Yoga and Massage Therapist Fired for Being “Too Cute” Sees Gender Discrimination Revived on Grounds of Unjustified Spousal Jealousy

A New York appeals court recently ruled in Edwards v. Nicolai (153 A.D.3d 440 (N.Y. App. Div. 1st Dep’t 2017)) that an employment termination motivated by the sexual jealousy of an employer’s spouse may support a claim for gender discrimination under the New York State Human Rights Law (“NYSHRL”) and the New York City Human Rights Law (“NYCHRL”).

Defendants Charles Nicolai and his wife Stephanie Adams – a former Playboy model – were co-owners of a chiropractic center located in New York City. In 2011, Nicolai hired plaintiff Dilek Edwards, a female yoga and massage therapist, and was her direct supervisor. Edwards’s complaint alleged that during the course of her employment, her relationship with Nicolai was “purely professional” and that Nicolai “regularly praised [her] work performance.”

However, in June 2013, Nicolai purportedly told Edwards “that his wife might become jealous of [her], because [Edwards] was too cute.” Several months later, Adams sent plaintiff a text message saying, “You are NOT welcome any longer at Wall Street Chiropractic, DO NOT ever step foot in there again, and stay the [expletive] away from my husband and family!!!!!!! And remember I warned you.” A few hours later, Edwards allegedly received an email from Nicolai stating, “You are fired and no longer welcome in our office. If you call or try to come back, we will call the police.” One day later, Adams filed an allegedly false complaint with the New York City Police Department claiming that Edwards placed “threatening” phone calls to Adams which caused Adams to change the locks at her home and business. Edwards’s complaint alleges that she has “no idea what sparked . . . Adams’ [sic] suspicions.”

Edwards’s NYSHRL and NYCHRL gender discrimination claims were dismissed at the trial court level. However, that decision was overturned on appeal, with the court holding that “adverse employment actions motivated by sexual attraction are gender-based, and therefore, constitute unlawful gender discrimination.” The court explained that while Edwards does not allege that she was subjected to sexual harassment, it can be inferred that Nicolai was motivated to terminate Edwards “by his desire to appease his wife’s unjustified jealousy.” Further, it can also be inferred that Adams was motivated to terminate Edwards based on Adams’s own jealousy. Accordingly, the court found it plausible that each defendant’s motivation to terminate Adams was sexual in nature and therefore unlawful.

In reaching its decision the court observed that, “while it is not necessarily unlawful for an employer to terminate an at-will employee at the urging of the employer’s spouse,” a plaintiff may find relief for such a discharge if the spouse requested the termination for unlawful, gender-related reasons. Here, assuming Edwards’s allegations are true, her termination was unlawful not because Adams asked Nicolai to fire Edwards, but because she did so for no other reason than her belief that Nicolai was sexually attracted to Edwards.

Laura Doyle contributed to this post.

This post was written by Jonathan Sokolowski of Sheppard Mullin Richter & Hampton LLP., Copyright © 2017
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The Consequences of Hate Speech in the Aftermath of Charlottesville: An Employer’s Guide to Handling Rally-Attending Employees

In the aftermath of the events in Charlottesville, Virginia, over the weekend, a Twitter account with the handle @YesYoureRacist began soliciting the assistance of the general public to identify rally attendees based on photographs. “If you recognize any of the Nazis marching in #Charlottesville, send me their names/profiles and I’ll make them famous,” the Twitter-detective tweeted. Not surprisingly, many rally attendees were quickly identified, along with their educational institutions and/or places of employment. For employers this raises an interesting question: “Does my employee who participates in a white supremacist/neo-Nazi rally enjoy any job protections from said participation?” It depends.

In the days following the events in Charlottesville, we have already seen one rally participant resign his employment; three rally participants have been terminated by their respective employers; one university has publicly condemned white supremacy but informed the public they would not expel participating students; one family has publicly disavowed their son; two web-service providers removed a neo-Nazi-themed website from its servers; one Pennsylvania firefighter is under investigation for a distasteful Facebook post directed at an African-American colleague; and two police officers, one in Massachusetts and one in Kentucky, are under scrutiny for making Facebook posts mocking counter-protesters who were run down by a motor vehicle during the rally. In today’s world of mass consumerism, and with the public pressures of social media, this type of public shaming and influence is likely here to stay.

