Last week a federal appellate court found that rumors about a female employee “sleeping her way to the top” could create a hostile work environment based on gender. You can read more about the decision here.
Many are viewing this case as another instance of #Metoo impacting the workplace. If you haven’t recently conducted anti-harassment training, now is the time to get it on the calendar!
Yesterday, the Seventh Circuit became the first federal appeals court to extend protections of Title VII to discrimination on the basis of sexual orientation. The decision gives an Indiana professor, as well as other gay, lesbian, and bisexual individuals, the right to sue under Title VII over discriminatory employment practices based on their sexual orientation. According to the Court, “… it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex …”
This landmark decision is critical support for the EEOC’s interpretation that Title VII prohibits discrimination on the basis of sexual orientation and gender identity. It also increases the likelihood that the Supreme Court will decide whether Title VII does, in fact, prohibit discrimination on these grounds. Until the Supreme Court rules, however, employers in Illinois, Wisconsin and Indiana should consider the risk of sexual orientation or gender identity discrimination claims under Title VII (in addition to claims under applicable state and local laws prohibiting such discrimination) when making employment decisions. We will keep you posted on further developments relating to this issue.
The EEOC has confirmed its position that Title VII prohibits discrimination against employees based on sexual orientation. The EEOC’s statement followed on its prior determination that Title VII protects individuals against discrimination based on transgender status, gender identity, and an employee’s transitioning between genders. According to the EEOC, sexual orientation bias is “associational discrimination on the basis of sex.” Thus, employees who work for an employer with 15 or more employees can file a charge of sex discrimination with the EEOC if the employee has been discriminated against because of sexual orientation or gender identity or expression.
Notwithstanding the EEOC’s position, there is still no federal law that explicitly protects individuals from employment discrimination based on sexual orientation and gender identity. However, 22 states (including Illinois), Washington, D.C., and Puerto Rico, have state-based employment nondiscrimination laws that cover sexual orientation and/or gender identity that apply to both private and public sector employers.
With so much recent attention, employers should be particularly attentive to issues relating to sexual orientation and gender identity. We suggest updating any employment policies and practices to include prohibitions on discrimination and harassment based on sexual orientation and gender identity to help protect employers against EEOC and state-law challenges.
Employment laws regularly include record keeping requirements. And while these requirements are rarely front and center, they can rear their head and open companies to legal action. This month the EEOC filed suit in Philadelphia against a nationwide provider of janitorial and facilities management services for failing to maintain records and other information relating to how its employee selection procedures impact equal employment opportunities.
Under Title VII, covered employers must maintain records that disclose the impact that their selection procedures have on employment opportunities of individuals identifiable by race, sex, or ethnic group. In this lawsuit, EEOC claims that the company failed to make and keep records of applicants’ criminal background checks and criminal history assessments, information that they use to make ultimate hiring decisions. According to the EEOC, these records are necessary to show the impact that the company’s selection procedures have on individuals identifiable by race, sex, or ethnic group. The EEOC is seeking an injunction requiring the company to make and keep these records. This case is an important reminder for employers to ensure that they are properly making and keeping the records required by applicable federal, state, and local statutes and regulations.
Given the EEOC’s focus on records regarding criminal history and background checks, companies should also confirm compliance with federal, state and local laws regarding background checks, and how and when they are conducted and used. As we have previously discussed in this blog, a growing number of state and local governments have enacted “Ban-the-Box” legislation, putting restrictions on when criminal history information may be gathered. Companies that haven’t recently reviewed policies and procedures relating to retention of employee and applicant information, or that haven’t carefully considered whether their use of background checks is legally compliant, should do so.
Yesterday, the Supreme Court handed down its decision in EEOC v. Abercrombie & Fitch Stores, Inc., ruling in favor of a Muslim woman who claimed that she was denied employment at an Abercrombie & Fitch (A&F) store because she wore a headscarf. With this decision, the Supreme Court sent a clear message: an employer may not make a hiring decision based on an applicant’s need for a religious accommodation, regardless of whether the employer had actual knowledge of such a need.
