Tag: civil rights

BREAKING: US Supreme Court Rules Title VII Protects LGBTQ Employees

In a highly anticipated decision, the U.S. Supreme Court held Title VII of the federal Civil Rights Act protects LGBTQ employees from being fired because of their sexual orientation or gender identity.

The opinion, released on June 15, 2020, was a consolidation of three federal appellate court decisions—Bostock v. Clayton County; Altitude Express v. Zarda; and R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission. In each case, the employer terminated the plaintiff after learning that he or she was gay or transgender.

In Bostock, the 11th Circuit Court of Appeals held Title VII did not protect an employee against discrimination because of his or her sexual orientation, relying on circuit precedent. The 2nd Circuit came to the opposite conclusion in Zarda, concluding an employer discriminated on the basis of sex (including gender stereotypes) when it terminated a long-time employee. In R.G. & G.R., the 6th Circuit held Title VII protected against discrimination based on an employee’s transgender or transitioning status because such discrimination is grounded in an employee’s failure to conform to gender stereotypes.

Justice Neil Gorsuch, writing for the majority, analyzed whether discrimination because of sexual orientation or transgender status is fundamentally sex discrimination for failing to conform to gender stereotypes—an issue already determined to fall within Title VII’s scope.

In its analysis, the majority used the example of an employer who has a policy of firing any employee who is known to be gay. According to the Court, if a model employee brings a female spouse to an office holiday party and the employee is then fired due to also being female rather than male, the employer discriminated on the basis of sex, even if the intent was to discriminate on the basis of sexual orientation.

Similarly, the Court reasoned that an employer cannot discriminate against one of two otherwise identical female employees because she was identified as a male at birth. In doing so “the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.” Accordingly, such discrimination is indistinguishable from sex discrimination.

Justice Samuel Alito, joined by Justice Clarence Thomas, authored one of two dissenting opinions. Justice Alito’s primary points of disagreement with the majority were: (1) the definition of “sex,” as understood by the legislators who authored Title VII, does not include sexual orientation or transgender status; and (2) Congress has had opportunities to amend Title VII to expressly include such protections but has failed to do so.

Justice Brett Kavanaugh’s dissent relied on his interpretation of the “ordinary meaning” of Title VII, which he concluded does not include protections for sexual orientation or transgender status. As such, Justice Kavanaugh reasoned it was not the Court’s role to expand the scope of Title VII. Despite his disagreement with the majority, Justice Kavanaugh’s dissent concluded with a congratulatory note to those he would deny Title VII’s protections, “Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result.”

The upshot of the Court’s Bostock decision is effectively an expansion of Title VII’s antidiscrimination protections to LGBTQ employees. While many employers already have policies prohibiting discrimination because of sexual orientation and/or transgender status, this decision presumably authorizes EEOC charges and Title VII claims for such discrimination.

© 2020 Dinsmore & Shohl LLP. All rights reserved.

For more on discrimination protections see the National Law Review Civil Rights law section.

EEOC Issues ADA and Title VII Guidance for Employers on COVID-19

The Equal Employment Opportunity Commission (EEOC) recently hosted a webinar in which the agency answered questions about the applicability of the Americans with Disabilities Act (ADA) and Title VII to COVID-19-related employment actions.  This Q&A supplemented earlier guidance posted by the EEOC.

This post summarizes the guidance and takeaways from the EEOC webinar.

  • The EEOC updated its previously published guidance entitled “Pandemic Preparedness in the Workplace and the Americans With Disabilities Act” to provide information and examples regarding COVID-19. This new guidance confirms that COVID-19 constitutes a “direct threat” and a significant risk of substantial harm would be posed by having someone with COVID-19, or symptoms of it, present in the workplace.
  • Employers should follow the EEOC guidance in conjunction with the guidelines and suggestions made by the CDC and state/local health authorities.
  • The guidance also answers common employer questions about the COVID-19 pandemic, such as:

Q:     How much information may an employer request from an employee who calls in sick in order to protect the rest of its workforce during the COVID-19 pandemic?

