Posts Tagged ‘Title VII of the 1964 Civil Rights Act’

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?

EEOC Sues 2 Private Employers in Unprecedented Sexual Orientation Discrimination Lawsuits

by HDlawblog Posted: Thursday, 3/3/2016

On March 1, 2016, the Equal Employment Opportunity Commission (EEOC) took the long predicted, but unprecedented, step of filing complaints in federal courts against two private companies alleging that sexual orientation discrimination is a violation of the prohibition against sex discrimination in Title VII of the Civil Rights Act of 1964. For the last several years, the EEOC has been accepting and investigating such allegations involving private employers and last year ruled in a case involving a federal government employee that sexual orientation discrimination was “inherently” a form of sex discrimination under Title VII.  To date, no federal appeals court has reached this conclusion and five Courts of Appeal have flatly rejected extending Title VII in this fashion.

To put this issue in a broader context, on July 21, 2014, President Obama issued Executive Order 13672 which amended Executive Order 11246 (issued in 1965) to include prohibitions against discrimination based on sexual orientation or gender identity, but the Executive Order only governs certain federal contractors. From 1994 through 2014, a version of the Employment Non-Discrimination Act (ENDA) was introduced in every session of Congress except for the 109th Congress (2004-2005.)  Early forms of the legislation would have only prohibited discrimination by private employers of 15 or more employees based on sexual orientation, but beginning in 2007, the proposed legislation would have also prohibited discrimination based upon gender identity.  Each of these versions of the bill included a religious exemption provision.  It was thought that with the election of President Obama in 2008, together with Democrat control of the House and Senate that ENDA would become law in 2009 or 2010, but it seemingly got lost in a crowded legislative calendar.  ENDA was not introduced in the current session of Congress.  Rather, with broad backing from the LGBT community, a more comprehensive Equality Act was proposed which would prohibit discrimination based on sexual orientation and gender identity in employment, public accommodations, housing and a variety of other areas.  Given the current makeup of Congress, its prospects of passage are not favorable.

Critics of the EEOC’s recent action argue that it is another example of the Obama administration’s willingness to use the administrative process to revise existing law. Advocates for the LGBT community argue, however, that the new lawsuits are a natural extension of the EEOC’s efforts to provide broad protection under Title VII.  Persons on both sides of the issue will be carefully following the actions at the district court level.

The case against Scott Medical Center was filed in the Western District of Pennsylvania and alleges that a gay male telemarketing representative was subjected to a sexually hostile work environment based upon numerous offensive comments directed at him by his male supervisor pertaining to his sex life and other personal matters. The employee’s resignation in the face of this conduct is alleged to be a constructive discharge.  The case appears to have been assigned to Judge Cathy Bisson, who was nominated to the Court in 2010 by President Obama.  The other case, which was filed in Maryland, alleges that Pallet Companies d/b/a IFCO Systems violated Title VII by its treatment of a lesbian forklift operator which included comments directed to her by her male supervisor such as, “I want to turn you back into a woman” and “you would look good in a dress.”  She was terminated a few days after registering complaints about this behavior to management and on an employee hotline.  The EEOC alleges that this termination was unlawful.  This case appears to have been assigned to Judge Richard D. Bennett, who was nominated to the Court by President George W. Bush in 2003.  In both cases, in addition to the usual remedies, the EEOC is seeking that punitive damages be awarded to the complainants.  It will be very interesting to watch how the courts handle these cases.

From a practice perspective, however, it is highly recommended that employers get ahead of this issue and modify, if necessary, their existing Discrimination and Harassment policies to include broad prohibitions against discrimination that include sexual orientation and gender identity as protected categories. The attorneys at Harmon & Davies, P.C. are available to discuss these matters with you in further detail.

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Posted in Labor & Employment | Comments Off on EEOC Sues 2 Private Employers in Unprecedented Sexual Orientation Discrimination Lawsuits

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?

