Title VII (which, to a prevailing employer would have been rare indeed), or under a state statute in Hawaii.

"Those involved in the case say the reversal is important because it emphasizes that slurs based on ethnicity or nationality are illegal under civil rights law," noted Nakagawa.

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In a number of recent blogs, we reported the number of cases of pregnancy discrimination is rising rapidly -- in fiscal 2011, there was an increase of 23% in the number of EEOC charges alleging pregnancy discrimination.

On February 17th we wrote that with women making up almost one half of the workforce, experts have urged the EEOC to be more proactive in directing employers to accommodate women “who require adjustments to work rules as a result of pregnancy or childbirth.” An EEOC attorney cautioned employers that: “refusing to hire a woman because she is pregnant violates federal law, and the EEOC will enforce that law.”

We also reported on March 9th about a federal court which just awarded a pregnant woman substantial damages after finding that her employer made offensive comments about her pregnancy and then terminated her for taking maternity leave. Our warning -- the EEOC is serious about pregnancy discrimination!  

The US Justice Department’s Civil Rights Division similarly just announced that “the continued enforcement of Title VII is a priority,” and just sued the Nevada Division of Forestry alleging that it fired an employee just after she announced her pregnancy. The complaint alleges that her pregnancy was discussed by Division managers as a reason for her termination. Even aside from this damning allegation, which, if true, seems to be a thoughtless act, the Division did a number of things which were not in keeping with our “best practices” rules.

First, although the employee was apparently a successful work performer who had no prior complaints about her work, the Division began documenting work related problems only when she announced her pregnancy. What a great way to demonstrate to a court an employer’s discriminatory bias – create a record only after she says that she is pregnant! If the employee in fact had work related problems, these problems probably existed well before the announcement of her pregnancy, and the Division should have heeded our oft-repeated warnings -- keep good and accurate records, and document, document, and document some more.

Moreover, the Division, although it in fact had written policies regarding terminations, nonetheless did not follow them. We have cautioned before – maintain and update employment practices and policies, and distribute them to employees. And for goodness sakes, follow them!

The local EEOC regional director noted that “Having a new child should be a joyous event, not one that leads to unemployment.” Employers would be well advised to listen to the EEOC’s and the Justice Departments warnings – and ours too!
 

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Its been almost a year since my partner Christina Stoneburner wrote about whether workplace prohibitions relating to dress, tattoos or grooming habits violate Title VII. See blog of 7/29/11.  Title VII does not prohibit dress or grooming rules or employer acts based upon them, and Michigan is the only state with such laws.  However, a religious accommodation must be made if the dress or grooming rule or policy impacts employees who are members of a protected group. In that case, as with most situations involving religious beliefs, an employee must be accommodated as long as this does not cause an undue hardship to the employer.

These rules can get complex, and it is recommended that counsel be consulted before an employer makes a blanket refusal of an employee's accommodation request.

A few recent cases serve to remind us that just because employers have a policy that appears neutral on its face by, for example, prohibiting all employee from wearing or displaying things like tattoos, piercings, long hair, or head scarves, the policy may still run afoul of Title VII’s prohibition against policies which have a “disparate impact” on employees with certain religious beliefs or practices. See yesterday’s blog for our discussion of “disparate impact.” A few recent cases are illustrative. 

Last year we reported a case filed by the EEOC against Abercrombie & Fitch where an Oklahoma jury awarded $20,000 in damages to an applicant for a job after the employer refused to hire her when she appeared for an interview wearing a headscarf, which she wore for religious reasons as a devout Muslim. The employer argued that it had a strict "Look" policy in order to insure a unified "preppy" brand image.

