A new article in Bloomberg details an unusual (to put it diplomatically) strategy that some male executives in the financial sector are using to avoid claims of sexual harassment:

No more dinners with female colleagues. Don’t sit next to them on flights. Book hotel rooms on different floors. Avoid one-on-one meetings.

In fact, as a wealth adviser put it, just hiring a woman these days is “an unknown risk.” What if she took something he said the wrong way?

Across Wall Street, men are adopting controversial strategies for the #MeToo era and, in the process, making life even harder for women.

[ . . . ]

A manager in infrastructure investing said he won’t meet with female employees in rooms without windows anymore; he also keeps his distance in elevators. A late-40-something in private equity said he has a new rule, established on the advice of his wife, an attorney: no business dinner with a woman 35 or younger.

The changes can be subtle but insidious, with a woman, say, excluded from casual after-work drinks, leaving male colleagues to bond, or having what should be a private meeting with a boss with the door left wide open.

The full article itself is well worth a read.  It details the results of Bloomberg’s anonymous interviews with over 30 financial sector leaders about how these leaders are conducting themselves in light of the #MeToo movement.  Bloomberg’s reporters, Gillian Tan and Katia Porzecanski, conclude that many of the individuals they surveyed are “spooked” about the possibility of being caught up in sexual harassment or sexual assault allegations and, as a result, are “walking on eggshells” at work.

The apparent solution that some executives are adopting, as relayed by Bloomberg, is to simply remove women from the equation, in an effort to avoid any allegations.  The results, described above, appear to lead to per se or de facto exclusion of female colleagues and subordinates from many opportunities.

At the risk of stating the obvious: this “solution” is no solution at all.  In fact, this misguided attempt to avoid liability for sexual harassment risks creating liability for sex discrimination. 

Indeed, systematically removing women from hiring and mentorship opportunities and meetings or treating female subordinates differently from male subordinates creates serious risks of sex discrimination claims under both the disparate treatment and disparate impact theories where the treatment at question rises to the level of an adverse employment action.  And if the exclusion is sufficiently severe or pervasive, it may even create sexual harassment liability under the hostile workplace theory.

In short: don’t follow the advice of these anonymous executives to reduce workplace harassment.  Instead, participate in regular anti-harassment and anti-discrimination trainings, foster a respectful and professional workplace, and don’t use sex as a basis to make decisions in the workplace.

As 2018 winds to a close, the EEOC has released a report showing the agency has been a busy bee in 2018.

As part of the EEOC’s 2018 Performance Accountability Report, the EEOC has made public a wide range of data regarding its activities for the 2018 fiscal year, which closed as of September 30th.  The agency has provided a snapshot of key statistics regarding its litigation and enforcement activities for the year:

  • The EEOC’s legal team resolved 141 lawsuits and filed an additional 199;
  • The EEOC facilitated approximately $505 million (in addition to other forms of relief) for nearly 68,000 individuals complaining of workplace discrimination; and
  • In addition to working through charges and other priorities, the EEOC filed amicus briefs on important legal issues in nearly 30 significant employment discrimination cases.

The EEOC also noted it has made progress in clearing its significant backlogs of discrimination charges, with private sector employment charges reduced by nearly 20% in the 2018 fiscal year.

Beyond its enforcement and litigation portfolio, the EEOC also announced data regarding its other initiatives.  The agency noted that its launch of a national web-based inquiry/appointment component of its public portal this past fiscal year led to a 30% increase in employee inquiries (and 40,000 intake interviews).

The EEOC’s outreach and education efforts were equally robust in fiscal year 2018, with the agency conducting over 300 Respectful Workplace training programs and with total outreach efforts reaching nearly 400,000 individuals.

We would expect the EEOC to build on its momentum from fiscal year 2018 during the 2019 fiscal year.

Earlier this year, New Jersey enacted a law to protect breastfeeding employees and require employers to provide certain accommodations to breastfeeding employees.

Notably, this law required reasonable accommodations as a general matter but also noted that reasonable accommodation “shall include reasonable break time each day to the employee and a suitable room or other location with privacy, other than a toilet stall, in close proximity to the work area for the employee to express breast milk.”  Employers are therefore required to provide reasonable accommodation generally, which must include but is not necessarily limited to this particular accommodation, unless they can demonstrate undue hardship.

