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.

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.

36106719 - competitive business concept

A Colorado federal judge recently ordered the City and County of Denver to pay $1.67 million to job applicants who alleged that Denver’s employment screening tests had a disparate impact on black and Latino applicants.  The class action was tried in an 8-day bench trial in April 2016 after Judge Krieger denied summary judgment.

Denver used ACCUPLACER tests published by College Board as pre-placement tests.  The tests were developed to place students in college-level courses and were not validated for use in making hiring decisions.

This case is a rather expensive reminder that any type of employment test must be validated for employment purposes.  The EEOC has issued guidance on the use of employment tests that provides some best practices for employers to follow.

The most important thing to think about is whether the test is really job-related.  In other words, does the test actually relate to job skills that are required for the job?  Then, the test must also be checked to insure that it does not have a disproportionate impact on any protected class.

Employers who have tests validated once cannot simply assume that the test is safe to use in perpetuity.  If job duties or skills have changed for the position for which the test is being administered, then the test should be re-validated.

Finally, employers should not just assume that because a test is simple it does not need to be validated.  Even a simple math test given to applicants who may handle money would need to be validated.

 

We don’t normally talk a lot about NLRB decisions and rulings related to the NLRB on this blog.  However, in light of the importance of the DOL Persuader rule, we wanted to update you on events that have management-side attorneys jumping for joy.

6608700 - happy business couple jumping isolated over a white background

If you are thinking to yourself that you have no idea what the DOL Persuader rule is, the short version is that it would have directly impacted the advice that attorneys could give employers during union organizing campaigns as some of that advice could be deemed persuader activity under the Labor Management and Reporting Disclosure Act (“LMRDA”).  This rule would impact even non-unionized employers as it may apply to questions employers ask counsel about handbook policies such as non-solicitation provisions and progressive discipline policies that an employer wants to implement to thwart attempts at unionization.

The rule and the decision are discussed in more detail on the Firm’s Franchise Law Update. The decision can be found here: National Federation of Independent Business, et als. v. Perez.

The Court found that the rule was vague and intruded on employers’ First Amendment rights.  Although this is a significant victory for employers and their counsel, it may be temporary.  The decision will likely be appealed.

We will keep you posted.  In the meantime, if you have not already spoken to labor counsel about the potential implications of the rule, we recommend that you do so.

As many of you probably know, the EEOC has issued a proposed rule that, if adopted, would require significant changes to the EEO-1 reporting requirements.  The rule proposal is designed to help the EEOC gather data related to pay discrimination claims.  If adopted, it will require employers who are required to complete annual EEO-1 reports to submit pay data for all employees in addition to the number of employees in each racial classification.

This rule is likely going to increase the number of investigations and complaints filed alleging pay disparity.  The EEO-1 reports, by themselves, will be used in a broad sense to identify statistical anomalies that may trigger an investigation.  Missing from that raw data will be any legitimate reasons for pay disparities, such as experience and education levels.  However, employers will be required to comply with what could be a lengthy investigation process.

The comment period is currently scheduled to end on April 1, 2016.  Recently, ten Republican senators sent a letter to the EEOC asking for the comment period to be extended 90 days.  No word yet on whether the extension will be granted.

25114193_s

 

This week, the University of Southern California terminated Steve Sarkisian, their head football coach.  The firing came after a cavalcade of headlines that Sarkisian, essentially the CEO of a multi-million dollar enterprise, was increasingly showing up at practices, team functions, and even games allegedly under the influence of alcohol.  The move came one day after Sarkisian took an indefinite leave of absence to enter treatment for alcoholism.

Obviously, we here at the Employment Discrimination Report wish Coach Sarkisian nothing but the best in his attempts to embrace recovery and put his life back on track.  But the way USC handled the situation with a high-profile employee offers instruction on how to handle employees with substance abuse issues out of the public eye.

SteveSarkisian

Under the Americans with Disability Act and most state anti-discrimination statutes, alcoholism meets the definition of a disability.  But that should not be taken to mean an employer has to put up with an employee’s drinking on the job or showing up drunk simply because they are an alcoholic. The disease of alcoholism meets the definition of a disability, which means that an employer can’t take into account that an employee is an alcoholic when making employment decisions. However, an employer may maintain a blanket prohibition on drinking at work that applies to both alcoholics and non-alcoholics alike (If this is not in your handbook, it is well past time for an update).

