General Employment Discrimination

Subscribe to General Employment Discrimination

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.

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.

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.

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.

Over at In the Weeds, our Firm’s blog on the developments in cannabis law, my colleague Joseph McNelis shares a breaking development at the intersection of cannabis law and employment discrimination law.  This legal intersection poses a complicated series of questions, requiring courts to weigh the illegality of cannabis under federal law with state laws that authorize medical marijuana use (which themselves sometimes contain provisions prohibiting workplace discrimination on the basis of an employee’s state-authorized use of medical marijuana).  As Joe notes, a recent decision by the United States District Court for the District of Connecticut, Noffsinger v. SSC Niantic Operating Company, LLC, addresses precisely this issue.

In July, 2016, the plaintiff in this case applied for and accepted a job offer from a health and rehabilitation center.  Several years prior, she had been diagnosed with post-traumatic stress disorder (PTSD) after experiencing a car accident.  On the recommendation of a provider, she began using medical marijuana under Connecticut’s state-authorized medical marijuana program to treat her PTSD symptoms in 2015.  The case recites what happened after the plaintiff accepted the job:

Plaintiff and [employer’s administrator] agreed that a follow-up visit would take place on July 25 for the completion of pre-employment papers, background check, and drug screen.  At this follow-up meeting, plaintiff disclosed to [the administrator] her PTSD diagnosis and her participation in Connecticut’s medical marijuana program.  She explained that she took prescription marijuana in the evenings as a “qualifying patient” under [Connecticut’s medical marijuana statute] and showed [the administrator] her registration certificate and an empty pill container which displayed her name and dosage of her medical marijuana pills.

When the plaintiff subsequently tested positive for THC, a chemical component of marijuana, the employer rescinded the job offer.  The plaintiff then sued under Connecticut’s medical marijuana law, which contains anti-discrimination language:

[U]nless required by federal law or required to obtain funding: . . . (3) No employer may refuse to hire a person or may discharge, penalize or threaten an employee solely on the basis of such person’s or employee’s status as a qualifying patient . . . Nothing in this subdivision shall restrict an employer’s ability to prohibit the use of intoxicating substances during work hours or restrict an employer’s ability to discipline an employee for being under the influence of intoxicating substances during working hours.

Notably, the Court rejected each of the employer’s arguments and granted summary judgment to the plaintiff in this case–although it rejected her claims for attorneys’ fees and punitive damages.

For more details on the case and items for employers to consider in a situation like this, check out Joe’s post.  And for more general background information on states’ legalization of marijuana and how that can impact the workplace, check out our Firm’s recently published Resource Guide.

The Michigan Civil Rights Commission has taken significant action to clarify that its state statute prohibiting discrimination in employment on the basis of sex (among other characteristics) extends to prohibit employment discrimination based on orientation and gender identity:

The Michigan Civil Rights Commission voted 5-0 to approve a statement legally interpreting the Elliott-Larsen Civil Rights Act’s ban on “discrimination because of . . . sex” to include discrimination against sexual orientation or gender identity . . .

The idea of an interpretive statement from the commission, initially requested by Equality Michigan last year, was revived after the 6th Circuit Court of Appeals ruled in favor of a transgender woman who said she was illegally fired by a funeral home in Garden City while transitioning from male to female . . .

The [Michigan Department of Civil Rights] will begin taking complaints related to sexual orientation or gender-based discrimination.

Regular readers of our blog will be familiar with this particular legal issue, as we have previously discussed the question of whether bans on sex discrimination necessarily also ban discrimination on the basis of sexual orientation and/or gender identity in the context of federal law.  This legal question is a hot topic in employment litigation in federal courts across the country.  Because of widely divergent outcomes in federal district and circuit courts across the country in addressing this question, we will likely have to wait until the U.S. Supreme Court weighs in to have a definitive interpretation of federal law.

Irrespective of the federal question, however, there appears to be a trend toward states considering this issue in the context of their own non-discrimination laws.  The Michigan Civil Rights Commission’s decision is similar to proposed guidance announced by the Pennsylvania Human Relations Commission from late 2017.  This development is important because a Supreme Court decision on this issue under federal law may not necessarily prove binding on states’ interpretations of state law.

We will, of course, continue to monitor this issue as it develops around the country.

Last week, Minnesota legislators introduced a bill to amend the definition of sexual harassment under state law.  Indeed, this legislation has already received significant attention in the media throughout Minnesota.  And although the bill adds only a single sentence to existing law, it has the potential to significantly reshape the legal landscape for employees who bring sexual harassment claims against their employers.  The substantive text of the amendment reads as follows:

An intimidating, hostile, or offensive environment … does not require the harassing conduct or communication to be severe or pervasive.