Although public-sector workers generally cannot be terminated for their exercise of speech, many union contracts require “just cause” to terminate, and some employees have employment contracts which control grounds for termination, federal law does not offer any protections for employee hate speech in the private sector, except in limited circumstances discussed later where the employee may otherwise be engaging in protected activity. Thus, for private sector employers not subject to off-duty conduct state law protections, it is not per se illegal to fire workers if what they choose to do or say in their free time reflects poorly on your business.

Employers and employees alike are probably asking: “But what about the Constitutional right to free speech?” The First and Fourteenth Amendments offer little protection for individuals who engage in hate speech and are fired by their private employer. Although “hate speech” in and of itself may be protected (except for fighting words, or true threats of illegal conduct or incitement), a private employer is equally protected when it “speaks” by terminating its employee. Private-sector employers do not have to allow employees to voice beliefs they or other workers may find offensive. While employers in the public sector need to proceed with caution, where a worker attends and participates in something as extreme as a white supremacist/Neo-Nazi rally, the employee will generally lose the protection of the Constitution. For instance, in Lawrenz v. James, the Eleventh Circuit affirmed a correctional institution’s interest in the efficient operation of a correctional facility outweighed a public-sector correctional officer’s First Amendment right to wear, off-duty, a T-shirt adorned with a swastika and the words “White Power.”

Employers must also consider whether the National Labor Relations Act (NLRA) offers any protection to both union and non-union employees engaged in this or similar off-duty conduct. While the NLRA’s primary concern is unionized workers, Section 7 also protects nonunion workers when they engage in “concerted activities for the purpose of . . . mutual aid or protection.” As of late, the National Labor Relations Board has taken an expansive view of Section 7, recently commenting that a picketing worker who made racist comments, with no overt gestures, directed towards a group of black replacement workers was protected. The Board reasoned that one of the necessary conditions of picketing is confrontation, and that impulsive behavior on the picket line is expected, particularly when it is directed against non-striking employees. In affirming the Board’s decision in Cooper Tire & Rubber Co. v National Labor Relations Board, the Eighth Circuit noted the picketing employee’s statements were not violent in character, did not contain overt or implied threats, and were not accompanied by threatening behavior or intimidating actions toward the replacement workers. The speech was protected because it was non-disruptive and occurred while the employee was engaging in protected activity (picketing). Here, it would be difficult for a Charlottesville rally participant to argue that his or her behavior under the circumstances was non-disruptive, non-threatening and/or not intimidating.

To be certain, private employers have a right to hold employees accountable for their viewpoints and to make employment decisions based on those actions, particularly where employers have a good faith belief that an employee’s viewpoints or actions may create a hostile work environment for other employees. However, as with any termination, employers should proceed with caution. Employers should not blindly trust a Twitter-verse investigation and should instead conduct their own investigation before making any employment-related decisions. Moreover, if you are a public sector employer or operate in a state subject to off-duty conduct statutes or one that does not follow the standard at-will employment doctrine, it is imperative you consult with legal counsel before proceeding with discipline or other employment-related decisions. Last, employers must not forget that if the to-be-disciplined employee also falls into a protected class, you should remain cognizant of the potential exposure with respect to a separate or inter-related discrimination claim.

Now may be as good of time as any to re-visit sensitivity and workplace harassment training.

This post was written by Janay M. Stevens of Dinsmore & Shohl LLP.
Read more employment law at the National Law Review.

Fox News Lawsuits Highlight Importance of Workplace Culture

Employers should take note of the position Fox News is in due to the proliferation of recent lawsuits against the network by numerous current and former employees. To be clear and fair, the lawsuits only involve allegations at this time – nothing has been proven at trial, or otherwise.  Indeed, Fox News has denied the allegations. However, the common intertwined theme throughout all the lawsuits is that Fox News tolerates harassmentdiscrimination and retaliation. In short, the lawsuits attack Fox News’ workplace culture.

By having its workplace culture attacked, Fox News faces certain defense challenges. For instance, there is likely an increased risk of copycat or “me too” claims.  In fact, Fox News has stated as much to the media. Additionally, the effectiveness of Fox News’ anti-harassment/discrimination policies and its remedial process addressing harassment or discrimination complaints is at issue. Therefore, the company may face challenges in asserting the defense that those employees or former employees alleging discrimination or harassment never complained about the alleged improper conduct, and therefore never gave the company an opportunity to take appropriate remedial action.  Lastly, Fox News has suffered damage to its public reputation.