Don’t Make Fun of the Guy Wearing Pastel Shirts

by HDlawblog Posted: Friday, 8/2/2013

I can’t tell you how many times I’ve heard other guys give a male wearing a pastel shirt a hard time about his “feminine” color choice, but employers might be more apt to snuff out such joking after a recent decision by the Eastern District of California where the court held that, among other things, that calling a male worker’s pastel shirts “girly” was evidence of sex stereotyping.  Although this decision was rendered in California where the notoriously liberal Ninth Circuit has already recognized harassment and discrimination rooted in sex stereotyping as an actionable Title VII claim, the court’s message should cause all employers to worry about whether they are doing enough to create a work environment free of sex-based harassment. 

Indeed, in the matter of Felix v. Cal. Dep’t of Developmental Servs., two special investigators with California’s Department of Developmental Services alleged that they were subjected to years of coworkers’ derogatory name calling and pranks.  The plaintiffs sued under Title VII of the 1964 Civil Rights Act and California’s Fair Employment and Housing Act.  The alleged harassment consisted of, among other things: (1) coworkers joking that one of the plaintiffs dressed in “girly” clothes because he wore pink, lavender, and soft blue colored shirts; (2) coworkers making references to one of the plaintiffs and a male coworker having nipple rings and piercings on their penises that were chained together; and (3)   coworkers sending one of the plaintiffs yellow balloons with a card claiming that he had a secret admirer, which was intended to imply that he was a homosexual because an openly gay male co-worker’s favorite color was yellow.    

The court found that calling a male employee’s clothes “girly” and implying that he had a sexual relationship with male co-workers demonstrated plausible sex-based harassment under Title VII and the FEHA.  This decision should cause employers to question whether they are doing enough to eliminate potential harassment claims from the workplace.  The attorneys at Harmon & Davies are here to assist employers with such matters. 

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 Sexual Harassment | No Comments »

School District in Hot Water for Following State Law that Had Disparate Impact

by HDlawblog Posted: Monday, 4/29/2013

The recent case of Waldon v. Cincinnati Public Schools, before the Southern District of Ohio, exemplifies the frustration many employers might be feeling over the use of criminal background checks.  For those not in the know, criminal background checks spawn a host of issues.  For example, if you don’t use the checks, will you be sued for negligent hiring?; or if you use the criminal background checks will you be sued for discrimination? It’s enough to make your head spin, and as evidenced below, bright-line rules regarding the use of criminal background checks, simply don’t work.

In the case of Waldon, the Ohio legislature amended a state law to require criminal background checks of all current public school employees, including those not responsible for the care, custody, or control of children and to terminate any employee convicted of any of a certain crimes, no matter how far in the past the crime may have occurred and no matter how little the crime related to the present readiness of the particular employee to provide services safely and with excellence.

In seemingly earnest compliance with the state law, the Cincinnati Public Schools terminated ten employees with criminal convictions based on the state law mandate.  Nine of the ten employees were African American.  Two of the fired employees, Waldon and Britton, sued the school district alleging that the state law had a racially discriminatory impact on African Americans in violation of  Title VII of the 1964 Civil Rights Act and Ohio state law.

Undoubtedly, the broad language of the state law that mandated the termination of employees (even those who had no contact with children) for certain convictions no matter how far in the past and regardless of how the crime related to the employee’s ability to perform his/or her job, would produce absurd results.  And it did.  For example, Walton, one of the terminated employees, had been found guilty of felonious assault in 1977 and incarcerated for two years before the school district’s civil service office wrote in support of his parole and offered him employment in 1980.  For nearly 30 years Waldon worked without incident for the school district before he was terminated from his position as a systems monitor based on his decades old conviction.  Moreover, during his tenure with the school district, he never had contact with children.  Britton, the other plaintiff, was convicted in 1983 for acting as a go-between in the purchase and sale of $5 worth of marijuana.  Despite this conviction, she had worked for the school district as an instructional assistant for 18 years without incident before she was terminated based on her decades old and relatively minor conviction.

In Waldon, the court found that the plaintiffs presented sufficient facts to support their disparate impact claims under Title VII and Ohio state law because the state law disproportionately affected African Americans.  Moreover, the school district failed to demonstrate a business necessity for following the state law requiring the discharge of employees of convicted of certain crimes.