To unpack what this means, it’s necessary to first review some general principles of the law concerning sexual harassment.  Sexual harassment is a prohibited form of sex discrimination under state and federal employment non-discrimination law.  For a time, courts struggled to precisely define prohibited harassment.  In 1986, the Supreme Court, interpreting federal law, held that “[f]or sexual harassment to be actionable, it must be sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.'”  Generally, state law in Minnesota has followed this interpretation.

The severe or pervasive standard is an attempt by courts to reconcile issues of degree (i.e., severity) and frequency (i.e., pervasiveness) into what constitutes unlawful sexual harassment in the workplace.  The standard recognizes that some acts of alleged harassment are so severe that the conduct may be actionable even if it occurred only once.  For example, a single instance of unwanted, inappropriate physical contact from a coworker might be sufficiently severe to be actionable, depending on the facts.

Simultaneously, the standard acknowledges that severity is not the only way by which illegal sexual harassment can occur.  Hence, the standard recognizes that some acts of alleged harassment, which may not seem as severe, can occur with such frequency as to create a hostile working environment.  For example, workplace remarks that might be considered only mildly inappropriate may, if made regularly or with a high frequency, constitute sexual harassment.  Note: the complained of conduct must only be severe or pervasive to be actionable; it is not necessary to be both severe and pervasive, although some complaints of sexual harassment may meet both standards.

Critics of the severe or pervasive standard, who presumably include the bill’s sponsors, have argued it discourages employees from making legitimate reports and/or claims of sexual harassment by setting the bar too high.  In removing the severe or pervasive standard, the Minnesota bill therefore redefines illegal sexual harassment in employment as “conduct or communication has the purpose or effect of substantially interfering with an individual’s employment . . . or creating an intimidating, hostile, or offensive employment . . .  environment.”  What, exactly, meets this standard would be determined by Minnesota courts.

Critics of the bill have argued that removing the severe or pervasive standard removes important guideposts for courts evaluating sexual harassment claims.  In their view, this bill risks creating a flood of new lawsuits, broad exposure for employers without large, sophisticated Human Resources departments, and potential inconsistencies in how the law of sexual harassment is applied.

Employers should keep an eye on this legislation as it proceeds through the legislative process.  If passed in its current form, the bill would apply to causes of action arising on or after August 1, 2018.  Employers can track the status of this legislation at the Minnesota Legislature’s website.

Maryland’s Disclosing Sexual Harassment in the Workplace Act of 2018, which awaits Gov. Larry Hogan’s signature, imposes stricter waiver and disclosure requirements regarding sexual harassment on Maryland employers beginning on October 1, 2018.  The bill was passed by both houses of the Maryland General Assembly and a Governor’s veto is not anticipated.

The bill impacts Maryland employers in two ways.  First, the bill prevents employers from asking employees to waive their future rights to come forward with sexual harassment complaints and provides that such waivers are void as a matter of public policy.  Second, the bill requires employers with 50 employees or more to disclose: 1) how many settlements the employer has made after a sexual harassment allegation; 2) how many times an employer has settled allegations of sexual harassment made against the same employee; and 3) the number of settlements of sexual harassment complaints that included non-disclosure provisions.  The Maryland Commission on Civil Rights will collect and compile the data and make it publicly available, including the employers’ identities (although not the identities of the alleged harassers or victims).

Maryland employers should  pay close attention to whether any of their contracts, policies, or agreements require employees to waive a future right to assert a sexual harassment claim or complaint.  Any waiver requirements should be eliminated by October 1, 2018, in accordance with the new law.  Additionally, employers subject to the reporting requirement should develop a reliable method of accurately tracking the data required to be disclosed.  This is a good opportunity for employers operating in Maryland to perform a comprehensive review of their sexual harassment policies, make any necessary revisions, and provide training to their managers in an effort to educate their employees as well as reduce the risk of sexual harassment claims being asserted in the future.

 

Monday, New York’s budget bill for FY 2019 was presented to the Governor for signature.  Buried among the usual budget line items are several provisions that will drastically affect employers.

In what seems to be a direct response to the #metoo movement, the bill sets training requirements, prohibits mandatory arbitration of discrimination claims, and outlaws confidentiality provisions in settlement agreements unless specifically requested by the complainant.

