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.

 

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
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Copyright: halfpoint / 123RF Stock Photo

(Many thanks to Christina, for her gracious invitation to join the blog as a regular contributor! -Brian)

In the wake of controversy over efforts in North Carolina and other states to roll back legal protections for lesbian, gay, bisexual, and transgender (“LGBT”) people, Pennsylvania’s taking a different approach.

On April 7th, Pennsylvania Governor Tom Wolf issued Executive Order 2016-05, hailing it as an effort to combat discrimination.  The Commonwealth’s Department of General Services will now require contractors and grantees to agree not to discriminate in hiring, promotion, or other labor matters, or in the award of subcontracts or supply contracts.

Specifically, contractors and grantees will be required to agree not to discriminate on the basis of race, gender, creed, color, sexual orientation, or gender identity or expression.  The EO defines sexual orientation as heterosexuality, homosexuality, or bisexuality.  Gender identity or expression is defined as an individual’s gender-related identity, appearance, mannerisms, expression, or other gender-related characteristics, regardless of the individual’s sex at birth.

Notably, EO 2016-05 requires agency heads to recommend to the Secretary of General Services such sanctions “as may be appropriate” for entities that fail to comply with Commonwealth contracting programs.  Coupled with provisions that establish compliance, reporting, and audit systems, this EO suggests the Wolf administration intends to pursue enforcement through a broad variety of executive branch tools—with a particular eye toward addressing discrimination on the basis of sexual orientation or gender identity.

The Department of General Services will also be charged with ensuring that contractors and grantees have a written sexual harassment policy and that the contractor’s or grantee’s employees are aware of that policy.  These requirements are expressly made a condition of payment or funding—heightening the urgency for contractors and grantees to review their current policies and employee training programs on non-harassment and non-discrimination.

As a result of this EO, Commonwealth contractors/grantees and potential contractors/grantees should contact knowledgeable employment counsel to ensure compliance, as the Department of General Services begins to set up enforcement efforts.

Title VIIAs my colleague Christina Stoneburner posted yesterday and today, North Carolina recently enacted the Public Facilities Privacy & Security Act, which, among other similar state laws that continue cropping up (such as the recently vetoed religious exemption bill in Georgia), curtails protections based on Lesbian, Gay, Bisexual, and/or Transgender (LGBT) status.  These proposed laws have drawn significant media attention and are likely to continue expanding and developing in the foreseeable future.  However, despite these local exceptions, please remember that federal law may still apply.

The Equal Employment Opportunity Commission (EEOC) has taken an aggressive position on sexual orientation and gender identity under federal law, finding they are both protected under Title VII of the Civil Rights Act. Several federal court decisions have found the same, including for example, a recent decision by the federal district court in Arizona, which found with almost no analysis or fanfare, that a transgender prison guard is clearly entitled to protection under Title VII. Doe v. Arizona, No. CV-15-02399-PHX-DGC, 2016 WL 1089743 (D. Ariz. Mar. 21, 2016).  This decision illustrates just how far Title VII jurisprudence has evolved over the past decade.  Many district courts regularly hold that transgender and/or sexual orientation status is protected under federal anti-discrimination laws.

Previously such theories were not readily accepted, and even today remain debatable. Courts have had trouble in the past resolving the dissonance of Congress’ intent, which specifically excluded from the Civil Rights Act sexual orientation and gender identity as protected characteristics.  Indeed, Congress has repeatedly refused to expand Title VII to list sexual orientation and gender identity as protected categories through the Employment Non-Discrimination Act (ENDA).

