There have been a number of studies and cases filed recently which demonstrate, once again, that the workplace is merely a microcosm of society at large, and reflects the ever-changing tensions, fault lines and biases inherent in a diverse society.     

For example, despite the fact that Muslims make up only 2% of the United States population, religious discrimination claims made by Muslims to the EEOC in 2009 accounted for 25% of such claims. It is not difficult to understand that world and national religious and ethnic tensions become employment issues as biases that are aired on national news shows trickle down to the workplace.

A recent study by the Center for WorkLife Law at Hastings Law School in California, written by Stephanie Bornstein and entitled “Poor, Pregnant, and Fired: Caregiver Discrimination Against Low-Wage Workers,” highlights the plight of low-wage workers, typically single parents, who must take care of ill or aged family members. Frequently these workers are former social service recipients who have entry-level positions, or hold down many jobs, and who get fired because they need to take time off as caregivers. Public policy aside, there are laws which protect such workers, such as the FMLA, under which employers have frequently been socked with big judgments by such workers. The report recounts such cases, and notes that the success rate for “caregiver discrimination lawsuits” is higher than other discrimination lawsuits, and that the average verdict in such cases is $500,000. Employers take note!

Finally, a suit that is the first of its kind has been filed in New Jersey by a transgendered man who was fired shortly after starting a job as a urine monitor at a drug treatment center – a position which is open only to men.  Neither sexual orientation nor gender status is a protected class under Title VII, and this lawsuit was therefore brought under state law.   See El’Jai Devoureau v. Camden Treatment Associates

As a postscript to the last point, it should be noted that although Title VII does not cover lesbian, gay, bisexual or transgendered employees as such, some employees have brought harassment suits claiming “gender stereotyping” as a form of discrimination based upon gender, and not sexual orientation nor gender status. However, such cases must fall within a very narrow set of facts – i.e., the claim must be that the employer’s adverse action was based not upon sexual orientation or transgendered status, but upon a failure by the employee to conform to gender stereotypes.   

See the following cases:

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)

Prowel v. Wise, 579 F.3d 285 (3d Cir. 2009)

Lewis v. Heartland Inns, 591 F.3d 1033 (8^th Cir. 2010)

Smith v. Salem, 378 F.3d 566 (6^th Cir. 2004)

Barnes v. Cincinnati, 401 F.3d 729 (6^th Cir. 2005)