An employee who can’’t meet those standards because of drinking may be disciplined, whether they are an alcoholic or not.  Taking Coach Sarkisian as an example, while he self-identifies as an alcoholic, USC can state that he was terminated for showing up intoxicated on the job, not because of his disease.  The moral of the story is that the employer must set policies that separate the disease from conduct.  This will allow employers to deal with employees caught drinking on the job yet still be in compliance with anti-discrimination statutes.

Feel free to contact our Labor and Employment Department with any further questions

The story of Rachel Dolezal, the recently-deposed head of an NAACP chapter in Spokane, WA, ignited a media firestorm last week with regard to claims that she, a Caucasian, “identified” as an African-American.  Opinions of Ms. Dolezal are passionate and varied, but regardless of one’s opinion of her, she illustrates an important point that New Jersey employers must remember- it is not the employee’s actual race (or sex, national origin, etc.) that matters, but rather what they are perceived to be in deciding whether they fall under a protected discrimination classification.

Let’s take Ms. Dolezal for example:  If she had brought an action against her employer for racial discrimination, she technically could have sued due for discrimination based on her African-American race (if she was perceived by her employer to be African-American) or, in the unusual circumstance of reverse discrimination, for being Caucasian (her actual race).  To wit, it is true that she allegedly sued a former employer in 2002 for discrimination based on her Caucasian race.

The point is that New Jersey discrimination statutes protect individuals for their actual characteristics as well as those which they are perceived to have by their employer.  Keep that in mind when evaluating exposure in the context of discrimination litigation.

31623407_s

This Christmas we wrote about a couple of wacky cases.  We got some good comments.

Merry Christmas!

crazy christmas : santa claus dog on motorbike bringing presents or gifts to everyone Stock Photo

Fun-Slapping” Case

On December 22nd we wrote about a New Zealand Herald report that “A young woman whose bottom was slapped in ‘fun’ by her boss has now been ordered to pay her former employer $5000 in costs in the case.”  It seems that the NZ Employment Relations Authority had before it the case of a female  employee who resigned after her former boss allegedly slapped her rear end.   Authority member Anna Fitzgibbon apparently found that plaintiff was unreliable as a witness but nonetheless also found that there indeed was such a slap which was “inappropriate and should not be repeated,” but also that it was all part of a joke.

Link:  http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11377890

We concluded that “We have absolutely no idea what to say about this bizarre case.”   Jose Ortal, business owner in the Eugene, Oregon area responded:  “Because there isn’t one.”

Susan T. Musumeci, an HR professional in Glendale, Arizona:

“Holy crap! Glad I don’t work in New Zealand. And a woman made this decision?! I just hope no one “fun slaps” her behind any time soon.

And what was the reason for the payment of $5K?  Cost of taking the claim to ERA?  Wasn’t it enough that for some strange and bizarre rationale, lost on most logically thinking people, that the plaintiff was found to not have a reasonable case (yet also being found that the “joke” was inappropriate)?  I don’t think Ms. Fitzgibbon had her thinking hat on that day.”

David Fieldman, a cross-cultural communications expert in Bejing, China:

“The NZ Authority, Anna Fitzgibbon, has lost her moral authority to pass judgment on anything.”

Nipple-Pinching Case

In another strange case, we posted that same day that a supervisor allegedly grabbed and squeezed his subordinate’s nipple, and took a towel and rubbed it on the employee’s crotch, according to the opinion of a federal appellate court.  The employee sued, claiming hostile work environment, and claimed that the supervisor “received some perverse sexual gratification” from these acts.

Both were male, and the Court dismissed the case.   We asked if the result might have been different if the victim had been female.

Link:  http://employmentdiscrimination.foxrothschild.com/2014/12/articles/sexual-harassment-1/supervisor-squeezing-subordinates-nipple-does-the-subordinates-gender-matter-under-title-vii/

Jim Ferguson, an attorney in Birmingham, Alabama, had this comment:

“Never thought to add a standard “Don’t pinch another employee’s nipple” provision to form employee handbook….but maybe we should…..”

 

 

 

 

 

An Illinois manufacturer of steel castings for the rail industry was just sued by the EEOC for allegedly violating the ADA.  The EEOC alleges that the company illegally asks job applicants if they “have a history of carpal tunnel syndrome and gives them a nerve conduction tests.”  Seehttp://www.eeoc.gov/eeoc/newsroom/release/11-20-14.cfm.

carpal tunnel : Carpal Tunnel Syndrome cartoon of a man with a sore wrist. Illustration

Although the EEOC press release does not clearly explain the company’s professed need for such questions or the nerve test, it may be assumed that the company certainly views these as job-related.