A:    ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA. Employers generally may not ask these questions of employees who are teleworking since they are not entering the workplace and do not pose a threat to others.

We note, however, that if an employee recently started teleworking, employers may want to ask the employee if they exhibited symptoms of COVID-19 before starting telework, so the employer can inform those with whom the employee had been in close contact about the potential exposure.

Q:     What if an employee refuses to answer COVID-19 related questions by the employer?

A:    The ADA allows employers to bar an employee’s physical presence in the workplace if he or she poses a threat to others. Employers should ask for the reason behind the employee’s refusal and reassure the employee if the employee is hesitant to provide this information.

Q:    When may an employer take an employee’s temperature during the COVID-19 pandemic?

A:    Generally, taking an employee’s temperature is a medical examination under the ADA. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19, employers may take employees’ temperature. However, employers should be aware that some people with COVID-19 do not have a fever, while some people with a fever do not have COVID-19.

Employers, however, are well-advised to first consult with counsel to ensure the administration of these tests stays within the guidance and does not otherwise violate applicable law.

Q:    Can an employer ask COVID-19 related questions about an employee’s family members? 

A:    This unnecessarily limits the inquiry. A better question is whether the employee has had contact with anyone diagnosed with COVID-19 or who was showing symptoms of COVID. A general question like this is more sound. The Genetic Information Nondiscrimination Act (GINA) prohibits employers from asking employees medical questions about an employee’s family members.

Q:    How are employers supposed to keep medical information of employees confidential while teleworking?

A:     The ADA requires that medical information be stored separately away from other personnel files and employee information. A supervisor who receives this information while teleworking should follow normal company procedures to store this information. If they cannot follow the procedures for whatever reason, they should make every effort to safeguard the information from disclosure (for example, do not leave a laptop open or accessible to others; do not leave notepads with information around the home, etc.).

Q:    What are an employer’s ADA obligations when an employee says he has a disability that puts him at a greater risk of severe illness if he contracts COVID and therefore asks for a reasonable accommodation?

A:    The CDC has identified certain conditions (for example, lung disease) that put certain people at a higher risk for severe illness if COVID-19 is contracted. Thus, this is clearly a request for a reasonable accommodation and a request for a change in the workplace. Because employers cannot grant employees reasonable accommodations for disabilities that they do not have, employers may verify that the employee has a disability, what the disability is, and that the reasonable accommodation is necessary because the disability may potentially put the individual at a higher risk for severe illness due to COVID-19.

There may also be a situation in which the employee’s disability is exacerbated by the current situation. The employer may verify this as well. Aside from requesting a doctor’s note, other options to verify an employee’s disability may be to request insurance documents or their prescription. An employer may want to provide a temporary reasonable accommodation pending receipt of the documentation.

Q:    If an employer grants telework to employees with the purpose of slowing down/stopping COVID-19 – after the public health measures are no longer necessary, does the employer automatically have to grant telework as a reasonable accommodation to every employee with a disability who wishes to continue this arrangement?

A:    No. Anytime an employee requests a reasonable accommodation, the employer has the right to understand and evaluate the disability related limitation and make a determination on the request. After the pandemic, a request to telework does not have to be granted if working at the worksite is an essential function of the job in normal circumstances (i.e. not during a pandemic). The ADA never requires an employer to limit the essential functions of a position, and just because an employer did this during the pandemic does not mean an employer has to permanently change the essential functions of a position, and is not an admission that telework is a feasible accommodation or that telework does not place an undue hardship on the employer.

The guidance further addresses common questions related to discrimination and harassment under Title VII, such as:

Q:     May an employer decide to layoff or furlough a pregnant employee who does not have COVID-19 or symptoms solely based on the CDC guidance that pregnant women are more likely to experience severe symptoms and should be monitored?

A:     No, because pregnant employees are protected under the Pregnancy Discrimination Act of Title VII.

Q:    May an employer exclude from the workplace an employee who is 65 or older and who does not have COVID, solely because he or she is in an age group that is at higher risk for severe illness as a result of COVID?