The employment related provisions are set forth in S7507-C.  Here are the highlights (or low lights depending on your point of view):

  • Mandatory Harassment Policies:  All employers must have a policy against harassment that complies with or exceeds the model harassment policy that will be developed by the Division on Human Rights.  At a minimum, the policy must:
    • prohibit sexual harassment consistent with guidance issued by the department in consultation with the division of human rights and provide examples of prohibited conduct that would constitute unlawful sexual harassment;
    • include information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment and a statement that there may be applicable local laws;
    • include a standard complaint form;
    • include a procedure for the timely and confidential investigation of complaints and ensure due process for all parties;
    • inform employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially;
    • clearly state that sexual harassment is considered a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and against supervisory and managerial personnel who knowingly allow such behavior to continue; and
    • clearly state that retaliation against individuals who complain of sexual harassment or who testify or assist in any proceeding under the law is unlawful.
  •  Mandatory Training:  All employers must also provide “interactive” training to their employees.  The Division will also be developing a model training program that must include:
    • an explanation of sexual harassment consistent with guidance issued by the department in consultation with the division of human rights;
    • examples of conduct that would constitute unlawful sexual harassment;
    • information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment;
    • information concerning employees’ rights of redress and all available forums for adjudicating complaints; and
    • address conduct by supervisors and any additional responsibilities for such supervisors.
  • Statements by Public Contractors:  Public contractors submitting a bid for work with the State must include a statement that they have a policy against sexual harassment and that they provide training to employees on that policy.  Public Contractors must generally comply with the policy and mandatory employment training that applies to all employers under new Labor Law §201-g which sets for the policy and training requirements.
  • Prohibition on Mandatory Arbitration Agreements:  No employer may require that a claim of unlawful discrimination or sexual harassment be submitted to mandatory arbitration.  Voluntary arbitration provisions are still okay.  Collective bargaining agreements trump this provision, so if the CBA requires arbitration of discrimination or sexual harassment, then that would not run afoul of the law.  The law only bans this on a prospective basis and the law will not apply to any agreements entered into prior to the effective date of the law.
  • Bar on Most Confidentiality Agreements:  Settlement agreements may not contain confidentiality provisions requiring the complainant to keep the facts of the harassment or discrimination confidential unless the complainant voluntarily agrees to it.  Employers may still put a draft provision in agreements requiring confidentiality for the complainant to review.  The complainant must be given 21 days to review the provision. If the complainant accepts the provision, there must be a separate writing stating that.  Complainants must also have 7 days to revoke their acceptance of the agreement.
  • Provides Protection (and a Cause of Action) for Non-Employees:  the bill makes clear that an employer may be held liable if one of its employees sexually harasses a contractor, subcontractor, vendor, consultant or other non-employee providing services to the employer.

These provisions will go into effect 180 days after the law is enacted.  We assume that the forthcoming regulations may clarify certain aspects of the law such as how frequently harassment training must occur.  We will keep you updated when the regulations are issued.

In the meantime, employers should begin assessing their harassment policies and training programs.  Employers should also review settlement agreements and employment agreements for compliance with the law.

Recently I watched a male attorney speak to opposing counsel (a female) in a condescending, chastising manner that I cannot imagine he would have used if he had been speaking to a male attorney.  Her male colleague, who was standing right next to her, said nothing.  I said nothing.  And the female opposing counsel said nothing in her own defense.

During an emergency custody hearing a female friend of mine who practices family law pushed back on the terms proposed by opposing counsel, an older male.  Opposing counsel shook his head and muttered “every time with female attorneys.”  When my friend asked “what did you say?” he responded, “nothing, just talking to myself.”

We all know that discrimination based on gender is prohibited in the workplace.  We can’t refuse to hire or promote a woman simply because she is a woman.  We can’t prefer a male over a female solely on that basis.  We can’t do that because the law won’t allow it.

But what about the much more subtle, and yet maybe more pervasive, forms of discrimination that women experience every day, such as the examples above?  What about being expected to laugh demurely when a male judge referred to me as “kiddo” in front of a jury?  What about criticizing women based on appearance instead of their qualifications or capabilities (“she’s such a fat slob” instead of “she’s incompetent”)? What about the female told to “stop overreacting” or to “calm down” when she advocates fiercely on behalf of a client (or herself)?  And what about all of us who silently tolerate these types of behavior?

In many (although certainly not all) professional environments, blatant gender discrimination is the exception, rather than the rule.  However, more subtle forms of gender discrimination are ignored, shrugged off, and even accepted or condoned every day in the workplace.  Until we stop tolerating this behavior, gender discrimination will continue to permeate and poison work environments.  Not only does this perpetuate gender imbalance in the workplace, it also hurts morale, results in decreased productivity, increases turnover, and promotes inefficient hiring and promotion practices.  Accordingly, employers should pay close attention to the day-to-day practices in the workplace and enforce anti-discrimination policies to help ensure that productivity and profitability are not being negatively affected by gender discrimination.