We also noted a Title VII filing by the EEOC against a Taco Bell franchise owner (EEOC v. Family Foods, Inc.) alleging that its termination of a devout Nazirite due to his failure to cut his hair was religious discrimination. Nazirites do not cut their hair as a sign of devotion to God. The employee had worked for Family Foods for six years without cutting his hair (in fact, he had not cut his hair since he was 15 years old) before the company tried to enforce its grooming policy that required him to cut his hair.  Occupational Health & Safety now reports that Family Foods has just entered into a consent decree whereby it settled the case and agreed to pay the employee $27,000, and also to adopt a formal religious accommodation policy, to do appropriate annual trainings on Title VII, and also to post a copy of its anti-discrimination policy at all of its facilities.

These cases indeed had a religious component, and an EEOC attorney commented that “No person should be forced to choose between his religion and his job when the company can provide an accommodation without suffering an undue hardship.”

Without some evidence that there are religious overtones regarding a dress or grooming policy, the results may be different.   A recent story by Steve Giegerich of The St. Louis Post-Dispatch reports on an employee with dreadlocks who had been working at a convenience store and gas station for four months who was barred from work because his hair violated the employer's written policy which states that hair must be "kept neat and clean...immoderate styles... such as corn rows, braids etc. must be approved by a supervisor ... dreadlocks and mohawks are unacceptable."

As Giegerich accurately reported, “policies on the personal grooming habits of employees land on the edge of state and federal employment discrimination laws,” and in all states but Michigan, employers have the right to terminate or suspend any employee who fails to comply with grooming guidelines.

He quoted an EEOC attorney who, agreeing with our analysis above, stated that "The baseline for evaluating grooming policies is to look at their overall burden on different groups of employees." If the policy applies to all employees but has a disparate impact on a protected class of employees, oh say Nazirites, it may violate Title VII.

Significantly, the reported story noted no sincerely held religious beliefs of the employee regarding his wearing of dreadlocks. Absent any such evidence, it would appear that his wearing of dreadlocks could be prohibited by the employer.

A Missouri Department of Labor spokeswoman quoted by Giegerich summed up this area of the law fairly well:

"An employer may condition a job on an employee's compliance with the employer's hair styling preferences, unless the employee's alternative hair styling preference is connected with the employee's inclusion in a protected category. For example, a particular hair style may be a tenet of the employee's religion, or the employer may decline to hire a prospective employee because the employee is considered to be disabled because of his or her hair style (such as believing someone without hair to be suffering from cancer)."

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We have noted before that discrimination comes in two sizes – intentional discriminatory treatment, and “disparate impact” discrimination. While intentional discriminatory treatment probably needs little explanation or examples at this point since it is the basis of almost all employment discrimination claims (and, in any event, is the subject of most of our blog reports), some folks ask the question, exactly what is “disparate impact” discrimination?

A good example of “disparate impact” discrimination can be found in two companion lawsuits just filed in Florida by the EEOC against the City of Jacksonville, and the Jacksonville Firefighters Local 122 of the International Association of Fire Fighters. The EEOC contends in the first case that the City put in place written examinations for the promotion of firefighters to four ranks which have a disproportionately adverse impact on black test takers; that is, they have a “disparate impact” on African-American candidates, and are not job-related or consistent with business necessity.

In the second case, the EEOC claims that the firefighters union knowingly negotiated this racially discriminatory promotional process with the City, thereby perpetuating a discriminatory process through collective bargaining.

Along with the City, the union is covered by Title VII, and the EEOC’s regional attorney in Miami stated that “We hope this lawsuit sends a clear message: Unions have a responsibility to oppose, not acquiesce in, racially discriminatory employment practices.”

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CNN has just reported that a Houston Chronicle reporter has filed a charge of gender discrimination with the EEOC alleging that she was fired because someone tipped off the paper that she was a part-time stripper. Her attorney, the well-known attorney Gloria Allred, said that this was gender discrimination because “Most exotic dancers are female, and therefore to terminate an employee because they had previously been an exotic dancer would have an adverse impact on women, since it is a female-dominated occupation."

Policies and practices that are on their face non-discriminatory may nevertheless violate Title VII because they have a “disparate impact” on members of a protected class.

The newspaper denies that she was fired for this reason, but in any event, was this adverse employment action based upon gender? Any thoughts?