A:    No, age based actions are not permitted. The Age Discrimination in Employment Act prohibits discrimination against those who are 40 or older.

Q:    May an employer single out employees based on national origin and exclude them from the workplace due to concerns about possible COVID-19 transmission? May employers tolerate a hostile work environment based on an employee’s national origin or religion because others link it to the transmission of COVID-19?

A:    No, because Title VII prohibits national origin discrimination. It does not matter that it is linked to COVID-19. Employers should remind employees of anti-discrimination and anti-harassment policies and also should ensure that they are not taking employment actions based on an employee’s protected class(es).

  • An employer may make inquiries that are non-disability related to identify potential non-medical reasons for an employee’s absence or future absence. For example, an employer may ask a “yes” or “no” question that asks if the employee or someone in his or her household falls within the categories identified by the CDC for being at higher risk for severe illness if COVID-19 is contracted (such as pregnancy or being over the age of 65).
  • An employer may also screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job.
  • While employers may require doctors’ notes certifying their fitness for duty before returning to work, as a practical matter, doctors and other health care professionals may be too busy during the pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches, such as requesting an employee’s prescription, may be necessary.

This is a challenging time and events are changing rapidly. EEOC guidance and interpretation of what is permissible under the ADA and Title VII is evolving and may change as circumstances develop.

©1994-2020 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

For more employer guidance from Gov’t Agencies amid the COVID-19 pandemic, see the National Law Review dedicated Coronavirus News section.

How an Entire Class of Prison Guard Trainees Could Have Been Saved by a Simple Bystander Intervention Program

In December 2019, an entire class of West Virginia prison guard trainees was reportedly fired for giving the Nazi salute in their graduation photo.

The incident is not only a chilling display of a detestable symbol of genocide. It is also a crystal-clear example of the problem of the passive bystander. But modern training methods, based on current research on the science of bystandership, can help prevent such abuses before they occur. Such programs are being successfully adopted by law enforcement agencies and other organizations around the country.

What happened in West Virginia: Several news outlets have published the November graduation photo showing a class of over 30 prison guard cadets displaying the Nazi salute. According to published reports, the gesture was one cadet’s idea of a tribute to the group’s training officer. An internal investigation of the incident found that the training officer, Karrie Byrd, “saw nothing wrong with the gesture and allowed it to continue.” Several class members objected to the gesture, but went along out of fear of retaliation. Two other instructors saw the gesture and spoke out, thinking their duty to object was fulfilled. A corrections department Captain, Annette Daniels-Watts, reportedly recognized that the picture would cause the Department embarrassment, but allowed the photo to be printed and distributed with graduation materials. The Department’s subsequent internal investigation concluded that the entire class (and several of the instructors) should be fired. Acting on the recommendation, West Virginia Governor Jim Justice fired the entire class on New Year’s Eve.

Multiple opportunities to intervene: As goes the adage often attributed to Edmund Burke, the only thing necessary for the triumph of evil is that good people do nothing. We don’t know if there were any actual Nazis in the West Virginia cadet class, but it is safe to assume not all were. Many participants in the incident had opportunities to intervene, but none did. The instigator of the incident reportedly said he was honoring the instructor with the gesture. To classmates who objected, he assured them that since there was no racial motivation behind it, the gesture was acceptable. Two other instructors witnessed the gesture being made during training exercises and informed the class of the inappropriateness of the gesture. Those instructors reportedly thought their comments stopped the inappropriate behavior. Yet multiple instructors later saw the graduation photograph and did nothing to stop its publication. And the Captain in charge of cadet basic training, when shown the photograph by a secretary responsible for assembling the graduation materials, reportedly told the secretary, “oh, I should just pull it, but since you have them all already printed you might as well go ahead and stuff them into the packets.” At each of these moments, a bystander could have helped stop the activity. But the bystanders didn’t have the tools they needed to act effectively.