Samantha Elauf (Elauf) is a practicing Muslim who wears a headscarf for religious reasons. Elauf claims that she applied for a job at an A&F store and that, although she was otherwise qualified to be hired, she was ultimately denied employment because her headscarf would violate A&F’s “Look Policy.” The Look Policy prohibits “caps” because they are too informal for A&F’s desired image. Elauf never identified her headscarf as religious to anyone at A&F, nor did she ever communicate a need for any religious accommodation. The EEOC sued A&F on Elauf’s behalf, claiming that A&F’s refusal to hire her violated Title VII. In response, A&F argued that it could not be found to have discriminated against Elauf by failing to priovide a religious accommodation unless it had “actual knowledge” of Elauf’s need for a religious accommodation. The district court disagreed with A&F’s argument and held in favor of Elauf the EEOC. However, the Tenth Circuit reversed, agreeing with the “actual knowledge” standard put forth by A&F.
The Supreme Court reversed the Tenth Circuit and remanded the case for further consideration, holding that, under Title VII, an applicant only needs to show that her need for an accommodation was a “motivating factor” in the employer’s decision — she need not show that the employer had actual knowledge of the need for an accommodation. In other words, an “employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions” [emphasis added]. The Court gave as an example a situation where an employer thinks (but doesn’t know for sure) that a job applicant may be an orthodox Jew who will observe the Sabbath and thus unable to work on Saturdays. If the applicant actually does require accommodation of that religious practice and the employer’s wish to avoid the accommodation is a motivating factor in its decision to not hire the applicant, the employer violates Title VII. The Court was clear in its decision that its ruling only applies to accommodation under Title VII, and not to accommodation under the Americans with Disabilities Act (ADA), which follows a different framework.
The take away here? Employers need to avoid basing employment decisions on any protected characteristic — whether confirmed or suspected. Although this case centered on a hiring decision and the anticipated need for an accommodation, it should apply equally to other terms and conditions of employment.
We recommend that managers, supervisors and those involved in the hiring process be trained on the legal requirements surrounding equal employment opportunity and on how to appropriately respond to requests for — or other information suggesting that there is a need for — an accommodation.
Full text of the EEOC v. Abercrombie & Fitch Stores, Inc. decision can be found at: http://www.supremecourt.gov/
Over the next couple of days, we are catching up on some recent developments. The first one we are going to discuss is the long-awaited decision by the Supreme Court inYoung v. UPS.
In Young, a pregnant employee requested light duty as an accommodation under the Pregnancy Discrimination Act (“PDA”). The PDA is a subsection of Title VII of the Civil Rights Act of 1964 that requires employers to treat “women affected by pregnancy…the same for all employment-related purposes…as other persons not so affected but similar in their ability or inability to work.”
The plaintiff argued that she should have been given light duty because the defendant, UPS, gave light duty assignments to employees with disabilities under the Americans with Disabilities Act (“ADA”), those with workplace injuries, and those who had lost Department of Transportation (“DOT”) certifications. UPS argued that it did not act unlawfully because it treated the plaintiff the same way it treated any other employee with physical limitations who did not meet UPS’ requirements for light duty — i.e., who did not have a disability under the ADA, did not have a workplace injury, and had not lost DOT certifications.
In its decision on March 25, 2015, the Court set out a new standard for assessing accommodation claims under the PDA. The Court held that a pregnant employee can make a prima facie case of pregnancy discrimination by showing that she requested an accommodation, that her request was denied, and that others similar in their ability or inability to work have been accommodated. At that point, the employer must show that it had legitimate, nondiscriminatory reasons for accommodating other employees but not the pregnant employee. The burden then shifts back to the employee to show that the employer’s reasons are pretexts for discrimination or that the employer’s policies impose a significant burden on pregnant employees which outweighs the employer’s reasons for the policies.
Although the decision did not go as far as some advocates for pregnant employees would have liked, it undoubtedly makes it easier for pregnant employees to bring claims under the PDA. Going forward, employers will be risking litigation if they reserve light duty assignments or other accommodations for only certain classes of employees, at least without a compelling justification for excluding pregnant employees. In light of this, employers should review their policies and practices regarding pregnancy-related accommodations for consistency. All requests for accommodation should be taken seriously and employers should gather as much information as possible in evaluating each individual request. Doing so may reduce the likelihood of future pregnancy-related claims, as well as protect employers from potential liability.