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A federal appeals court has ruled in a Title VII race case arising out of Arkansas that reassigning an employee to a position that a reasonable employee would find “demeaning and intolerable” may be grounds for a claim for constructive discharge.

In Sanders v. Lee County School District No. 1, plaintiff claimed that because of her race she was reassigned by her employer School District from the job of “finance coordinator” to “food services assistant.” She asked the School District repeatedly to give her a job description for “food services assistant,” which would set forth her new duties, but this was never provided to her. She resigned and sued.

The Court stated that in a claim for constructive discharge, a plaintiff must demonstrate by an objective standard that the employer “deliberately created intolerable working conditions with the intention of forcing her to quit,” and that simply offering the employee a different job is not necessarily a good defense. In this case, the Court held that plaintiff had shown enough that a “reasonable jury” could find that her particular reassignment was a demotion in title and responsibilities.

Employers be advised:  It doesn’t take too much for an employee to claim a constructive discharge.
 

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We have written frequently about various states and municipalities outlawing discrimination in employment against transgendered individuals. (On November 18, 2011 we noted that Massachusetts became the 16th state to outlaw such discrimination, and  as recently as April 1st we wrote about a debate in Anchorage about this issue),  

Now the EEOC has held, for the first time, that under Title VII discrimination against a transgendered individual is a form of sex discrimination. Transgendered individuals can now file charges of such discrimination with the EEOC. 

See the excellent ediscussion of Macy v. Holder, EEOC case number 0210210821, by Professor Arthur Leonard of New York Law School. 

In this case Mia Macy, a transgender woman, who was a detective told that she would be hired by the federal ATF agency pending a background check, was not, in fact, hired after she disclosed her transgendered status. Although the EEOC did not pass upon the merits of Macy’s case, it nonetheless ruled that under the famous Supreme Court case of Price Waterhouse v. Hopkins where the Court held that sex discrimination under Title VII related to gender, as well as biological sex, “gender discrimination” included discrimination against transgender people.

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It should come as no surprise to those who even skim our blogs that the number of cases of pregnancy discrimination is rising rapidly.   The Washinton Post Capital Business edition of 4/8 confirms this: in fiscal 2011, there was an increase of 23% in the number of EEOC charges alleging pregnancy discrimination.   

On February 17th we wrote that with women making up almost one half of the workforce, experts have urged the EEOC to be more proactive in directing employers to accommodate women “who require adjustments to work rules as a result of pregnancy or childbirth.”  An EEOC attorney cautioned employers that:  “refusing to hire a woman because she is pregnant violates federal law, and the EEOC will enforce that law.”

The EEOC general counsel stated during a recent hearing that “At the core, all of these cases involve employers who held stereotypical assumptions about pregnant women.” 

We will keep warning employers -- this is not a minor or passing situation.  The EEOC is very serious about prosecuting these cases, and plaintiffs' attormeys will be followng suit.

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That’s right, readers – a court has actually held that an applicant for employment does not have a viable claim for disability discrimination under the ADA if the prospective employer fails to hire him because of his prior conviction for possession with intent to sell heroin and cocaine. Shocking, huh?   

We are being a little facetious, of course, since this federal appeals court decision is self-evident. However, we think that its is blogworthy nonetheless to illustrate a few points. 

First point – anyone can file a lawsuit and sue anyone about anything no matter how frivolous, especially a pro se litigant, which is someone (such as the plaintiff here) who files a lawsuit by himself without an attorney.  So don’t be alarmed if you too find yourself someday at the wrong end of a summons – the case may very well lack any merit whatsoever and be dismissed quickly.

Second point – with a pro se litigant, a court is likely to bend over backwards to make sure that his rights are protected. The court in this case did this by reviewing all possible claims that could be read into the plaintiff’s inartful complaint. The court reviewed the elements of an ADA claim, and found that the plaintiff did not allege that he had the required physical or mental impairment necessary to demonstrate a disability.  

