General Employment Discrimination

Bloomberg BNA is out with a news story about a recent case filed in federal court in Georgia, which poses an interesting question:  does Title VII protect an employee on the basis of his or her spouse being a member of a different race from the employee?  Among the Circuit Courts of Appeals that have tackled this question, the answer is yes.  We’ll get to the reason why momentarily, but first, let’s take a look at the new case in Georgia:

Costco Wholesale Corp. permitted discrimination and harassment of a black female worker married to a white man, according to a federal lawsuit filed in Georgia . . .

Levara Speight brought associational discrimination claims under Title VII of the 1964 Civil Rights Act and the Civil Rights Act of 1866 (42 U.S.C. § 1981) against Costco, in addition to race bias, harassment and retaliation claims.

She alleged that a supervisor and a co-worker, who are both black, began to harass her after they discovered that her husband is white. She claimed that she was told, “You’re not black,” that she acted “like a 16-year-old white girl,” and that she liked “white people music,” such as Billy Joel. Speight, a pharmacy technician, said she was demoted to a cashier position after she complained about the harassment.

 

This kind of claim is known as associational race discrimination and is based on a quite simple concept.  A claim of this kind is premised on the idea that discriminating against an employee because the employee’s spouse is of a different race necessarily implicates the employee’s own race. Here, the plaintiff is arguing that she was subjected to race-based harassment because of her interracial association, in that she (an African-American woman) is married to a man of a different race (Caucasian).  Thus, the discrimination is necessarily based on her own race, in addition to that of her husband.  (If this concept sounds familiar, you may have read about it in the context of LGBT employees pursuing sex discrimination claims.)

While claims of this sort are not particularly common, they can be viable, depending on the circumstances.  Associational race discrimination cases also raise an important follow-up question:  what kind of association is required to support a claim?  While spousal relationships have been recognized as sufficient by courts that have considered the issue, the limits of an associational relationship remain an open question in many jurisdictions.

To learn more about this case and this type of claim, I encourage you to read the whole article, for which (shameless plug alert) I provided commentary.

Bill Egan writes:

Under the Americans With Disabilities Act (ADA), a covered employer must provide reasonable accommodations to disabled employees, unless doing so would cause an undue hardship on the employer. Generally, an employer’s duty to reasonably accommodate is initiated by a request for an accommodation from a disabled employee or someone speaking on the employee’s behalf.

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Copyright: bbourdages / 123RF Stock Photo

Most courts have held that a request for accommodation from an employee is a “predicate requirement” to the interactive process for determining whether a reasonable accommodation can be made and what that accommodation will look like. The ADA does not require an employer to speculate about the accommodation needs of employees and applicants.

That has now changed, at least in the Eighth Circuit.  In Kowitz v.Trinity Health, a hospital respiratory therapist returned to work under a lifting restriction after undergoing spine surgery and exhausting her 12-week FMLA leave.  Although the hospital initially accommodated this restriction, it terminated the therapist’s employment after she advised that her doctor restricted her for four months from performing the physical demonstration portion of the “basic life support” recertification process, a departmental requirement.

The District Court granted summary judgment to the hospital concluding that Kowitz was not qualified to perform the essential functions of her job because she was not certified to provide basic life support.  The court further held that because Kowitz never requested a transfer to another position, the hospital was under no obligation to reassign her to a position that did not require the basic life support certification.

The Eighth Circuit reversed, over a strongly worded dissent, holding that an express request for assistance is not needed to trigger an employer’s duty to discuss the reasonable accommodation option with an employee.  The court held, “Though Kowitz did not ask for a reasonable accommodation of her condition in so many words, viewing the facts in the light most favorable to Kowitz, her notification to her supervisor that she would not be able to obtain the required certification until she had completed physical therapy implied that an accommodation would be required until then.”

The lesson from Kowitz is if the facts known to the employer about an employee’s disability are sufficient to make the employer aware of the possible need for a reasonable accommodation, the employer is legally obligated to engage in the interactive process to determine if indeed the employee needs such an accommodation and whether an accommodation can be made without posing an undue hardship on the employer.


Bill Egan is a partner in the Labor & Employment Department, resident in Fox’s Minneapolis office.

10524387_sAt a recent meeting, the New Jersey General Assembly Labor Committee advanced three bills that would expand workplace protections for employees under New Jersey’s Law Against Discrimination (“LAD”).

The first bill, A-2294, seeks to amend the LAD to add protections for breastfeeding employees.  Specifically, A-2294 adds “breastfeeding” as a protected characteristics under the LAD, further seeking to amend the LAD to state that “‘pregnancy or breastfeeding’ means pregnancy, childbirth, and breast feeding or expressing milk for breastfeeding, or medical conditions related to pregnancy, [or] childbirth, or breastfeeding, including recovery from childbirth.”  In the employment context, this means that adverse employment actions based on breastfeeding, as defined, would be prohibited.