For the full decision in Young v. UPS, visit www.supremecourt.gov/opinions/slipopinions.aspx.
The Equal Employment Opportunity Commission (EEOC) made history recently by filing its first lawsuits alleging sex discrimination against transgender individuals.
The EEOC says Michigan-based RG & GR Harris Funeral Homes, Inc. and Florida-based Lakeland Eye Clinic discriminated against two transgender workers when they fired them for not conforming to “the employer’s gender-based expectations,” according to statements from the EEOC. Both complaints were brought under Title VII of the Civil Rights Act of 1964, on a gender-stereotyping theory.
Although the suits are the first of their kind to be filed by the EEOC, transgender individuals have been filing suits under state discrimination laws for several years. Earlier this year President Obama made it illegal for federal contractors to discriminate based on gender identity; however, the EEOC’s position that transgender individuals are protected by Title VII’s gender discrimination provisions is not clear on the face of Title VII and, until now, has not been tested in court.
In a suit filed in February, the Chicago District Office of the Equal Employment Opportunity Commission (EEOC) argued that the separation and release agreements used by CVS Pharmacy were “overly broad, misleading, and unenforceable.” Specifically, the EEOC argued that provisions in CVS’ agreements infringed on employees’ rights to file discrimination charges and participate in EEOC investigations. See our February 2014 post, EEOC Files Suit Over Separation Agreement Language for more details on that case.
Now, a different district office of the EEOC has filed a similar suit against another employer. The Phoenix District Office sued CollegeAmerica Denver on April 30, 2014 alleging that CollegeAmerica violated federal age discrimination laws by including various provisions in its form separation and release agreements impeding employee rights. The EEOC objects to CollegeAmerica’s broad release language, provisions limiting an employee’s ability to assist others with claims, and provisions requiring the employee to represent that he or she has not filed administrative claims or lawsuits.
Separation and release agreement language clearly is a “hot button” issue for the EEOC. Employers should review their form release agreements to ensure that they specifically permit an employee to file charges and participate in investigations by governmental authorities and do not place other impermissible limits on employee rights.
Yesterday’s Supreme Court decision in Schuette v. Coalition to Defend Affirmative Action is attracting a fair amount of attention in the news media. From an employment law perspective, the case likely will have little impact. In a decision drafted by Justice Kennedy, the Court held that states are free (in this circumstance, through a ballot referendum) to decide that they will not take race or gender into consideration in making admissions decisions to public universities. The Court’s decision did not affect the legality of voluntary affirmative action programs maintained by private employers or the federal government’s affirmative action rules. Indeed, coverage of the decision often treats all “affirmative action” as meaning either explicit quotas or overt consideration of race or gender in decision-making. However, the type of affirmative action carried out by private employers (except in cases where the affirmative action is ordered as a remedy for past discrimination) typically involves only increased efforts to reach out to underrepresented minorities and eliminate obstacles to their hiring and advancement. This type of affirmative action is likely to continue regardless of the increasing number of decisions and state laws limiting the use of quotas and preferences. The full Supreme Court’s decision in Schuette can be read here.
Over the last couple years, the EEOC has been taking aim at companies that use credit checks as part of the application process, arguing that excluding applicants based on credit checks has a disparate impact on minority applicants.
However, on Wednesday, the U.S. Court of Appeals sitting in Ohio dealt the EEOC a significant setback. In its decision in EEOC v. Kaplan Higher Education Corp., the 6th Circuit Court of Appeals found that the EEOC’s expert witness could not be relied upon to establish discrimination because his analysis was “unreliable”. As such, the appellate court upheld the lower court’s ruling in favor of Kaplan. The appellate court’s opinion closes with a damning statement regarding the EEOC’s credit check cases: “The EEOC brought this case on the basis of a homemade methodology, crafted by a witness with no particular expertise to craft it, administered by persons with no particular expertise to administer it, tested by no one, and accepted only by the witness himself. The district court did not abuse its discretion in excluding [the expert’s] testimony.”
It remains to be seen whether the EEOC will heed the court’s admonition or continue to push forward. Regardless, unless and until the EEOC finds an alternate way to establish that credit checks have a disparate impact on minority applicants, the Kaplan decision gives employers a strong response to any claim that relying on credit checks constitutes discrimination.
The Employment Lawyers 