Inhibitors to action: Why do people fail to effectively intervene against a behavior they know is wrong? We all do it. The answer is that the tactics and strategies for successful intervention are not innate. We need to be trained to overcome factors that inhibit action in the face of bad behavior. The West Virginia investigation report concludes as follows:

  1. There is “no dispute” that the gesture and photograph were highly offensive.
  2. The investigation did not reveal any overt motivation or intent of discrimination “towards any racial, religious, or ethnic group.”
  3. Rather, the report identifies the factors behind the incident as “poor judgment, ignorance, peer pressure, and fear of reprisal.”

All the factors identified in the report are well-documented inhibitors to active bystandership. Importantly, good peer intervention techniques are proven to address such inhibitors. The program instituted by the New Orleans Police Department is one such program. The program is known as “Ethical Policing is Courageous,” or EPIC. It was implemented by the men and women of the NOPD with the support and guidance of several outside experts, including the Department’s judicially-appointed monitors. Since then, the EPIC program has been brought to other municipal police departments, and at least one university police department.

In law enforcement organizations, one of the main inhibitors to intervention is peer pressure, particularly when officers fear ostracism or retaliation from fellow officers. This effect is sometimes referred to as the “blue wall of silence.” That wall of silence is rooted in the value of protecting fellow officers from harm, but becomes pernicious when it suppresses intervention against bad acts.

Some corrective actions may miss the mark. According to some reports, West Virginia plans to begin training its corrections department staff about the Holocaust as a result of the cadet graduation photo incident. Surely a better understanding of the Holocaust would help the cadets see that the Nazi gesture is offensive. But it might not be a complete solution. It doesn’t address the inhibitors to intervention that are present in all such situations, and which are especially pervasive in law enforcement environments.

Active bystandership makes us all better. Good peer intervention training programs work precisely because they can break the wall of silence. For example, the EPIC program ties positive, early intervention to the value of protecting fellow officers. Instead of relying on ethics training, discipline, or negative reinforcement, the program emphasizes that stepping in to prevent misconduct can help save a fellow officer’s life, safety, or career. Intervention skills are taught as a learnable skill, on the same level as learning to operate the radio, use a firearm, or apply handcuffs. When active intervention skills become pervasive, problems can be prevented before a crisis occurs. The EPIC program has garnered positive reviews from many quarters.

The West Virginia government has rightly been praised for its transparent and thorough response to this incident, but crisis management is difficult and traumatic. If objectionable behavior can be stopped earlier, the need for an expensive crisis response can be avoided. More importantly, officers can learn to be better through the intervention of a peer. Aronie reports that “many officers will recount with gratitude” throughout their careers the story of a partner or sergeant who prevented a mistake or misconduct through active and early intervention.

Peer intervention can help prevent officer misconduct, but it can also have other positive effects, including to increase the effectiveness of enforcement methods, improve officer and inmate safety, increase community engagement, and prevent excessive use of force. There are some indications that it may also help reduce officer suicides. More broadly, active bystandership has the potential to make us all better in the face of evil. Ervin Staub is a prominent scholar of the psychology of peace and violence. In the preface to his book on bystander intervention, The Roots of Goodness and Resistance to Evil, Staub recounts stories of bystanders who resisted the Nazi persecution of Jews during WWII. In some cases, resistance changed the behavior of the perpetrators, and lives were saved. Among the lives saved were those of Staub and his family, who were protected by Christian bystanders in Hungary in the summer of 1944.

In the end, not all offensive conduct can be stopped. But we can do better with proper awareness, and we will be better for it. The West Virginia incident provides an excellent example of how better intervention could have helped a whole community. As New Orleans civil rights attorney Mary Howell has said, Staub’s work on peer intervention challenges us “to think about how to be better people and how to not be silent.”

Copyright © 2020, Sheppard Mullin Richter & Hampton LLP.

See the National Law Review Civil Rights law page for similar topics.

What Do Colleges and Universities Need to Know About the Executive Order and Title VI?

