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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.

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.

Recently, the United States Court of Appeals for the Seventh Circuit issued an opinion with significant employment law implications.  As you might recall, a panel of the Seventh Circuit issued a split 2-1 decision a few months ago, holding that Title VII’s prohibitions against sex discrimination in employment did not extend to protect employees on the basis of their sexual orientation.  The full Seventh Circuit then heard oral argument about whether the panel decision was correctly decided in the case, Hively v. Ivy Tech Community College.

Last week, the Seventh Circuit sitting en banc reversed the panel’s decision, holding that Title VII’s provisions that prohibit discrimination in employment on the basis of sex necessarily also prohibit employment discrimination on the basis of sexual orientation.  This decision is a binding interpretation of federal law for employers with employees within the Seventh Circuit, which includes Illinois, Indiana, and Wisconsin.  This decision means that employers in those states should immediately review their policies, procedures, and training regimens to ensure compliance.  However, employers outside of those states aren’t necessarily “off the hook” and should strongly consider reviewing their own policies in light of this decision.

To learn more about what this decision could mean for your workplace, check out our recent Labor & Employment Alert on the case.

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.

Earlier this month, the US Equal Employment Opportunity Commission (EEOC) announced a proposal to update its guidance on employment discrimination based on national origin.   The proposal, which marks the EEOC’s first update to this particular guidance in 14 years, contains important information for employers and is available for public comment until July 5, 2016.

What’s National Origin?

Federal regulations define national origin discrimination as including employment discrimination that occurs “because of an individual’s, or his or her ancestor’s place of origin; or because an individual has the physical, cultural or linguistic characteristics of a national origin group.”  29 C.F.R. § 1606.1.

The regulations note that the EEOC defines national origin discrimination broadly, and that the EEOC will pay particular attention to charges alleging discrimination based on national origin considerations,  including:

  • marriage to or association with persons of a national origin group
  • membership in, or association with, an organization identified with or seeking to promote the interests of national origin groups
  • attendance or participation in schools, churches, temples or mosques, generally used by persons of a national origin group, and
  • the individual’s name or spouse’s name being associated with a national origin group.

So What Does This Mean for the Workplace?

At the outset, it’s important to remember that EEOC guidance is not necessarily binding on courts.  In addition,  since this guidance has not yet been finalized, revisions remain a possibility.  That said, the proposed guidance provides an illuminating look into how the EEOC approaches enforcement on this issue.

Some noteworthy issues raised in the proposed guidance include:

  • Accents.  Employers tread in dangerous waters if they use accents as a basis for making an adverse employment decision, as accents and national origin are often linked.  While employment decisions may legitimately be based on accents, the EEOC proposed guidance states that this will require the employer to show that “effective spoken communication in English is required to perform job duties and the individual’s accent materially interferes with his/her ability to communicate in spoken English.”
  • Word-of-Mouth Recruiting.  Word-of-mouth recruiting may violate Title VII if the employer’s actions have the purpose or effect of discriminating on the basis of national origin.
  • Social Security Number (SSN) Screening.  Employers who have a policy or practice of screening out job candidates or new hires who do not have a social security number may constitute national origin discrimination, if work-authorized but newly arrived immigrants and new lawful permanent residents of a particular ethnicity or national origin are disproportionately affected.
  • Customer Preference.  Employers aren’t permitted to use the preferences of customers, coworkers, or clients as the basis for discriminating in violation of Title VII.  The EEOC notes that company “look” or “image” policies, under certain circumstances, can act as a proxy for discriminatory customer preferences; adverse employment actions taken according to such policies can serve as the basis of national origin discrimination.
  • Job Segregation.  An employer may not use national origin as the basis for assigning (or not assigning) individuals to specific positions, locations, or geographic areas; nor may an employer physically isolate, deny promotions to, or otherwise segregate individuals into certain roles due to their national origin.
  • Perceived National Origin.  It’s important to note that employer actions may not have the purpose or effect of discriminating on the basis of national origin whether that is an individual’s real or perceived national origin.
  • English-Only Rules.  Work rules or practices requiring the use of English may be national origin discrimination as a person’s primary language is often intertwined with cultural/ethnic identity.  The EEOC operates under the presumption that rules requiring workers to speak English at all times (including during lunch, breaks, and other personal time while on employer premises) violate Title VII.