However, the United States Supreme Court originally opened the door for these gender identity and sexual orientation status protections in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) and Oncale v. Sundowner Services, 523 U.S. 75 (1998).  To recap, very briefly, Hopkins involved a woman who was “too aggressive” and “not feminine enough,” and was ultimately passed over for partnership. The Court found that discrimination for failing to live up to gender stereotypes was actionable. Oncale similarly found same-sex harassment, in this case men harassing other men on an oil rig, was actionable because the harassment was based on expected gender norms.  Since then, the EEOC and some intermediate federal appellate courts have applied this reasoning and found that Title VII can protect transgender status and/or sexual orientation based on these gender norm theories. Macy v. Holder, App. No. 0120120821, 2012 WL 1435995 (EEOC Apr. 20, 2012); see also Glenn v. Brumby, 663. F.3d 1312 (11th Cir. 2011); Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004).

As a result, for prudent employers, the question may be moot even in states that may curtail transgender and/or sexual orientation protections.  A body of federal cases protecting against gender identity and/or sexual orientation status discrimination exists and continues to develop.  In addition, many state and local jurisdictions affirmatively provide such protections (e.g., California and New York).  Until further guidance is provided by the Supreme Court or Congress, it would be best to assume discrimination based on these protected characteristics remains prohibited nationwide.

Last week, the EEOC reached a $1.02 million settlement with Vail Run Community Resort Association, Inc. and its management company, Global Hospitality Resorts, Inc.  The settlement came after the EEOC sued based on its allegations that a housekeeping manager, Omar Quezada, repeatedly sexually harassed female subordinates.  The settlement will resolve the claims of 8 female employees.

This case certainly caught my eye because of the size of the settlement, but also because of the other obligations set forth in the consent settlement decree.  Pursuant to the settlement, there are some relatively minor “extras,” for example, giving favorable references and apology letters to the former employees.

The settlement also requires regular training on harassment and discrimination and, more unusually, the appointment of a monitor to assess compliance with the decree.  This is not a simple one-off check-in to see if the the companies are complying with the settlement.  Instead, the companies will have to pay an outside monitor for five years.

22207527_sUnder the settlement, the Spanish speaking monitor will insure that semi-annual training is conducted and will regularly be interviewing employees to determine if harassment or discrimination is occurring.  The monitor will also have to review any and all charges of discrimination during this time period.

If this were a Roadrunner cartoon, that outside monitor would be represented by a 1 ton weight hanging over Wile E. Coyote’s head.  Granted, there are rather serious allegations in the complaint and the supervisor in question has already been criminally convicted of unlawful sexual contact and felony extortion, so this is not your usual discrimination claim.

I think most employers would not relish having a monitor coming into the workplace and speaking with employees.  It may seem counter-intuitive but this is why you want to encourage employees to come to you with complaints, no matter how minor.  If you have an open door policy and then actually investigate the complaints that arise, you, hopefully, are dealing with much less severe situations and resolving them without the employee ever needing to get the EEOC involved.

 

18691875_sBikram Choudhury, founder of Bikram Yoga or hot yoga as it is colloquially referred, has been the center of several well-publicized sexual harassment lawsuit.  As the trial of one former legal adviser’s claim of sexual harassment is now progressing, it gains even more publicity, whether because of the juicy allegations of rape or schadenfreude or a little of both.

The allegations have been very salacious and, if true, paint a picture of a predatory and abusive man.  Law 360 reported that his wife testified on Wednesday.  The reports of her testimony are fairly shocking as she confirmed that she heard her husband swear at students and called female students prostitutes and bitches.  Certainly not what his defense attorneys wanted to hear.

The Choudhurys are also going through a divorce so it is tempting to attribute her testimony to a spouse seeking revenge.  However, her testimony was not a full-scale attack on her husband. Instead, although she had to admit that she had heard him use those words during teacher training sessions, she claimed that what he was doing was merely theater and all part of his act.  In other words, she tried to rationalize what he said by saying that he did not mean it.

This brings up an interesting point.  Under anti-discrimination laws, the alleged harasser’s intent is largely irrelevant.  A person does not have to mean to harass someone to be guilty of harassment.  This is a point that I make at every training session I do with employees and managers and one that seems to be the most surprising to people.