So what is the takeaway? Simply put, workplace culture matters. Employers should embrace the creation of a harassment/discrimination free workplace culture.  Such a culture should reduce potential lawsuits because the company would be given the opportunity to redress issues early on. Additionally, such a culture will strengthen the company’s defenses against harassment and discrimination claims, lead to increased employee morale and protect against unfavorable publicity that can damage the employer’s reputation.

The following are tips for employers to help create a harassment/discrimination free workplace:

  • Institute a written harassment/discrimination workplace policy with an effective complaint procedure. The complaint procedure should allow employees to bypass their immediate supervisors and report violations directly to other members of management or directly to the HR department. Convey the message that the policy applies to anyone in the workplace, including supervisors, co-workers, vendors and customers, and that anyone can be a harasser or victim.

  • Provide training or information for current and new employees on policy. Conduct refresher training routinely.

  • Implement training for supervisors and managers on relevant policies, including their supervisory responsibilities and role in ensuring compliance with anti-discrimination and harassment policies.

  • Develop the expectation that any employee who is a victim or witness to harassment or discrimination is required to report it.

  • Communicate that retaliation for raising complaints will not be tolerated.

  • Treat complaints confidentially, to the extent practical.

  • Investigate alleged incidents of harassment/discrimination promptly and objectively. Remember that your selection of the individual(s) conducting the investigation matters. The investigator(s) should have sufficient authority to take appropriate remedial action and should be credible. At the end of the investigation, discuss the results with individual who made complaint.

  • Institute appropriate disciplinary action, up to termination, when investigation determines that a policy violation has occurred.

  • Prior to terminating or taking adverse action against an employee, examine potential basis for a retaliation allegation.

Muslim employee who was allegedly told to remove that “rag” from her head gets new day in court

A federal appellate court ruled yesterday that a Muslim employee of Astoria Bank who was allegedly subjected to a “steady barrage” of shameful racist and anti-Muslim statements should be allowed to present her hostile work environment claim to a jury.  Ahmed v Astoria Bank, No. 16-1389 (2d. Cir. May 9, 2017).

Among other things, a senior supervisor reportedly told the employee (Ahmed) to remove her hijab (a headscarf traditionally worn by Muslim women), which the supervisor referred to as a “rag.”

What is a “hostile work environment”?

To prove a hostile work environment claim, an employee must show that the underlying acts were severe or pervasive.  A single act of severe harassment, such as a sexual assault, is actionable under Title VII of the Civil Rights Act.  The acts, however, must be based the employee’s protected characteristic (for example, gender, race, national origin, religion, disability).

Petty slights and generally rude behavior will not rise to the level of an unlawful hostile work environment.

To determine whether harassment violates Title VII, courts consider the following factors:

  • the frequency of the discriminatory conduct;
  • its severity;
  • whether it is physically threatening or humiliating, or a mere offensive utterance; and
  • whether it unreasonably interferes with an employee’s work performance.

The employer may automatically be liable if a supervisor harasses an employee that causes an adverse action like termination, lost wages, or a suspension.

If a supervisor creates a hostile work environment for an employee, then the employer will escape liability only if it can prove:

  • it reasonably tried to prevent and promptly correct the harassing behavior; and
  • the employee unreasonably failed to take advantage of any preventive or corrective opportunities offered by the employer

If a non-supervisory employee harasses another employee, then the employer will be liable for the harassment if the employer knew, or should have known, about the hostile work environment and failed to promptly correct it.

Evidence supporting Ahmed’s hostile work environment claim

The Second Circuit Court of Appeals decision in Ahmed v. Astoria Bank overruled the District Court’s ruling that Ahmed had not produced sufficient evidence to establish a hostile work environment.  The evidence in this case was “right on the knife’s edge of either granting [summary judgment] or allowing [the case] to go to the jury[,]” according to the Second Circuit Court of Appeals.  It nonetheless found that the following alleged conduct by Ahmed’s supervisor was “severe or pervasive” enough for a jury to conclude that an “abusive working environment” existed:

  • “constantly” telling Ahmed to remove her hijab, which he referred to as a “rag,”
  • demeaning Ahmed’s race, ethnicity, and religion “[o]n several occasions,” and
  • making a comment during Ahmed’s interview on September 11, 2013 that Ahmed and two other Muslim employees were “suspicious” and that he was thankful he was “in the other side of the building in case you guys do anything.”

The case will now return to the federal district court for a jury trial on the hostile work environment claim.