On Dec. 11, 2019 President Trump issued an Executive Order (EO) stating that, “It shall be the policy of the executive branch to enforce Title VI [of the Civil Rights Act of 1964] against prohibited forms of discrimination rooted in anti-Semitism as vigorously as against all other forms of discrimination prohibited by Title VI.”

This has created a good bit of confusion, with media outlets reporting that the EO “redefines” Judaism as a nationality or ethnicity. Not so. So what does the EO do? What, if anything, is new about it? And how will it affect U.S. colleges and universities that receive federal funding?

Title VI prohibits discrimination on the basis of race, color and national origin in programs and activities that receive federal funding. Applying Title VI to Jewish students is not new. National origin discrimination has been interpreted for years to include discrimination against those who have shared ancestry or ethnicity, to protect religious groups such as Jews, Sikhs and Muslims.

What is new is that the EO directs executive branch agencies and departments charged with enforcing Title VI to consider the International Holocaust Remembrance Alliance’s (IHRA) definition of anti-Semitism when investigating allegations of anti-Jewish discrimination (i.e., when they review an Office of Civil Rights (OCR) complaint).

The IHRA definition, which has been adopted by the U.S. State Department, provides that:

Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities[.]

The definition includes a list of non-exhaustive examples of anti-Semitism, which the EO also directs agencies to consider. For example: “[m]aking mendacious, dehumanizing, demonizing, or stereotypical allegations about Jews as such or the power of Jews as collective—such as . . . the myth about a world Jewish conspiracy or of Jews controlling the media, economy, government or other societal institutions.”

Examples also include discrimination against Jewish individuals who support Israel, e.g., “[a]ccusing Jewish citizens of being more loyal to Israel, or to the alleged priorities of Jews worldwide, than to the interests of their own nations” or “[d]enying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor[.]”

In other words, discriminatory conduct directed at Jewish students who support Israel may constitute anti-Semitism.

Some argue the EO conflicts with the First Amendment, although the EO expressly states that agencies “shall not diminish or infringe upon any right protected under Federal law or under the First Amendment.” Simply put, neither Title VI nor the EO limits speech (or even hate speech); it limits conduct. The perpetrator’s speech may be used as evidence of discriminatory intent.

Universities and colleges will need to carefully consider the impact of the EO in reviewing student complaints.

© 2020 BARNES & THORNBURG LLP

For more on Title VI, see the National Law Review Civil Rights type-of-law section.

U.S. Women’s National Soccer Team Wins Class Certification in Equal Pay Fight

A federal court has ruled that the U.S. Women’s National Soccer Team’s (USWNT) equal pay claims under Title VII of the 1964 Civil Rights Act can move forward as a class action, as opposed to myriad individual cases.

As part of its decision, the court also allowed the USWNT’s Equal Pay Act (EPA) case to proceed as a collective action.

Factual background

Earlier this year, the USWNT players filed a complaint in federal court against their employer, the USSF. The lawsuit alleges that USSF violated the EPA and Title VII by, among other things, paying the women’s team less than the men’s team for doing equal work.

Equal Pay Act and Title VII Legal Frameworks To Prove Wage Discrimination

To win their EPA case, the USWNT must first prove a prima facie case under the EPA. The team can do so by showing:

  • the employer pays different wages to employees of the opposite sex;
  • the employees perform equal work on jobs requiring equal skill, effort, and responsibility; and
  • the jobs are performed under similar working conditions

If the USWNT establishes a prima facie case, the burden shifts to the USSF to establish one of four affirmative defenses: (1) that the pay difference is due to a seniority system, (2) a merit system, (3) a system that measures quantity or quality of production, or (4) “any factor other than sex.”

If the USSF makes this showing, the USWNT can still win if it shows that the USSF’s justification for the pay disparity was a pretext.

Title VII also makes it illegal to discriminate based on sex in pay and benefits, which is why the USWNT is also suing USSF under this law. Title VII prohibits discrimination in compensation and other terms and conditions of employment, so it has a broader reach than the EPA (and also outlaws, among other things, discrimination based on race, religion, and other protected characteristics).