The way hostile work environments are defined under most anti-discrimination laws is that the conduct is based on membership in a protected class, that the conduct was severe or pervasive, and that the victim perceived and a reasonable person would perceive that a hostile work environment had been created.  In short, even where someone was joking or putting on an act, if they engage in conduct that could be considered harassment, it does not matter what they meant.

So, although I think Rajashree Choudhury might have been trying to excuse her husband’s behavior, saying he was joking is not likely to cut it.

 

4629528_sThe Illinois Human Rights Commission recently ruled against Hobby Lobby and found that it had discriminated against a transgendered employee by refusing to let her use the women’s restroom unless she could provide legal authority mandating that she be allowed to use that bathroom or produce medical documentation that she had surgically completed her transition from male to female.

The case is pretty interesting and should alert employers that they need to be sensitive when dealing with transgendered employees.  Our partner, Dori Stibolt, did a great post on this case for the South Florida Trial Practice blog describing the facts in more detail as well as her recommendations for best practices.  That post, Potty Problems at Hobby Lobby, can be accessed here.

28792171_sFirst, let us wish our fellow blogger, Tom Basta our hearty congratulations on the birth of his twins! They are adorable and likely to keep Tom very busy (and tired) these next few weeks.

Before the twins arrived, Tom and I had some discussions about how much time off he was going to take so that we could plan coverage for his absence.  These discussions and a recent webinar on pregnancy accommodation in which I was a co-presenter re-focused me on issues with paternity leave and maternity leave.

The fact is there are still some employers who think that maternity leave should be longer than paternity leave because, well, she was the one busy giving birth.  This may be true.  However, the fact is that employers need to be careful about such policies as they may be discriminatory against men.

If an employer’s policy is only to provide time for bonding with the baby after the birth, then maternity leave and paternity leave should be offered in equivalent amounts. In that case, there is no reason to distinguish between how much time a mother versus a father may spend bonding with the newborn.

For those employers who think that the mother deserves longer leave because she had to physically give birth and the father did not, such policies may be legal provided they are structured in the correct way.  Employers may lawfully give pregnant women longer leave amounts if a portion of the leave is considered disability leave related to actually giving birth and a portion is related to bonding with the newborn.  Again, in this case, employers should make sure that the bonding portion of the leave is the same as being offered to fathers.

38570848_sIn the vein of a shameless personal plug, I will be speaking as part of a panel in an upcoming Strafford live webinar, “Accommodating Pregnant Workers After Young v. UPS: Navigating New Obligations Absent Clear Court Guidance” scheduled for Wednesday, July 15, 1:00pm-2:30pm EDT.

Our panel will discuss how to reconcile the Court’s vague new standard with EEOC guidance and differing state laws regulating workplace accommodation of pregnancy and pregnancy-related conditions, and offer best practices for crafting workplace policies that avoid Pregnancy Discrimination Act violations.

We will review these and other key issues:

  • What factors might constitute legitimate, nondiscriminatory, nonpretextual reasons for denying an accommodation?
  • Under what circumstances must employers accommodate pregnant employees?
  • What steps should employers take when engaging in the “interactive process”.

I hope you’ll join us.

For more information or to register >

Or call 1-800-926-7926 ext. 10
Ask for Accommodating Pregnant Workers After Young v. UPS on 7/15/2015
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3324553_sIf half of my Facebook feed is correct, then the Justices are definitely going to rule in favor of gay marriage.  If the other half of my Facebook feed is correct, then the Justices are going to punt and claim it is a states’ rights issue.

There is not a lot of point in trying to guess which way they are going to go simply by what questions were asked at oral argument.  I can tell you from experience that I have been at motions before judges and was convinced that I was going to win based on how hard the judge was hammering my adversary, only to be disappointed when the decision did not go my client’s way.

Rather than try to dissect the oral argument and look for hidden clues as to how the Justices may rule, for anyone who is interested, you can listen to the argument on the first question here: http://www.supremecourt.gov/oral_arguments/audio/2014/14-556-q1 and on the second question here:  http://www.supremecourt.gov/oral_arguments/audio/2014/14-556-q2