Remedies available in hostile work environment claims

A variety of potential remedies will be available under Title VII of the 1964 Civil Rights Act if you win your hostile work environment case.

Assuming that your case is an individual, Title VII case against a private company, then a court may award you any combination of the following remedies:Religious Dress UK WorkplaceCompensatory damages, including emotional distress damages, as well as out of pocket expenses for job searches, medical expenses, etc.;

  • Back pay;
  • Punitive damages; and/or
  • Attorney’s fees, expert witness fees, and litigation costs

Other remedies may be available in hostile work environment cases against the federal, state, or local government, as well as  cases under different anti-discrimination laws.

EEOC Orientation-Bias Guidance Stirs Controversy among Commentators

EEOC Supreme CourtThe public comment period for the U.S. Equal Employment Opportunity Commission’s (EEOC) proposed workplace harassment guidance closed last week. The EEOC’s broad definition of sexual orientation bias drew attention from practitioners and advocacy groups alike. Amidst the uncertain legal landscape surrounding harassment based on sex, the EEOC’s proposed guidance takes a progressive stance on the scope of what constitutes sex-based harassment. Under the proposed guidance, the EEOC’s definition of harassment based on sex, protected by Title VII, includes an “individual’s transgender status or the individual’s intent to transition,” “gender identity,” and “sexual orientation.” The guidance went further, stating that “using a name or pronoun inconsistent with the individual’s gender identity in a persistent or offensive manner” is sex-based harassment.

The proposed guidance follows a June 2016 report issued by the EEOC’s Task Force on Workplace Harassment, describing strategies to prevent harassment at work. According to the report, almost one-third of claims filed with the EEOC are harassment-based, with sexual harassment constituting over 40% of the claims in the private sector. Issued this past January, the EEOC’s proposed guidance’s purpose is to guide practitioners, employers, and employees alike on the agency’s position toward different types of harassment protected by Title VII. The new guidance updates nearly three-decades-old EEOC direction on workplace harassment and expands the scope of harassment in several areas, including sexual orientation and gender identity. The public comment period, which ended this past week, drew 154 comments. The wide array of those comments highlights the controversial nature of what is and is not be protected under Title VII when it comes to sex-based harassment.

Most critics of the proposed guidance called the EEOC’s definition of sex-based harassment premature and unsupported by case law. Three federal appellate courts are currently deciding cases based on whether sexual orientation is protected under Title VII, but no appellate court to date has found that it is indeed protected. Opponents of the guidance argued that, without certainty at the Congressional or Supreme Court level, the EEOC is improperly “legislating from below” and is in danger of diminishing its credibility.

On the other hand, supporters of the guidance commended the EEOC for its broad definition of sex-based harassment, and some even urged the EEOC to further broaden the definition to include those who do not identify with the gender binary or who are unable or choose not to transition fully. There was also some concern among proponents that the current phrase “intent to transition” would encourage the court to draft intent-based tests that would exclude certain individuals from protection under Title VII.

Commentators took particular notice of the improper pronoun usage example, which states that using a pronoun inconsistent with an individual’s gender can constitute Title VII-prohibited harassment. Some criticized this as an improper classification of hate speech that went beyond the scope of Title VII protection. Others lobbied for an adjustment period for employees and employers to adopt the new standard or, alternatively, add an intent element to the act. Proponents applauded the example’s inclusion as a type of harassment often experienced by employees.

As the government agencies and courts grapple with what is protected under Title VII, it would be prudent for all employers (including those who are not in states or localities that have explicitly broadened these protections) to include both sexual orientation and gender identity in their policies and trainings. The EEOC’s guidance may signal what is to come in the ever-changing area of sex-based harassment as courts and agencies trend toward a more inclusive definition of sex-based harassment. In addition to the possible legal ramifications, getting ahead of the curve and creating a harassment-free workplace promotes a healthier and happier work environment for all and, in the end, makes good business sense.

Seventh Circuit: Title VII Offers No Protection Against Sexual Orientation Discrimination

sexual orientation discriminationIn the midst of a legal, political and cultural landscape expanding the rights of LGBT individuals, the Seventh Circuit U.S. Court of Appeals has held to prior precedent in reaffirming that Title VII does not prohibit sexual orientation discrimination. Kimberly Hively v. Ivy Tech Community College, __ S.Ct. __, No. 15-720 (July 28, 2016).  According to the court, though “the writing is on the wall” that sexual orientation discrimination should not be tolerated, because the writing is not in a Supreme Court opinion or Title VII, the court’s hands are tied.