The court next reviewed claims under Title VII, which plaintiff raised for the first time on appeal – he claimed that defendant’s alleged failure to hire him because of his criminal conviction was discrimination not only under the ADA but also under Title VII.   The court correctly ruled that “we do not consider claims presented for the first time on appeal.” However, in true “bending over backwards” fashion, the court still considered plaintiff’s allegations under the standards of Title VII. 

The court stated (again correctly) that Title VII indeed prohibits any employment practice that causes a “disparate impact” on members of a protected class, and noted that it had previously held that an employer who refuses to hire because of a prior criminal conviction may run afoul of Title VII if the employer’s policy has a disparate impact on a protected class. However, the court found that plaintiff in this case did not allege that he was, in fact, a member of a protected class.  Case dismissed.

Last point – just as anyone can file a lawsuit, no matter how frivolous, it is also true that a court can, at least in the initial stage of a lawsuit, read some potential legal claim into the allegations in the complaint that will permit a plaintiff to go forward with the case. So don’t ignore a summons, and make sure that it is dealt with professionally.    

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On March 14, 2011, the United States District Court for the Eastern District of Pennsylvania answered a lingering question regarding the proof required to prove a retaliation claim under Title VII.   The question was left open as to how expansively the U.S. Supreme Court's 2009 decision in Gross v. FBL Fin. Servs. Inc. , which held that there was no such thing as a "mixed-motive" case under the Age Discrimination in Employment Act, would be applied to other statutes.  In a "mixed-motive" case the plaintiff's burden of proof is lowered.  A plaintiff may be entitled to a "mixed-motive" instruction where there is evidence that both a legitimate and a discriminatory motive was behind the employment decision.  Where there is such evidence, in order to prove discrimination, the plaintiff need only prove that the discriminatory reason was a "motivating factor" in the employment decision, not the sole or "but for" cause of the employment decision.

In Zhang v. Children's Hosp. of Philadelphia, Magistrate Judge L. Felipe Restrepo held that only the “but-for” standard applied to Zhang's retaliation claims and that, as a matter of law, the lesser "motivating factor" standard would never apply to a Title VII retaliation claims in light of the language of the statute and the Supreme Court Justices' reasoning in Gross. 

It is certainly possible (and likely) that this decision will be appealed since it addresses an issue of first impression in the wake of Gross.  In the meantime, the decision is a significant win for employers in the Third Circuit as it makes it more difficult for employees to prove retaliation claims.  This is good news especially since the EEOC has again reported an increase in retaliation claims -- with 33,613 charges filed in 2009 and 36, 258 in 2010, representing 36.3% of all charges filed with the EEOC.

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No matter where you look in the language of Title VII, or in any state or local anti-discrimination laws (that we know of), there is no protected class known as “the unemployed.”  Therefore, if you are not hired because of your unemployment status, you have no actionable claim of discrimination. Seems simple and case closed!

Not so fast!

As we noted in an earlier post (February 9, 2011), there is a concept known as “disparate impact.” This means that the use of a test or screening device, although neutral and non-discriminatory on its face, may nevertheless impact disproportionately certain protected classes, and therefore violate the law. In the case of unemployment, an ad or policy that excludes the unemployed from applying, while seeming to apply equally to all genders, races, religions, ages and other protected classes, may nonetheless have a disparate impact upon African Americans, Latinos, and older applicants – each of which class of protected applicants has a higher statistical unemployment rate.

For example, African Americans have been reported to be unemployed at a rate of almost double that of whites, while Latinos have been reported to be unemployed at a rate of almost 50% more than whites. Moreover, more than half of the long-term unemployed are over 40 years of age. Clearly, a policy that excludes the unemployed from applying has a statistically good chance of disparately impacting these groups.

The EEOC has recently taken note of sporadic (and perhaps merely anecdotal) reports of ads or policies which exclude the unemployed from applying. Admittedly these are not common, but nevertheless the purported practice has crossed the EEOC’s radar.  