Although the school district argued that the court should dismiss the complaint because the school district merely followed state law in firing Waldon and Britton, in a harsh statement for employers, the court stated that compliance with state law is no defense because a violation is a violation.  A state law cannot trump the purpose of Title VII.

In the Waldon case, it mattered little that the school district was just following the state law and did not intend to discriminate because intent is irrelevant in disparate impact cases where the courts look at whether facially neutral employment practices have a disproportionately negative effect on a certain protected group that cannot be justified by “business necessity.”  In this case, the school district could not show that the plaintiffs posed an obvious risk to school children based on their past convictions and therefore could not establish a “business necessity.”

The court unsympathetically concluded that once the school district saw that nine of the ten employees being fired were African American, it was not compelled to follow the state law because Title VII trumps state mandates, and that the school district should have raised questions with the state board of education regarding the disparity.

This is a harsh case for employers because the court makes it clear that employers cannot blindly rely on state law mandates regarding the use of criminal background checks.  Rather, employers must evaluate whether seemingly neutral state law mandates have a discriminatory impact.  The employment and labor law attorneys at Harmon & Davies, P.C. are here to navigate employers through these sometimes treacherous waters.

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 »

Appellate Court Says Four Black Female Carpenters May Proceed with Sex Bias and Retaliation Claims against Carpenters & Joiners Union

by HDlawblog Posted: Monday, 2/18/2013

In the case of Butt v. Carpenters & Joiners of Am., the Third Circuit recently held that the U.S. District Court for the Eastern District of Pennsylvania wrongly dismissed the claims of four black female carpenters who claimed that the Carpenters and Joiners of America discriminated and retaliated against them in making job referrals.

 

The four female carpenters asserted sex discrimination claims under Title VII of the 1964 Civil Rights Act and race discrimination claims under the Civil Rights Act of 1866 against the union, its business manager, and its business agent.  The plaintiffs also asserted Title VII and Section 1981 retaliation claims and at least one of the plaintiffs asserted race and sex bias claims under the Pennsylvania Human Relations Act.

 

The Third Circuit found that the lower court failed to properly consider certain factual issues and therefore the dismissal was improper.  One of the key facts had to do with the union’s agent allegedly telling one of the plaintiffs that “his people” were still out of work when she inquired about work.  The plaintiff interpreted the phrase “his people” to mean white men.  The lower court interpreted this statement to mean that the union’s agent did not identify with black female carpenters.  However, the plaintiff’s interpretation of the comment was the only interpretation that the appellate court could find on the record.  Thus, the appellate court found that the comment was enough to create a factual issue for trial on the discrimination claims.

 

As for the retaliation claims, the lower court took too narrow of a view of retaliation by focusing on retaliatory actions that resulted in a clear change in employment status.  According to the appellate court, the lower could should have also considered acts meant to keep workers from making discrimination complaints.  Here, the plaintiffs claimed that their reduction in hours was in retaliation for their direct complaints to the union, their EEOC discrimination charge against the union and their testimony before a Philadelphia advisory commission.  After two of the plaintiffs testified before the commission, the union’s agent sent the media a letter stating that two women had been laid off in the past because of poor performance.  Although the record contained little information about the letter that was sent to the press, the appellate court held that such action arguably could have sufficed as retaliatory action under the law and therefore the letter raised an issue of fact for trial.

 

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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Employers, Check the Language of Your Anti-Harassment Policies

by HDlawblog Posted: Tuesday, 11/13/2012

In a recent Equal Employment Opportunity Commission (“EEOC”) suit brought against a construction contractor, the EEOC established that a construction site where three black employees worked constituted an objectively hostile work environment under Title VII of the 1964 Civil Rights Act (“Title VII”) based upon evidence that: (1)  the employer was aware that a white supervisor regularly used racial slurs at the construction site; (2) the portable toilets at the site were covered with racist graffiti; and (3) the human resources manager also used a racial slur during a safety meeting.