In any event, the EEOC said that “the most current relevant published medical literature does not support the use of such tests alone, or the use of prior medical history alone, to predict the development of carpal tunnel. … The result of these practices, according to the agency, was to deny employment opportunities to a class of people who had a history of carpal tunnel syndrome or who [the company] believed might develop that condition.”

Takeaway

As noted above, it is not clear to us whether there is a relationship between the job duties of this particular position and carpal tunnel syndrome.  But we may assume that the company feels that there is such a relationship, and that it is even possible that the EEOC may agree — the EEOC questioned the medical appropriateness or accuracy of the nerve test as a predictor and made no blanket statement that carpal tunnel syndrome does not prevent an employee from performing the relevant job duties with or without accommodations — as might be expected from the EEOC if that were the case.

In any event, under the ADA the EEOC has gone after employers who make stereotypical assumptions about disabilities and the ability to perform the job, i.e, the perception of disability.   Read our blog of yesterday.

Said an EEOC attorney, quite accurately summarizing the relevant provisions of the ADA:

“Employment decisions, including hiring decisions, must be based on a person’s ability to perform the job, not on stereotypes, assumptions or conjecture. An individualized assessment of the applicant’s present ability to safely perform the job duties is required if an employer screens out an applicant based on medical tests or exams in the hiring process.”

 

Another employer has settled a GINA class action brought by the EEOC – for $187,500.

The EEOC told a Practising Law Institute conference two years ago of a number of workplace issues which it planned to address, one of which was  targeting violations of the Genetic Information Nondiscrimination Act (“GINA”).  The law was new (2009), and few cases had been filed.

What Is “GINA?”

GINA makes it illegal to discriminate against employees or job applicants because of genetic information, which includes family medical history, and restricts employers from requesting, requiring or purchasing such information.

Under GINA, employers cannot, in the hiring process, request such genetic information and family medical history.

genetics : Orange cartoon character with loupe and dna. White background.

The First GINA Lawsuit

The first lawsuit ever filed by the EEOC alleging genetic discrimination under GINA was settled in May of 2013.  The EEOC alleged in that Oklahoma case that the employer refused to hire a woman who had been given an offer of a permanent position because tests it had conducted concluded that she had carpal tunnel syndrome (“CTS”). The company had sent her to an outside laboratory for a drug test and physical, and there she had to fill out a questionnaire disclosing the existence of numerous listed disorders in her family medical history.

According to the EEOC, “[t]he questionnaire asked about the existence of heart disease, hypertension, cancer, tuberculosis, diabetes, arthritis and ‘mental disorders’ in her family. [She] was then subjected to medical testing, from which the examiner concluded that further evaluation was needed to determine whether [she] suffered from carpal tunnel syndrome (CTS).”

Although her own doctor found that she did not have CTS, her offer was revoked because the company’s outside lab indicated otherwise.

genetics : Genetics sign on a white background. Part of a series.

GINA And The EEOC’s Strategic Enforcement Plan (“SEP”)

On May 17, 2013 we reported that in accordance with the priorities in its Strategic Enforcement Plan (“SEP”) (and its promise to the PLI conference) the EEOC filed a GINA class action against a Corning, N.Y. nursing and rehabilitation center, its first systemic lawsuit under GINA.

The EEOC alleged that the company conducted post-offer, pre-employment medical exams of applicants, and annual exams if the person was hired, and requested family medical history.  The case was settled for $110,400.

The New Settlement

The EEOC has just announced that it has settled another GINA class action brought against three California farm suppliers who required job applicants to take physical exams and fill out questionnaires which asked about medical conditions, and the applicants’ family medical histories.

One applicant was required to report disability-related information and family medical history which was unrelated to the job requirements, and ultimately refused hiring “due to his perceived disability.”

Takeaway

An EEOC attorney cautioned employers: “The law with respect to genetic information is relatively new, and this is one of the first cases resolved in litigation by the EEOC in this district.  … Employers need to familiarize themselves on the prohibitions with respect to pre-employment inquiries and maintaining the confidentiality of medical information.”

Another EEOC attorney summed up compliance with GINA:  “There are strict guidelines prohibiting inquiries into a job applicant’s medical condition and disability prior to hire. Even after hire, employers should avoid asking questions about an applicant’s medical condition if it is not job-related. With respect to genetic information – or family medical history – the law is even more restrictive in that most employers may never ask or acquire genetic information from applicants or employees.”