On October 29, 2018, a group of New Jersey state legislators introduced a bill (A-4686) to expand the scope of required accommodations to breastfeeding employees.  The bill makes four changes to current law.

First, current law applies the accommodation obligation to an “employee breast feeding her infant child.”  A-4686 removes the word infant, clarifying that this obligation applies to breastfeeding beyond infancy.

Second, the bill notes that the reasonable break time accommodation should be “for such time as the employee desires.”

Third, the bill adds a second specific required accommodation to employers, which would be required to provide “a modified work schedule” to the employee.

Fourth, the bill clarifies that a restroom (as opposed to merely a toilet stall) is not an acceptable location for an employer to provide to an employee for the purpose of expressing breast milk.

While the proposed language changes are short, this bill represents a significant expansion of employers’ accommodation obligations.  We’ll keep an eye on this piece of legislation as it moves through the legislative session and update on any new developments.

In the meantime, New Jersey employers should review policies and practices to make sure they incorporate the requirements of the law enacted earlier this year.

It’s been a busy month for those keeping an eye on one of the most pressing questions in employment law:  whether Title VII, which prohibits sex discrimination in employment, also inherently prohibits discrimination on the basis of gender identity.

Last week, the US Department of Justice argued to the Supreme Court that workplace discrimination on the basis of gender identity is legal.  However, the Department requested the Court delay deciding whether to hear an appeal on this issue until it decides a similar question: whether Title VII prohibits discrimination on the basis of sexual orientation.

In contrast, Victoria Lipnic, Chair of the Equal Employment Opportunity Commission, has said she hopes the Supreme Court takes up a case on the issue of whether Title VII’s prohibition of sex discrimination forbids discrimination on the basis of an employee’s gender identity.  This position diverges from the position articulated by the Department of Justice:

“There’s a lot of litigation going on on this, we have lots of people who have filed charges with the EEOC that we have taken in,” Lipnic said. “I’m always in favor of clarity.”

The DOJ’s brief argued against the Sixth Circuit’s March ruling that Title VII’s bar on discrimination “because of … sex” blocks employers from firing workers based on their gender identities. The ruling revived a suit the EEOC filed for former Harris funeral director Aimee Stephens alleging the company violated the law by firing her after she started living as a woman.

The brief reversed the EEOC’s lower court stance that Title VII protects transgender workers from discrimination. Although the EEOC argues its cases at the district and circuit courts, the DOJ speaks for the agency at the Supreme Court . . .

The EEOC voted unanimously in 2012 to adopt its stance that Title VII covers gender identity. Lipnic, who voted for coverage, told Law360 that she doesn’t know whether the EEOC will revisit its interpretation of the statute if President Donald Trump’s nominees to two commission vacancies are confirmed. She had earlier said she’ll be keeping a close eye on what the high court says . . .

The DOJ’s brief urges the high court to wait on the funeral home’s petition until it decides whether to answer a related question about whether Title VII covers sexual orientation. If it opts to take up that issue, the justices should grant cert to Harris, the DOJ said. If it doesn’t, the justices should not, it said.

Meanwhile, congressional leaders speaking on behalf of over 200 members of the United States House of Representatives have strongly signaled a desire to move forward with the Equality Act in the next Congress.  The Equality Act seeks to expressly add sexual orientation and gender identity to Title VII’s protected characteristics.

Watch this space: these developments have been happening quickly, and we will continue to cover what this all means for employers as more information becomes available.

Today is Tuesday, October 30th, 2018, marking less than a full calendar week until the polls open across the country for the 2018 elections.  (This, of course, doesn’t include the many states that offer some form of early voting.)  And while “midterm” elections such as this year’s have historically seen lower turnout, a mix of polling, analysis, and reporting suggests that the November 6th election will see particularly strong voter interest.

This is all very interesting, you may be saying to yourself, but what on earth does it have to do with employment discrimination?  Simple!

A majority of states have some form of laws that require employers to provide employees with time off for voting.  In these states, employers are frequently prohibited from taking adverse action or retaliating against employees who exercise their right to take voting leave, with significant penalties for noncompliance.

Just check out this map from Business Insider to get a sense of how prevalent employee state voting leave laws are (disclaimer: do not rely solely on the descriptions from the Business Insider article to assess compliance with state voting leave laws; at minimum, you’ve got to actually read the applicable laws, of course!).