In two 2000 opinions, Hamner v. St. Vincent Hosp. & Health Care Ctr., Inc.and Spearman v. Ford Motor Co., the Seventh Circuit had previously held that Title VII offers no protection from sexual orientation discrimination. The court revisited the issue now in order to provide a more detailed analysis in light of recent trends and decisions advancing LGBT rights.

The court recognized the merits of many of Ms. Hively’s arguments, and acknowledged that in light of the recognition of other rights of LGBT individuals the current legal landscape does not make sense. In recent years, the U.S. Supreme Court struck down the Defense of Marriage Act as unlawful (U.S. v. Windsor) and legalized gay marriage (Obergefell v. Hodges). In 2015, the EEOC held that sexual orientation discrimination is a form of sex discrimination under Title VII. Baldwin v. Foxx (July 16, 2015). Many judicial decisions at the district court level have repeatedly recognized that sexual orientation discrimination cannot be tolerated. Yet, Congress has repeatedly rejected new legislation that would extend Title VII to cover sexual orientation discrimination, and it has not amended the language of Title VII to include sexual orientation.

This creates “a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act.” The court observed, “From an employee’s perspective, the right to marriage might not feel like a real right if she can be fired for exercising it.”

Nonetheless, the court stated that Congress’ failure to amend Title VII to include sexual orientation cannot be due to its unawareness of the issue. Thus, Congress must have intended a very narrow reading of the term “sex” when it passed Title VII.

In excluding sexual orientation discrimination from the coverage of Title VII, the Seventh Circuit conveyed its apparent reluctance in doing so:

“Perhaps the writing is on the wall. It seems unlikely that  our  society  can  continue  to  condone  a  legal  structure  in  which employees can be fired, harassed, demeaned, singled  out  for  undesirable  tasks,  paid  lower  wages,  demoted,  passed  over  for  promotions,  and  otherwise  discriminated  against solely based on who they date, love, or marry. The agency tasked with enforcing Title VII does not condone it, … many of the federal  courts to consider the matter have stated that they do not  condone it …; and this court undoubtedly  does not condone it… . But writing  on the wall is not enough. Until the writing comes in the  form of a Supreme Court opinion or new legislation, we  must adhere to the writing of our prior precedent[.]”

The Seventh Circuit went on to offer its further observations:

“Many citizens would be surprised to learn that under federal law any private employer can summon an employee into his office and state, “You are a hard‐working employee and have added much value to my company, but I am firing you because you are gay.” And the employee would have no recourse whatsoever—unless she happens to live in a state or locality with an anti‐discrimination statute that includes sexual orientation.”

Those states are currently California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Utah, Vermont, Washington and Wisconsin. Other states apply the prohibition to public employment only: Alaska, Arizona, Indiana, Kentucky, Louisiana, Michigan, Montana, North Carolina, Ohio; Pennsylvania, and Virginia. Some local city and county ordinances contain similar anti-discrimination provisions.

The bottom line for both employers and LGBT individuals, in the Seventh Circuit and elsewhere, is that the employment protections afforded to individuals based on sexual orientation remains determined, for now, at the state and local level.

© 2016 Schiff Hardin LLP

Are Your Anti-Harassment Initiatives Working? EEOC Says NO

It has been thirty years since the U.S. Supreme Court ruled that workplace harassment was a form of discrimination prohibited by Title VII of the Civil Rights Act of 1964. In a series of court and agency decisions since that time, we have been provided some guidance on what the courts and the EEOC expect employers to do in order to protect their employees from unlawful harassment, but never has the guidance been more clear than in a report the EEOC released in June.

Zero Tolerance, EEOC, harassmentThe report is the result of an EEOC task force charged with examining workplace harassment and methods for preventing and addressing it. The report is clear – it’s time for a reboot of workplace harassment prevention and compliance initiatives. The report is rich with statistics and examples, and worth a read for the list of 12 harassment risk factors and recommendations. Pay particular attention to the section on training. The report unequivocally states: training should be conducted by qualified, live, and interactive trainers. In addition, the EEOC advises what we have long believed to be the case: in order to be effective, anti-harassment training should be delivered “live” with the top level of leadership present and participating.

So, we encourage you to take pause and inventory your anti-harassment initiatives. Is your current program effective and are your training dollars well-spent?

You can find a copy of the EEOC’s report here.

Copyright © 2016 Godfrey & Kahn S.C.