In EEOC v. Holmes & Holmes Indus. Inc., a federal court found that no reasonable jury could conclude that a reasonable African-American would not be offended, even in a blue collar setting, by the type of conduct at issue in the case.  Nonetheless, even though the court found the at-issue conduct sufficient enough to establish an objectively hostile work environment, the court held that the case still has to be submitted to a jury to determine if the three black employees found the workplace subjectively, or in other words, personally offensive.  Indeed, in order to recover, the employees will have to prove that they personally viewed the conduct as offensive.

It appears likely that a jury will find that the employees found the conduct subjectively offensive because a significant amount of evidence shows that the employees were offended.  The employees complained to management about the alleged offensive speech and on at least one occasion, one of the employees stormed out of the room after such language was used.  However, there is a possibility that a jury might find otherwise because there is some evidence to suggest that the employees did not seem bothered by the conduct.  For example, two of the employees socialized with the allegedly offending supervisor outside of work, which evidence the employer might use to show that the employees were not subjectively offended by the supervisor’s conduct.

However, when the employer tried to use such evidence to argue that the employees could not prove an objectively hostile work environment because the employees were “friends” with the offending supervisor, the court rejected the argument stating that the test for determining whether an environment is objectively hostile is whether a reasonable person would have found the environment objectively hostile.  The court noted that there is no case law supporting the position that a supervisor’s belief that he was friends with his subordinates allows him or the employer to avoid liability for creating a hostile environment.

In finding that the employer created an objectively hostile work environment, the court pointed out flaws in the company’s anti-harassment policy and the lack of evidence showing that the employer had appropriately disciplined the offending supervisor after receiving complaints from the employees.  Although the company had a written anti-harassment policy, it did not specifically mention racial harassment or include an alternative avenue for complaint if a supervisor is the alleged harasser.  Additionally, the court noted that the company did not provide employee training on its anti-harassment policy during the relevant time period.

The court also noted that if a jury finds a racially hostile work environment, the employer will be vicariously liable for its supervisor’s actions because it cannot prove the affirmative defense set out in Faragher v. BocaRaton and Burlington Industries Inc. v. Ellerth.  Under those cases, an employer proves the Faragher/Ellerth defense to avoid vicarious liability under Title VII if the employer can show that it: (1) exercised reasonable care to prevent and correct promptly any racially harassing behavior; and (2) the employees unreasonably failed to take advantage of any preventative or corrective opportunities.  In the Holmes case, the court found that because the employees repeatedly complained to the employer’s management about the alleged harassment, the employer could not meet the second element of the Faragher/Ellerth defense.  Moreover, even if the employer could meet the second element, the court said that there was no way that the employer could meet the first element because it is well established that the mere institution of a policy alone is not sufficient to satisfy the first prong of the affirmative defense.  Because the employers’ policy in Holmes did not mention race or racial harassment and did not provide an avenue to bypass a harassing supervisor when making complaints, the court found the employer’s policy to be unreasonable as a matter of law on the grounds that it directed victims to report discrimination to their harassing supervisor and provided no alternative means to bypass the supervisor.

As a side, the Court also held that the employee’s use of allegedly offensive words outside of work, particularly in the form of rap music that two of the employees sang, is irrelevant and inadmissible at jury trial.

Lessons for Employers:  Employers should double check their anti-harassment policy to ensure that their policy makes reference to race or racial harassment and that the policy has an avenue to bypass a harassing supervisor when making complaints.  Employers who substantiate harassment complaints need to take disciplinary action and keep written documentation of what discipline was taken.  Employers who are aware of employees using racially offensive language at work should not turn a blind eye.   Employers must show that they are committed to enforcing their anti-harassment policies.  In addition to disciplining employees who violate anti-harassment policies, employers can show their commitment to their policies by routinely having employees participate in anti-harassment training.

The attorneys at Harmon & Davies, P.C. are here to assist employers with drafting and enforcing their anti-harassment policies and we also offer anti-harassment training for your employees.

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 Anti-Harassment Policy, Construction, Labor & Employment | No Comments »