There is no federal law providing voting leave, and state voting leave laws often vary in their scope and terms.  In addressing workplace policies and practices as it concerns state voting leave laws, some questions that typically come up are:  is the leave paid or unpaid?  How much time off must employees be given to vote?  Can employers verify that employees who take voting leave have, in fact, voted?  How much notice must employees provide of the intent to use voting leave?  To what election(s) do voting leave requirements apply?  Is there an exception for small businesses?  Can the employer designate times for employees to take off?  Can employees be required to request absentee or vote by mail ballots in lieu of taking voting leave?  Etc.

With Election Day quickly approaching, employers should review the applicable laws on voting leave in their state(s) of operation, in order to facilitate proper planning and legal compliance.

When I get asked about non-discrimination and harassment prevention in the workplace, a significant proportion of these questions focus on race discrimination and sexual harassment.  Still, employers should be mindful of other protected characteristics under federal and state law, even if charges and lawsuits on those bases are, statistically speaking, less frequent than others.

While EEOC data show that charges alleging religious discrimination and harassment in the workplace constituted only 4% of charges received in fiscal year 2017, religious discrimination and harassment are prohibited by Title VII and pose significant liability risks to employers.  A lawsuit filed recently in federal court in Florida highlights this point.

Christine Choo-Yick was an employee of the US Customs and Immigration Enforcement agency within the federal Department of Homeland Security.  Ms. Choo-Yick is a person of Muslim faith.  While she also alleged sexual harassment, the allegations in her complaint primarily focus on harassment directed at her in the workplace on the basis of her religion:

8. [ . . . ] b.  Many of the Plaintiff’s co-workers have made derogatory and unethical comments about the Plaintiff’s faith and/or race.

c.  During the week of September 4, 2017, Officer Sean Stephens laughed at and criticized the Plaintiff for wearing a Hijab Muslim hair scarf.  He further stated, “what is that you have on your head,” while humiliating the Plaintiff with boisterous laughter.

d.  On or around October 10, 2017, a visiting employee called the Plaintiff a “Hijabist” and a “terrorist.”

e.  On or around November 2, 2017, a co-worker stated that the Plaintiff was a member of ISIS.

Needless to say, these alleged comments are abhorrent.  However, evidence suggests incidents like this are becoming more frequent.  A wide-ranging 2017 study by the Pew Research Center that found incidents of anti-Muslim discrimination in America are on the rise, with 48% of U.S. Muslims saying they were subject to at least one discriminatory incident based on their religion within the previous year.  In the same study, an estimated 75% of U.S. Muslims agreed that there is “a lot of discrimination against Muslims in the United States.”

Apart from the obvious issues of religious discrimination and harassment, comments of this type in the workplace may also implicate discrimination or harassment on the basis of race, color, and/or national origin under Title VII, depending on the facts.  Indeed, the potential for these issues to be intertwined prompted the EEOC to publish a reminder of employers’ obligations to prevent discrimination and harassment on each of these bases in the wake of the September 11th attacks.

The bottom line for employers: discrimination or harassment on the basis of religion is prohibited.  Period, full stop.  Employers’ policies, practices, and non-discrimination and harassment prevention trainings should be careful not to neglect this point.

Here at our Employment Discrimination blog, we’ve written about the intensifying focus on workplace sexual harassment, in light of the #MeToo movement, at the federal agency level.  Laws addressing workplace sexual harassment, however, aren’t the exclusive province of the federal government.

Indeed, state and local governments have been quite active in addressing sexual harassment in employment.  The Minnesota Legislature, for example, is considering an amendment to the definition of sexual harassment to expand liability for harassment.  New York State has also passed sweeping changes to state law, while New York City has passed a law requiring employers with 15 or more employees to provide annual sexual harassment prevention training.

Delaware has now joined the growing list of states and local taking action on this front.  A recently enacted law requires (among other items) certain employers to to provide mandatory, interactive sexual harassment prevention training every years–including additional training for supervisors.

Our Fox Rothschild colleagues Steven Ludwig and Chaney Hall have written a new Alert detailing the requirements of the Delaware law; check it out to learn more!