The USWNT Argues That, Despite Their Better Results, They Are Paid Less For Equal Work

The USWNT’s complaint contains evidence and statistics supporting their argument that the USSF has unlawfully paid them less than the men’s soccer team. For example, the complaint alleges:

The USWNT is the preeminent women’s soccer team in the world and has contributed to the finances and reputation of the USSF at least as much as the USMNT. The complaint lists three World Cup titles (which is now four titles), four Olympic gold medals, and asserts that the USSF revised its projected earnings for 2016 from a net loss of $429,929, to a net gain of $17.7 million, because of the successes of the USWNT, particularly at the 2015 World Cup.

The USSF pays the women’s team less than the men’s team, despite requiring players on both teams to perform the same job duties that require equal skill, effort and responsibilities performed under similar working conditions. The complaint states that the women’s team players spend more time practicing, playing, and promoting the USSF than the men’s team does; indeed, from 2015 to 2018, the USWNT played in nineteen more games than the USMNT.

In addition, the complaint asserts that from 2013 to 2016, the USSF paid USWNT players $15,000 for trying out and making the World Cup team. Yet the USSF paid USMNT players $55,000 for making the team.

Similarly, in 2014, the USSF paid the USMNT more than $5.3 million in bonuses after their World Cup loss in the Round of 16. While in 2015, the USSF paid the USWNT only $1,725,000 in bonuses after they won the World Cup.

Finally, the USWNT received less favorable training and travel conditions, as well as reduced marketing for their games. For example, in 2017, USSF chartered private planes for USMNT travel at least seventeen times, but zero times for the USWNT.

USSF’s Potential Defenses

To rebut these claims, the USSF might argue that its legitimate, non-discriminatory reason for paying USWNT players less than USMNT players is that the men’s team generates more revenue for USSF than the women’s team, which accounts for the difference in pay.  The USSF denies the allegations in the USWNT’s complaint.

According to a report, however, this may not be accurate. That is, between 2016 and 2018, USWNT games generated about $50.8 million, compared with $49.9 million for USMNT games.

Currently, player compensation is not directly linked to money generated by the team in ticket sales, brand deals, and other promotional activity. The USWNT’s complaint refers to 2016 negotiations with the USSF in which the USWNT’s union offered to enter a revenue-sharing model. Under this model, player compensation would increase in years in which the USSF derived more revenue from USWNT activities and decrease in years when it earned less from USWNT’s activities. USSF rejected the offer, according to the complaint.

© 2019 Zuckerman Law

ARTICLE BY Eric Bachman of Zuckerman Law.
For more employment and other litigation outcomes, see the National Law Review Litigation & Trial Practice law page.

EEOC Provides Guidance on Reporting Non-Binary Gender Employees

Over the last few years, many employers have implemented diversity and inclusion programs, whether official or unofficial, emphasizing a work force that includes a wide variety of individuals based on, among other categories, race, gender, and sexual orientation.

Internally, companies have updated employment policies, expanded the scope of anti-harassment trainings, created avenues for diverse mentorship, and implemented changes to create workplaces that include and support a diverse office culture.

Externally, a number of states too have begun to update government documents to accommodate diverse individuals, including those who identify their gender as non-binary. For example, California recently enacted legislation permitting individuals to identify as female (F), male (M), or non-binary (X) on their drivers’ licenses.

Yet many employers with non-binary employees have been concerned as to how to appropriately report all of their employees on the federal EEO-1 reports and still comply with the law. As we previously reported, in 2017, the EEOC made it clear that the protections offered by Title VII include an “individual’s transgender status or the individual’s intent to transition,” “gender identity,” and “sexual orientation.”

The EEOC guidance also 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.  It is clear, therefore, that non-binary individuals must be afforded protections regarding their gender identity.  However, the EEO-1 report, which requires employers with over 100 employees to submit data specific to their employees’ gender and race/ethnicity, limits the gender categories to either male or female.  Employers with non-binary employees therefore have had no category to indicate the correct gender identity of these individuals, and several questioned whether it was appropriate (or even legally compliant) to request that non-binary employees choose a marker for which they do not identify.