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Title VII provides that a prevailing party in a litigation commenced under that statute is entitled to reasonable attorneys fees.  This has almost uniformly been applied to prevailing plaintiffs.  However, courts have awarded reasonable attorneys fees to a prevailing defendant where the plaintiff's claim is deemed frivolous.

There has emerged a split in the federal courts around the country over whether a prevailing defendant is entitled to attorneys fees -- and how much -- if the plaintiff has asserted multiple claims, and only one has been deemed frivolous.  Most federal courts of appeal have ruled that where there are mixed frivolous and non-frivolous claims the prevailing defendant can recover attorneys fees.  Only one court has held that a prevailing defendant is not entitled to attorneys fees if the plaintiff has asserted even a single non-frivolous claim.  

Similarly, there is a split in the federal courts over the amount of attorneys fees which can be awarded to a a prevailing defendant where there are mixed frivolous and non-frivolous claims.  The latest decision, arising out of the appeals court in California, holds that the defendant may be awarded fees only for legal services related exclusively to the frivolous claim.  Moreover, the court ruled that there should not be an equal pro rata allocation for fee purposes with regard to all the claims asserted by the plaintiff, but that the defendant bears the burden of showing that the fees it seeks relate only to the work done to defend against the frivolous claim.  There was a vigorous dissent.

Got that?

Not easy to figure out, but given the split in the courts, and the fact that attorneys fees in employment discrimination cases is of paramount importance to parties and practitioners, this is a subject that may see Supreme Review some time very soon.   

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Yesterday, in a long-awaited and important decision, the United States Supreme Court unanimously held that the anti-retaliation provision of Title VII protects employees from termination where that employee was the fiancé of another employee who exercised her rights under the statute to file a discrimination complaint.

In Thompson v. North Am. Stainless, LP, a female employee filed a gender discrimination charge with the EEOC, and a few weeks later, her fiancé, and co-employee, Eric Thompson, was fired by their mutual employer. Although Thompson had not filed the original EEOC charge nor made any claim of discrimination, and, therefore, under traditional principles possessed no Title VII claim himself, he nonetheless filed a claim for retaliation, contending that he was fired simply because of his association with the charging employee – his fiancé.

The lower appeals court had previously ruled that the Title VII anti-retaliation provision did not apply to Thompson since he did not file a discrimination claim. The Supreme Court, however, ruled that this anti-retaliation provision must be read broadly, and not be given a literal interpretation, which would defeat the purpose of Title VII. Justice Scalia stated that Thompson’s claims were within the “zone of interest” that are protected by the provisions of Title VII, and that a “reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.” Justice Scalia further stated that “[h]urting him was the unlawful act by which the employer punished her.”

Significantly, the Court did not create a “bright line” to determine what type of association or relationship the terminated employee must have with the complaining employee.

What is an Employer to Do?

“Associational discrimination” claims, such as that put forth by Thompson, do not mean that employers need to walk on eggshells around employees in order to comply with the law, or to change their (hopefully) compliant employment practices. Rather, employers (and their human resource professionals) need to re-focus on who is protected by Title VII, and who can file a charge of discrimination.

The answer, based upon this new decision, now appears to be a close or intimate family member or friend of employees who are also employees. An employee’s ability to bring a claim for associational discrimination raises the troubling question for the employer which the Court in Thompson left hazy, namely, who is an associated person for purposes of the statute? Lower appeals courts which have been faced with claims of associational discrimination have so far held that a parent and child, a husband and wife, engaged fiancés, and even two people dating are considered closely enough associated to warrant a so-called “third party claim” under Title VII.

Though we could locate no court which has gone further to hold, for example, that distant friends or casual acquaintances are associates (and the Supreme Court seemed not to be favorably disposed to such claims), this result may not be far off based on the direction in which the lower courts are moving in interpreting the civil rights statutes.

As with any employee who has filed a complaint or charge of discrimination, to ward off retaliation claims an employer is well advised to take a “business as usual” approach and act as if no complaint had been filed; treat that employee like any other employee; engage in open, non-intimidating communication with the employee to find common ground while the investigation or litigation is pending; and, of course, document all decisions and pre and post-complaint performance issues that might result in discipline.