 

The Pennsylvania Human Relations Commission (PHRC), Pennsylvania’s leading agency that investigates and enforces Pennsylvania’s employment discrimination laws, has voted to accept complaints of discrimination from lesbian, gay, bisexual, and transgender (LGBT) individuals.  Specifically, the PHRC has stated it will interpret complaints alleging workplace discrimination against LGBT individuals to fall under state law prohibiting discrimination on the basis of “sex”:

The term “sex” under the PHRA may refer to sex assigned at birth, sexual orientation, transgender identity, gender transition, gender identity, and/or gender expression depending on the individual facts of the case.

The prohibitions contained in the PHRA and related case law against discrimination on the basis of sex, in all areas of jurisdiction where sex is a protected class, prohibit discrimination on the basis of sex assigned at birth, sexual orientation, transgender identity, gender transition, gender identity, and gender expression.

The Commission will accept for filing sex discrimination complaints arising out of the complainant’s sex assigned at birth, sexual orientation, transgender identity, gender transition, gender identity, and gender expression using any and all legal theories available depending on the facts of the individual case.

Discrimination complaints identifying “sex” as the protected class and specifying allegations related to sex assigned at birth, sexual orientation, transgender identity, gender transition, gender identity, and gender expression will be evaluated on a case by case basis throughout the Commission’s filing, investigation, and adjudication processes.

While the City of Philadelphia already prohibited workplace discrimination on these grounds, the PHRC’s actions extend protected status to LGBT employees throughout the Commonwealth.

Our blog has previously discussed the question of whether laws prohibiting sex discrimination inherently protect sexual orientation and/or gender identity in the context of Title VII.  While many observers expect the Supreme Court to eventually weigh in on the Title VII issue, the question remains in flux as a matter of federal law.

In light of the lack of clarity in the Title VII case law, states are beginning to take action.  For example, the Michigan Civil Rights Commission took action earlier this year, unanimously voting to prohibit employment discrimination on the basis of sexual orientation and gender identity.

The PHRC’s action can be viewed as part of the trend of state agencies taking action to interpret their own state laws independently of federal court guidance.  This is significant because even if the Supreme Court ultimately rules that Title VII does not protect employees’ sexual orientation and/or gender identity, these state agency interpretations would not be overruled.  State court challenges to these agency interpretations, however, remains a possibility and warrants monitoring.

The takeaway for Pennsylvania employers is more straightforward: assess your hiring, equal opportunity, and anti-harassment policies, programs, and practices to make sure they include sexual orientation and gender identity or expression as protected characteristics and reflect non-discrimination and non-harassment principles as it applies to LGBT employees and applicants.

Unless you’ve been living under a rock in New Jersey, you likely know that paid sick leave will be the law of the land for all New Jersey employers beginning on October 29, 2018.  We recently issued an update on the law and included a link to the draft poster that has been issued by the State.  More details can be found here.

The poster may not be in final form as the regulations have not been finalized.  However, employers must still post the poster by October 29, 2018.

If you haven’t already reviewed your sick leave policies for compliance, you should do that asap to be ready when the law goes into effect.

The US Equal Employment Opportunity Commission (EEOC), the lead agency that administers federal anti-discrimination laws, has publicly announced its preliminary data for Fiscal Year 2018 regarding charges of sexual harassment in the workplace.

And while the data are still preliminary, they are striking, perhaps reflecting the growth and influence of the #MeToo movement.

In several key metrics, the EEOC announced it had seen increasing results relating to charges of sexual harassment in the workplace in FY 2018:

  • the EEOC filed 41 lawsuits against employers that included claims of sexual harassment, an increase of over 50% from the previous year;
  • the EEOC obtained $70 million for employees through enforcement action, an increase of over 47% (or $22.5 million) from the previous year; and
  • discrimination charges filed by employees with the EEOC that included sexual harassment allegations increased by 12% from the previous year.

This uptick in activity related to workplace sexual harassment is part of a longer-term emphasis by the EEOC.  For example, the agency launched a training program in October, 2017, following on the heels of the agency’s extensive task force report on workplace harassment that it issued in 2016.  In addition, the EEOC’s Strategic Enforcement Plan for Fiscal Years 2017 through 2021 includes preventing systemic workplace harassment as one of its six substantive area priorities.

In light of the EEOC’s intensifying focus on sexual harassment and the increase in sexual harassment charges filed with the EEOC, employers should consider reviewing and updating their anti-harassment training programs, policies, and practices.