These items are just a sampling of the information contained in the EEOC’s proposed guidance update.  The full document is available here.

 

 

23337822_sToday the U.S. Supreme Court reversed a decision by the Tenth Circuit Court of Appeals that had previously held that Abercrombie could not be held liable for not accommodating an applicant who wore a head scarf to her interview but never mentioned her Muslim faith.  The Tenth Circuit had accepted Abercrombie’s argument that the mere fact that she wore the hijab to the interview did not mean it was aware that she needed an accommodation of Abercrombie’s “Look Policy.”

The Tenth Circuit had held that where an accommodation is requested for religious reasons, an employer must not only be aware of the need for an accommodation but also that it was due to a particular religious faith.

In today’s decision in EEOC v. Abercrombie & Fitch Stores, Inc., the Supreme Court noted that knowledge of the need for an accommodation is not necessary but simply must demonstrate that an applicant’s need for an accommodation was a motivating factor in the employer’s decision.  This may seem confusing without reading the opinion in full.

I mean, how can an accommodation be a motivating factor if the employer did not know of the need for an accommodation?

Once you dig into the Court’s reasoning, the decision is actually more common sense than it appears on its face.  In short, whether an employee knows of a need for accommodation or simply assumes that one might be necessary, if the desire to avoid accommodating that practice is a motivating factor in not hiring the applicant, then that is a violation of Title VII.

To understand the Court’s decision, a brief review of the facts is helpful.   Samantha Elauf applied for a position with Abercrombie.  At the interview, Ms. Elauf wore a head scarf.  There was no discussion during the interview about the head scarf or whether she wore it for religious reasons.  After the interview, the manager who interviewed her, Heather Cooke, was concerned that the head scarf violated Abercrombie’s “Look Policy” which prohibited the wearing of caps.  When Ms. Cooke consulted with the District Manager, she advised that she thought that Ms. Elauf wore the head scarf for religious reasons.  The District Manager advised that the head scarf would conflict with the Look Policy and Ms. Elauf was then rejected for the position.

In its analysis the Supreme Court noted that the disparate treatment provision of Title VII forbids employers from failing to hire an applicant because of religion. Thus, the provision prevents religion from being a motivating factor in an employer’s decision not to hire an applicant.

When viewed in this light, today’s decision is not so different from cases interpreting the disability portions of Title VII.  For example, if an applicant who came into an interview for a position involving physical labor had a limp, the employer assumed because of the limp that the employee would need accommodations, and the employer did not want to create light duty positions so it rejected the applicant, it is not hard to see how this would be disability discrimination due to the assumption alone.

In this case, Abercrombie assumed (correctly) that Ms. Elauf wore the head scarf for religious reasons and as such would need an accommodation from its Look Policy.  Since Abercrombie’s sole reason for not hiring her was that it did not want to create an exception to the Look Policy, Ms. Elauf could show that her need for an accommodation was a motivating factor in the decision not to hire her even though she had never specifically asked for an accommodation.

Today’s decision is not so broad that it means that not having knowledge of a need for an accommodation may never be a defense.  If the employer has neither knowledge of nor an assumption that a religious practice requires an accommodation, an employer may still be able to raise a defense to a failure to accommodate claim.  For example, if an employee comes to a manager and simply requests time off without giving a reason why, it may be possible to argue that the cannot show that the denial of the time off was on account of his or her religion.

Employers should keep this decision in the backs of their minds when evaluating such requests.  If, for example, an employee is telling you that he or she cannot work any Friday after 4 pm, then a prudent employer should at least ask why before denying the request.  It is possible that the employee, who is Jewish, is making the request so that he or she can observe the Sabbath, or that the employee has a second part-time job that is scheduled for every Friday evening.  In the first scenario, the employer will have to evaluate whether it can reasonably accommodate the employer.

8081950_sSometimes when I counsel employers they ask why they cannot just take an ostrich approach, i.e., stick their head in the sand and not go looking for issues.  The problem with that approach is that, given my example above, it is not hard to imagine that an employee would claim that the manager was aware that he or she was Jewish and thus, should have assumed that the request was related to an observance of the Sabbath.  That then becomes a factual issue that is likely not going to get resolved on summary judgment.