Furthermore, A-2294 would require employers to accommodate breastfeeding employees, including a requirement that the 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 for the child.”

The second bill, A-2646, would add “familial status” as a protected characteristic under the LAD.  A committee comment to the bill notes that familial status means:

[B]eing the natural parent of a child, the adoptive parent of a child, the resource family parent of a child, having a ‘parent and child relationship’ with a child as defined by State law, or having sole or joint legal or physical custody, care, guardianship, or visitation with a child, or any person who is pregnant or is in the process of securing legal custody of any individual who has not attained the age of 18 years.

The Assembly Labor Committee also advanced a third bill we have previously discussed, A-3480/A-4119, which would prohibit employers from asking employees about their wage/salary history.

Of course, normal legislative caveats apply:  these are the bills in their current form, which may or may not ultimately be enacted, and which may or may not be amended to varying degrees if ultimately enacted.  We will continue to monitor these pieces of legislation and will provide relevant updates should they move in the New Jersey Legislature.

Query: a longtime employee, who has previously identified in your workplace as female, begins dressing for work like a man, grooming according to male standards, and identifying as male.  He begins to make arrangements to have his name formally changed, and a number of other legal documents changed as well.  He also begins using the men’s room at work.  Other coworkers complain about “a woman using the men’s bathroom at work.”  What do you do?

According to the U.S. District Court for the District of Nevada, what you do not do is: 1) ban him from the men’s bathroom for being biologically female, 2) ban him from the women’s bathroom for identifying as male, and 3) require him to use only gender-neutral bathrooms.  Last week, the court made headlines when it granted summary judgment against a school district, on a Title VII sex discrimination claim brought by one of the district’s police officers.  (Roberts v. Clark County School District, No 2:15-cv-00388-JAD-PAL, ECF No. 147).

While the court denied summary judgment as to the officer’s retaliation and hostile workplace claims, it noted that established case law holds that sex stereotyping is prohibited sex discrimination under Title VII.  In this case, the court noted that the district banning the officer from using the women’s bathroom “because he no longer behaved like a woman” was direct evidence of impermissible sex stereotyping.

Also of note: in granting partial summary judgment, the court held that Title VII’s prohibition against sex discrimination includes both sex and gender.  At this point, some of our readers might be somewhat confused at the difference between sex and gender. Citing language from the Ninth Circuit, the court noted the difference between these key terms, in recounting the case law history in this area:

These early cases distinguished between the term ‘sex’, which referred to an individual’s distinguishing biological or anatomical characteristics and the term ‘gender’, [which] refers to an individual’s sexual identity, or socially-constructed characteristics.

The court’s language is significant because it simultaneously rejected the school district’s argument to draw legal distinctions based on these terms:

Although [the district] contends it discriminated . . . based on his genitalia, not his status as a transgender person, this is a distinction without a difference here. [The officer] was clearly treated differently than persons of both his biological sex and the gender he identifies as–in sum, because of his transgender status.

Moreover, the court held that the bathroom action alone was a sufficiently adverse employment action — in that “access to restrooms is a significant, basic condition of employment” — to involve Title VII protections.

We have previously discussed two separate theories that the EEOC and plaintiffs have used to argue sexual orientation and/or gender identity are incorporated into Title VII’s ban on sex discrimination.  These theories have had a mixed track record of success, and there is no certainty in predicting how they will continue to play out in the coming months and years.

Still, a key takeaway from this case is that employers should retain knowledgeable counsel to advise on employee workplace transitions.  Effective transition management can not only help defuse potential workplace tension and avoid litigation, but it can also lead to a more productive workplace, happier employees, and keeping pace with the market’s movement in this direction.

Gambling at casinos and on sports events have been a part of the fabric of American life since long before employment laws existed.  Unfortunately, the thrill of the bet can give way to a compulsive addiction that, left unchecked, can destroy an individual’s life.  If you have a workplace of any size, it is likely that there is at least one employee who suffers in silence from gambling addiction.

In a large percentage of cases, this has no effect on the workplace environment.  However, often gambling addictions give way to substance abuse, depression, and theft, all of which have serious implications on the workplace.

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However, federal and state courts (in most states) have been very clear that gambling addictions are not disabilities under the Americans with Disabilities Act or most of the state corollaries.  Despite the fact that the definition of “disability” has broadened over time, an employee is likely not going to be able to sustain an action for discrimination based upon a gambling addiction.

What should an employer do if an employee confesses an addiction to gambling?  Well, obviously we recommend referring them to the myriad of support groups that address the underlying issue (1-800-GAMBLER being the most well-known).  If the gambling addiction is accompanied by a disability that is recognized by state and federal law, that disability should be addressed. Beyond that, if the gambling addiction has led to bona fide performance issues, any discipline should be meted out at the discretion of the employer.

