Archive for the ‘Sex discrimination’ Category

SCOTUS Denies DOL Deference: Will it do the same for EEOC?

by HDlawblog Posted: Friday, 6/24/2016

On June 20, 2016, in Encino Motorcars, LLC v. Navarro, the Supreme Court decided not to defer to a US Department of Labor (DOL) rule that declared car dealerships’ service advisors eligible for overtime pay under the Fair Labor Standards Act (FLSA). Instead, in a 6-2 opinion, the Court found that the DOL did not provide a sufficient explanation as to why it departed from its long standing position that service advisors were ineligible for overtime under FLSA. The Court found the DOL’s scant rationale for its rule change impermissibly “conclusory” and sent the case back to the Ninth Circuit, leaving it to that court to determine, without deferring to the DOL rule, whether the FLSA overtime exemption covers service advisors.

As Justice Ginsburg noted in her concurring opinion, this ruling does not change the state of the law. Federal agencies have long been required to provide an “adequate reason” to justify a change in policy. However, the Court’s enforcement of that requirement serves as a potent reminder that it will not rubber stamp every new rule or interpretation an agency passes down.

The Court’s willingness to defer to an agency may very well become the central issue in the continually escalating dispute over whether Title VII and Title IX’s bar on sex discrimination includes discrimination on the basis of gender identity and sexual orientation.

While Title VII protects employees from discrimination and Title IX protects students, the laws are so similar that courts often look to rulings on one to help interpret the other. For that reason, although the highest appellate court decision on the gender identity issue, G.G. v. Gloucester County School Board, is a Title IX case, its eventual resolution may provide guidance as to the validity of the EEOC’s recent positions that discrimination on the basis of sexual orientation, which it has alleged in two recent suits, and on the basis of gender identity, a position the EEOC first enforced back in 2012, amounts to impermissible sex discrimination under Title VII.

Gloucester County School Board indirectly supports the EEOC’s positions. Applying the Auer doctrine, which instructs courts to give deference to an agency’s interpretation of its own ambiguous regulations unless the interpretation is unreasonable, the Fourth Circuit Court of Appeals determined that it owed the US Department of Education’s (DOE) interpretation of Title IX “controlling weight.” The DOE’s interpretation defined sex discrimination as inclusive of discrimination on the basis of gender identity, which contradicted the School Board’s policy of separating bathrooms by birth sex.

The School Board has announced its intention to appeal the Fourth Circuit’s decision to the Supreme Court. How the Court would rule is far from obvious: Though the Encino decision suggests the Supreme Court is not always amenable to deferring to an agency, the Court did recently pass up the opportunity to hear a case in which it could have overturned Auer. In the end, the Court may choose not to rule on an issue as decisive as the expansiveness of sex discrimination under Title VII and IX until it has regained a ninth justice. In the interim, expect the EEOC to continue enforcing its own interpretation.

For more information, contact an attorney at Harmon & Davies, P.C.

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Posted in FLSA, Labor & Employment, Sex discrimination, Sexual orientation discrimination | Comments Off on SCOTUS Denies DOL Deference: Will it do the same for EEOC?

Harassment on the Worksite; Can the General Contractor be Held Liable?

by HDlawblog Posted: Friday, 4/17/2015

The U.S. District Court for the Eastern District of Virginia recently held that a laborer hired by a subcontractor cannot sue the construction project’s general contractor for same-sex harassment. In the lawsuit, Matthew Allen alleged that an unidentified man from another company made sexual advances towards him. After reporting the incident to the general contractor, D.A. Foster Company, Inc., the man who allegedly made the advances was ejected from the worksite. Allen alleged, however, that he was continually harassed by coworkers who had heard about the incident. Allen filed suit against the general contractor, and Barnes Excavating, the subcontractor, alleging, among other counts, discrimination, hostile work environment, retaliation, and retaliatory termination in violation of Title VII of the Civil Rights Act.

The court held that claims against an employer under Title VII may only be brought by an employee, not an independent contractor, against an employer. To determine whether the claimant is an employee or independent contractor, courts weigh several factors of the conventional master-servant relationship. While no one factor is determinative, several factors are considered, including: the workers skill required; who provides the tools required; location of the work; duration of the relationship; the hiring party’s right to assign additional projects to the hired party; the extent of the hired party’s discretion over working time and hours; the method of payment; and whether the work is part of the regular business activities of the hiring party.

In the case at hand, D.A. Foster was the general contractor who subcontracted excavating work to Barnes. Barnes directly hired Allen as a laborer and assigned Allen to work on the project supervised by D.A. Foster. Although D.A. Foster provided some guidance and training for the project, and the company does regularly perform work in this industry, the level of control over Allen did not rise to the extent necessary to establish an employee-employer relationship. The court held that, with respect to D.A. Foster, Allen was an independent contractor. Most tools were provided to Allen by Barnes Excavating, not Foster. Allen worked under the direct supervision of and was paid by Barnes. The court found that Allen could not reasonably believe that he was an employee of D.A. Foster. Thus, the court granted summary judgment in favor of D.A. Foster.