The new twist here is the existence of an employee’s “associate” – be it close friend or family member. Because of current uncertainty in this area of the law, we suggest that employers who have actual knowledge of their employees’ “associations” should treat these “associates” as they would the charging party. For example, if an employer knows an employee is “associated” or “intimate” with a person of another race or gender, the employer must be aware that the employee may “take on” the race or gender of his associate for the purposes of claiming discrimination under Title VII. Similarly, if an employer knows that an employee who has filed a claim or complaint has a close friend or relative who is also employed by the employer, the employer should treat that associate with the same degree of care and deference (as outlined above), as it would the complaining employee.

To protect against these retaliation claims by such associates, employers may want to institute a policy requiring or encouraging all employees to disclose to the human resources department any familial or marital relationships with fellow employees. And, as always, keep thorough records of all employees’ performance issues as they occur.

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On December 7, 2010, the Supreme Court of the United States (SCOTUS) heard oral arguments in Thompson v. North American Stainless, LP, 130 S. Ct. 3542. At issue is whether employers should be held liable for claims of retaliation asserted by their employees who are close friends, colleagues or family members of an employee who has filed a complaint or claim of discrimination. The nature of the relationship, ie., the closeness of the parties and/or the parameters of the relationship that would give rise to a retaliation claim is one of the major issues to be addressed by the Court. Under plaintiff’s theory, if a known “relationship” between the complainant and another employee is established, even if the latter did not participate in the filing of a claim or the investigation of a complaint, that other employee could assert a retaliation cause of action under Title VII.

To provide some further insight into the potential impact of the pending Supreme Court decision, here is a quick factual recap. Eric L. Thompson worked as a metallurgical engineer for defendant North American Stainless, LP, in Carroll County, Kentucky from February 1997 through March 2003. In 2000, Miriam Regalado was hired by Defendant. Thompson and Regalado began dating shortly after she was hired in 2000, and in 2003, when Thompson was fired, he and Regalado were engaged to be married. The relationship was common knowledge at North American Stainless at the time of Thompson’s termination.

Regalado filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) in September 2002, alleging that her supervisors discriminated against her based on her gender. On February 13, 2003, the EEOC notified North American Stainless of Regalado’s charge. On March 7, 2003, the North American Stainless terminated Thompson’s employment citing performance based reasons. Thompson alleges that he was terminated in retaliation for his then-fiancée’s filing if her EEOC charge.

Thompson then filed his own charge with the EEOC, which conducted an investigation and found “reasonable cause to believe that [North American Stainless] violated Title VII.” After failed conciliation efforts, the EEOC issued a right-to-sue letter and Thompson filed suit against North American Stainless in the Eastern District of Kentucky. North American Stainless successfully moved for summary judgment on Thompson’s claim arguing that his “[r]elationship to [Regalado] was the sole motivating factor in his termination,” and was insufficient as a matter of law to support a cause of action under Title VII. The district court granted the defendant's motion, holding that Thompson failed to state a claim under Title VII or the anti-retaliation provision of Title VII The Sixth Circuit Court of Appeals affirmed the ruling, and the Supreme Court granted certiorari.

Defense counsel and employers are understandably concerned about the potential implications of this case, as is the Supreme Court Justices, based on their questions to the lawyers arguing the case. For example, how close or intimate must a relationship be for the “other employee” to be protected under Title VII, and what is the obligation, if any, of the employer to know or be aware of relationships in the workplace. However, in light of a more conservative leaning bench, the general consensus is that the Supreme Court will rule in favor of the employer, even if it carves out a limited exception, perhaps for married or engaged employees.

Take heart.  Even if SCOTUS recognizes a retaliation cause of action under the circumstances referenced above, it does not spell doom for employers. Instead, it signals the need for revisions of employment policies/handbooks (i.e., narrowly tailored non-fraternization policies—you should have them already) and updated training for supervisors and human resources personnel.

More to come on this important case.
 

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