37744565 - legislation blank list, business conceptEarlier this month, members of the New Jersey General Assembly introduced legislation to prohibit employers from seeking wage/salary histories from prospective employees.  Assembly Bill 4119 (“A-4119”) follows on the heels of other states that are looking to take action on this issue, as well as similar efforts at the federal level.

The public policy rationale often cited by legislatures in passing these kinds of bills is that they may help close the gender wage gap.  The substantive discussion of whether these efforts are effective is beyond the scope of this blog, so for our purposes, we are focusing solely on the effect this legislation would have on employers.

Specifically, A-4119 would make it an unlawful employment practice:

For any employer to seek the wage or salary history of a prospective employee, or require, as a condition of employment, that an employee disclose information about either the employee’s own wages, including benefits or other compensation, or about any other employee’s wages; and for any employer to require that a prospective employee’s prior wage or salary history meet any minimum or maximum criteria as a condition of being interviewed, or as a condition of continuing to be considered for an offer of employment. 

As far as such things go, this is a broad prohibition — and one that would subject employers to liability under New Jersey’s Law Against Discrimination.

In addition to the text above, there are three other provisions to note.  First, the bill also notes that it would not prohibit prospective employees from volunteering wage/salary history, as long as that disclosure was not coerced by the prospective employer.  Second, employers are only permitted to confirm (or permit the would-be employee to confirm) wage/salary history after making an offer of employment.  Third, A-4119 also includes an anti-retaliation provision.

As with all proposed legislation, standard disclaimers apply:  this is the bill in its current form, which may or may not ultimately be enacted, and which may or may not be amended to varying degrees if it is ultimately enacted.  We will continue to monitor this legislation and provide any relevant updates should it move in the New Jersey Legislature.

Regardless of the type of employer you are, you depend, on some level, on customers who are willing to pay for the goods or services being offered.  And the old adage, “The Customer is Always Right,” a mantra of the American business community since this country’s founding, is as true today as it was then.  But from time to time, valued customers will step over the line and act inappropriately towards company employees.  If and when that occurs, employers need to understand the legal ramifications of dealing with the fallout.

Recently, a receptionist at a New Jersey automobile dealership brought an action against her employer for violation of the New Jersey Law Against Discrimination.  In the Complaint, she alleged, inter alia, that her employer retaliated after she pressed charges against a high-profile customer who had tugged at her shirt and exposed her bra.   Thereafter, she alleged that her work environment became hostile until she was terminated.

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This case has been up to the Appellate Division in New Jersey, who ruled that the employer is not responsible for the conduct of a non-employee, and will not be held responsible for customer conduct under most circumstances.  However, the Appellate Division did find that an employee filing charges against a customer is a protected activity that protects and individual against employer retaliation.

The upshot of the case is that in the rare case that customer behavior crosses over the line of good taste, take immediate measures to correct the situation.  In the even rarer case that the conduct becomes criminal, let your employees know that if they choose to press charges, they will not the subject of retaliation in any way, shape, or form.

As my colleague Christina Stoneburner wrote earlier in the week, we aren’t even through summer 2016, yet the number of new employment laws and regulations enacted that employers must contend with are already piling up.  Massachusetts recently joined the fray, with Governor Baker signing into law earlier this month S.2119 (effective January 1, 2018), which addresses pay equity discrimination based on gender.  Notably, the new pay equity legislation reiterates what Massachusetts and federal law have long stated: pay disparities based on gender are unlawful.  However, this new law goes further, is more employee-friendly than ever, and specifically addresses neutral conduct that arguably affects gender pay equality.

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One unique and notable component of the new law is a first-of-its-kind “ban the box” type prohibition that makes it unlawful to inquire regarding the prior salary history of prospective employees (similar to the prohibition of criminal conviction questions that many jurisdictions have recently adopted). Questions about prior salaries are extremely common and can be found on most employment applications.  However, this practice must now be eliminated in Massachusetts.  The intent of the legislature is to root out historic pay discrimination by forcing pay decisions to be made based on the job and not prior salaries.  The law prohibits, any time prior to making an offer of employment (with salary offer), either directly requesting prior salary information from the prospective employee and/or his or her former employers, or indirectly researching the same.  Moreover, employees cannot be prohibited from discussing their wages amongst themselves (although such policies are already prohibited by current interpretations of the National Labor Relations Act).