While in the case at hand the general contractor was not subject to liability on the claim, employers still need to be weary of the current trend to try towards expanding the definition of who is the “employer.” Particular attention should continue to be paid to the IRS independent contractor test and, in particular, the most recent movement of the NLRB to redefine joint-employer status. The consequences of misclassifying an employee as an independent contractor can be significant. The case should also serve as a reminder to all contractors that they need to take steps to make sure that their jobsites are free from any kind of harassment.

This article is authored by attorney Lori L. Buntman and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice.  Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

 

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Posted in Construction, Disability Discrimination, Sex discrimination | Comments Off on Harassment on the Worksite; Can the General Contractor be Held Liable?

Merely Undergoing IVF Treatment Does Not Insulate Employee from Termination

by HDlawblog Posted: Friday, 7/5/2013

A New York waitress who was fired shortly after telling her managers that she started in-vitro fertilization did not establish sex discrimination claims because she failed to show that the stated reason for her discharge, which the company claimed was her poor performance, was pretextual.

In the case of Govori v. Goat Fifty LLC, the Second Circuit rejected the waitress’s contention that the close timing between her revelation that she was undergoing IVF treatment and her discharge was enough to rebut the restaurant’s legitimate nondiscriminatory reason for firing her.  The restaurant claimed that the waitress had a history of poor performance that culminated when she allegedly yelled at a customer on her last day of work.  Additionally, the waitress’s managers were already well aware that the waitress wished to become pregnant and was contemplating IVF before she announced that she had started IVF treatment.  In fact, her managers allegedly supported the waitress in her desire to become pregnant.  Thus, the court concluded that the waitress’s announcement that she was starting treatment was at most “her commencement of but one more step toward her previously announced but still uncertain goal of conceiving a child.”

Although the waitress alleged that her manager told her that she had chosen a different “path” during the telephone call in which the manager terminated the waitress, and that the different “path” referred to the “mommy track” or “mommy path,” the court found that the use of the word “path” could not plausibly be construed as a reference to the “mommy track”.  Rather the court reasoned that the comment about choosing another path was the sort of comment a friend might plausibly use as an attempt to soften the blow of firing an employee with whom she was close.

Because the court found that the waitress failed to refute that her poor performance was the cause of her termination, the court declined to address whether the Pregnancy Discrimination Act (“PDA”) covers employees who allegedly are fired for undergoing IVF treatment.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

 

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Posted in Labor & Employment, Pregnancy Discrimination, Sex discrimination | No Comments »

“That Woman” Plumber Has a Triable Hostile Work Environment Claim

by HDlawblog Posted: Friday, 6/14/2013

In the recent case of Hall v. Chicago the Seven Circuit found that a female plumber, (sometimes referred to as “Hall” by the author of this blog and allegedly referred to as “that woman” by her supervisor), has a triable hostile work environment claim under Title VII of the Civil Rights Act of 1964 based on incidents which viewed in isolation may seem relatively minor, but when viewed in their totality the court deemed sufficiently pervasive to make out a hostile work environment claim.

Hall or “that woman” was a female plumber for the City of Chicago and the only woman, aside from a secretary, in her division.  Hall claimed that that her male supervisor isolated her from coworkers, assigned her menial work, and subjected her to physically aggressive comments.  Specifically, she alleged that she was treated as the division pariah, undeserving of human interaction, that she was given menial tasks such as alphabetizing and sorting the same files and watching videotape footage that had already been reviewed.  The allegedly aggressive comments included her boss saying that he: “ought to slap that woman sitting out there,” “I could slap that woman and get a promotion” and “I ought to go postal on that woman.”

At the trial level, the court granted summary judgment in favor of the City of Chicago, but on appeal, the Seventh Circuit found that although Hall’s claims would not individually be considered severe or pervasive harassment under Title VII, a reasonable jury could view them together as creating a hostile work environment.  The appeals court also found that Hall established a triable factual dispute about whether her supervisor’s alleged harassment was based on her sex, but the court admitted this was a close call.

Interestingly, the court acknowledged that while Hall’s work may have been “unpleasant, boring, and unnecessary, that can be said of much work and there is no right to enjoyable work or to communicate with coworkers.  However, the court found that when forced to look at the totality of the circumstances, incidents which viewed in isolation as relatively minor, that consistently or systematically burden women throughout their employment are sufficiently pervasive to make out a hostile work environment claim.  The court found that in Hall’s case, her supervisor not only assigned her menial work, but he purportedly isolated her from co-workers, subjected her to verbal outburst, and physically bumped her on occasion.

As for Hall’s claim that the harassment was sex based, the court said it was a close call.  The court referenced the supervisor’s alleged comments and noted that rarely does one say that they are going to “slap a male” and to the extent that ambiguity remains, the supervisor attached “that woman” to the end of the sentence permitting a juror to conclude Hall’s gender was one factor leading to the outburst.  However, the court commented that not all sex-specific comments are evidenced of animus based on sex.  “Where a comment crosses the line from gender specific to evidencing gender animus is blurry and depends on factual context.”  Although the court viewed the supervisor’s use of “that woman” as indistinct from the use of “she,” and therefore not evidence of gender-based animus, the court felt that a jury could conclude that the comments evidenced gender animus.

The takeaway:  train supervisors to avoid phrases such as “that woman” which may have undertones of discrimination.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

 

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Ballers & Shot Callers: Court Says Female Basketball Referee May Pursue Sex Discrimination Case Alleging She Was Excluded From Officiating Boys’ Games

by HDlawblog Posted: Friday, 4/26/2013

Several weeks ago, in the case of Covington v. Int’l Ass’n of Approved Basketball Officials, the Third Circuit held that a female high school basketball referee in New Jersey may pursue a Title VII sex discrimination claim against three defendants related to her alleged exclusion from officiating boys’ basketball games.

In short, the female referee sued seven defendants in federal court, including Hamilton Township School District, the New Jersey State Interscholastic Athletic Association (NJSIAA), and Board 193 of the International Association of Approved Basketball Officials, alleging that the defendants engaged in unlawful sex discrimination by excluding her from officiating boys’ high school varsity basketball games.   Although she had refereed for more than 10 years, the referee claimed that she had not been assigned to officiate boys’ regular season games because of Board 193’s policy of discriminating against female officials.  Although no defendant admitted to having a policy of excluding women from officiating boys’ games, the referee alleged a pattern and practice of sex discrimination

The U.S. District Court of the District of New Jersey dismissed the referee’s complaint on the ground that she had not adequately alleged facts sufficient to establish the employer-employee relationship necessary to hold any of the named defendants liable under Title VII.  The referee appealed this dismissal to the Third Circuit where the Third Circuit reversed the lower court’s decision and chastised it for not giving more serious regard to a federal district court opinion in Pennsylvania that had upheld a sex discrimination jury verdict for a female basketball referee who had been excluded from officiating boys’ games under similar circumstances.  In other words, there was existing case law that the lower court should have paid closer attention to.

Interestingly, the defendants unsuccessfully argued that they were not covered by Title VII on the theory that they could not be considered employers.  The Third Circuit rejected this argument finding that the school district and the athletic association could be fairly identified as the referee’s employers under Title VII.  The court also found that the referee plausibly alleged that Board 193 could be liable as an “employment agency” for supplying high school basketball referees to the school district.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

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Employer’s Acknowledgment of the Difficulties of Juggling a Career and Motherhood Might Land it in Hot Water

by HDlawblog Posted: Thursday, 4/25/2013

In the case of Quinlan v. Elysian Hotel Co., the U.S. District Court for the Northern District of Illinois recently held that a former public relations director at a Chicago hotel who was fired after returning from maternity leave can pursue a sex discrimination claim under Title VII of the 1964 Civil Rights Act based on comments allegedly made during her pregnancy.  The comments allegedly included a statement made by a female decisionmaker regarding it being difficult to balance work and be a “good mother.”

The court found that the alleged comment about it being difficult to balance work and be a good mother coupled with another comment about the employee being able to return to the public relations field “later in life” sufficient enough circumstantial evidence for a jury to find that discrimination may have influenced the hotel’s decision to fire the former employee.  In addition to the aforementioned comments, the plaintiff also alleged that during a shared cab ride another decisionmaker at the hotel told her that it was not a big deal if she did not want to return to work after her baby was born and that staying at home was a sacrifice she should make for her family.  Allegedly, that decisionmaker then proceeded to tell the plaintiff about the childcare difficulties that he and his wife faced as they started their own family.

After these comments were allegedly made, the hotel encountered financial difficulties and examined what positions it could eliminate.  It was suggested that the plaintiff’s position was not needed and her position was eliminated, which resulted in her termination.  Thereafter, the employee sued her former employer and the hotel moved to have the lawsuit dismissed through a summary judgment motion.

In denying the hotel’s summary judgment motion, the court found that although many of the alleged discriminatory comments were made during the former employee’s pregnancy, her claim really fell under the umbrella of sex/gender discrimination based on her status as a new mother.  In other words, the court said that the plaintiff seemed to be arguing that she was fired due to her supervisor’s illegal gender-stereotyping and assumption that women who are new mothers are not able to remain committed to their work and are better off staying at home with a young child.  The court found that although much time elapsed between the allegedly biased comments and the employment decision, thereby reducing the probative force of the remarks, a jury might find it acceptable, given the time lag for time off to give birth and potentially further maternity leave.  In any event, the court found that the former employee presented facts upon which a reasonable jury might find that the hotel discriminated against her based upon its view that new mothers cannot (or are less able to) do the job.

This case serves as a good example how employers should be careful ever careful not to make comments that may later be viewed as discriminatory and to train their supervisors/decisionmakers to avoid such pitfalls.  The employment and labor law attorneys at Harmon & Davies are here to assist employers with such training.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

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Posted in Labor & Employment, Pregnancy Discrimination, Sex discrimination | No Comments »