In addition, the law reiterates that actual pay differences based on gender are expressly prohibited where employees are engaged in “comparable work,” which is defined as any job(s) (regardless of titles) that require “substantially similar skill, effort and responsibility . . . under similar working conditions.”  Moreover, the law clearly delineates the few bona fide non-discriminatory reasons allowed for neutral pay policies, namely: (i) seniority pay systems, (ii) merit pay systems, (iii) production or sales quality/quantity pay systems, (iv) geographic differences, (v) job relevant education, training, and/or experience, and (vi) job related travel.  Lastly, the statute contains an anti-retaliation provision that prohibits taking retaliatory action against employees or applicants that oppose practices prohibited by the law.

An action enforcing the statute may be brought within three years of any discriminatory act, either by the attorney general or through civil litigation by the affected employee(s) and/or applicant(s), including but not limited to by class action.  Damages recoverable include any owed or diminished wages and benefits, as well as additional “liquidated” damages (which doubles any owed compensation) and any reasonable attorneys’ fees and costs.

The one piece of good news for employers is that an affirmative defense is provided in the statute where an employer, within the prior three years, conducts a good faith self-evaluation of its pay practices in order to eliminate pay discrepancies based on gender. As a result, it is recommended that prior to the effective date of the act that employers conduct a thorough review of all employee handbooks, non-disclosure agreements, employment applications, and other new hire policies and forms, as well as review institutional pay structures and systems, to ensure compliance with the law.  As always, your friendly Fox Rothschild attorneys are here to help in this regard.

 

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57530400 – deadline note calendar planner concept

This week, the EEOC officially opened its EEO-1 survey process for 2016.  The EEO-1 form requires employers who meet qualifying thresholds to provide certain data about their workforces (e.g., race, ethnicity, gender, job classifications/categories, etc.) to the EEOC.

Who must comply?  1) Private employers with 100 or more employees; 2) private employers with fewer than 100 employees, if the company is owned by/affiliated with another company such that the enterprise employs 100 or more employees; and 3) certain prime and first-tier subcontractors of the federal government who have contracts totaling $50,000 or more.

You may be thinking to yourself:  Self, this seems like a lot of complicated paperwork, and I am not going to do it.  There are (at least) three excellent reasons why you should!

First, it’s required by law.  If your business meets one of the thresholds above, both Title VII itself and federal regulations require you to complete the EEO-1.  Failing to complete the EEO-1 may well result in the EEOC going into federal court to compel your compliance.

Second, it’s not (technically) paperwork.   The EEO-1 is submitted electronically (unless your business faces what the EEOC calls “extreme circumstances where Internet access is not available” and gets EEOC permission to submit paper forms).

Third, EEOC uses the data generated from EEO-1 as part of its ongoing enforcement efforts — for example, analyzing employment patterns within particular industries, regions, etc.  Providing the required data, in theory, helps the EEOC to make these decisions and analyses with a more accurate picture of the workforce.

September 30th is the filing deadline.  Have questions?  See the EEOC’s FAQ page on the EEO-1 process here.

3324553_s Yesterday, the U.S. Seventh Circuit Court of Appeals affirmed a lower court ruling holding that Title VII does not prohibit employment discrimination on the basis of sexual orientation.  The case involved a lesbian part-time employee, who alleged she was deprived of the opportunity for full-time employment and was not promoted due to her sexual orientation.  After losing her case at the District Court level, the employee appealed to the Seventh Circuit.

The Seventh Circuit noted its hands were tied in the matter:

Since Hamner and Spearman, our circuit has, without exception, relied on those precedents to hold that the Title VII prohibition on discrimination based on ‘sex’ extends only to discrimination based on a person’s gender, and not that aimed at a person’s sexual orientation.

In affirming the decision, the court also pointed to the fact that Congress had not amended the law to include sexual orientation and the fact that the Supreme Court has not established precedent extending Title VII protections to employees on the basis of their sexual orientation.

While Title VII does not expressly include sexual orientation as a protected characteristic in its ban against employment discrimination, your faithful blog authors have discussed a number of legal theories under which LGBT employees have sought relief.  We have discussed the sex stereotyping theory, i.e., the idea that an employee’s failure to conform to gender stereotypes or norms may be actionable for LGBT plaintiffs under Title VII.  We have also discussed what might be called the “referential” theory, under which the EEOC has argued that sexual orientation cannot be understood as a distinct concept from sex, and that sexual orientation discrimination is therefore sex discrimination by definition.

Absent congressional action or Supreme Court guidance, employers continue to face some uncertainty as to the viability of these kinds of claims — which some courts may find persuasive.  In light of this uncertainty, employers should consider doing three things:

  • Remember that even if not covered by Title VII, sexual orientation may be a protected characteristic in employment under state, county, local law, or executive order — depending on the jurisdiction(s) where a business operates
  • Proactively develop policies and procedures to prevent sexual orientation discrimination in the workplace, even in jurisdictions where it is not a protected characteristic
  • Continue to monitor these legal developments and discuss them with legal counsel