Last month, the EEOC offered guidance by updating its Frequently Asked Questions to address this issue.  In the FAQ, the EEOC advises that employers “may report employee counts and labor hours for non-binary gender employees by job category and pay band and racial group in the comment box on the Certification Page,” and further provides examples as to how employers may comply with submitting the EEOC-required data in the future for those employees who identify as non-binary.

While describing these details in a comment box as opposed to checking a pre-marked gender identity box is not as streamlined or efficient as some employers would have hoped, it is at least a step toward ensuring that employers have a means to comply with reporting requirements and support their employees by acknowledging the gender identity of their choice.

© 2019 Foley & Lardner LLP

For more on diversity in the workplace, see the National Law Review Labor & Employment law page.

OFCCP Proposes New Rule to “Ensure Religious Employers are Protected”

As previewed in the Spring regulatory agenda, the Office of Federal Compliance Contract Programs (OFCCP) has proposed a new rule to clarify aspects of a religious exemption available to federal contractors. In the proposed rule, the agency said it intends to address concerns from religious organizations that ambiguity in the exemption left them reluctant to participate in federal contracts.

The proposed rule was published August 15 in the Federal Register. OFCCP will accept public comments on the rule for 30 days, until September 16, 2019.

The rule would clarify the religious exemption in Executive Order 11246, which includes anti-discrimination obligations for federal contractors. The exemption allows religious organizations to prefer individuals of a particular religion, while still requiring adherence to other anti-discrimination provisions. The rule comes one year after OFCCP issued a Directive reminding its staff to tread lightly when dealing with religious contractors and “proceed in a manner neutral toward and tolerant of . . . religious beliefs.”

As proposed, the rule would clarify that:

  • The exemption covers “not just churches but employers that are organized for a religious purpose, hold themselves out to the public as carrying out a religious purpose, and engage in exercise of religion consistent with, and in furtherance of, a religious purpose.”

  • Religious employers can condition employment upon acceptance of, or adherence to, a religious tenet, provided that they do not discriminate based on other protected bases.

  • Define terms such as “Religion,” “Particular Religion,” and religion “As understood by the employer.”

The rule does not explicitly mention sexual orientation or LGBTQ protections. However, it does cite Masterpiece Cakeshop, the recent U.S. Supreme Court decision involving a business owner’s decision to deny service to gay customers based on the owner’s religious beliefs.  In a news release, OFCCP said it considered that case while drafting the rule, in addition to other Supreme Court cases, statutes, and executive orders.

Today’s proposed rule helps to ensure the civil rights of religious employers are protected,

said Patrick Pizzella, acting U.S. Secretary of Labor.

“As people of faith with deeply held religious beliefs are making decisions on whether to participate in federal contracting, they deserve clear understanding of their obligations and protections under the law.”

The proposed rule also comes at the same time it has been reported by Bloomberg Law that the Department of Justice and EEOC are seemingly taking differing positions on LGBTQ rights before the Supreme Court.

Jackson Lewis P.C. © 2019
For more on religious protections, see the National Law Review Civil Rights page.

Seventh Circuit Breaks New Ground: Sexual Orientation Discrimination Prohibited by Title VII

sex discrimination seventh circuitIn a landmark decision reflecting a potential turning of the tide for the LGBT community, the U.S. Court of Appeals for the Seventh Circuit has become the first federal appeals court in the nation to hold that discrimination on the basis of sexual orientation is a form of sex discrimination prohibited by Title VII. Hively v. Ivy Tech Community College of Indiana, No. 3:14-cv-1791 (7th Cir. April 4, 2017).

Last July, a panel of the Seventh Circuit affirmed dismissal of the sexual orientation discrimination claim of Kim Hively, a lesbian who claimed she was denied promotions and a full-time position due to her sexual orientation. (See Seventh Circuit: Title VII Offers No Protection Against Sexual Orientation Discrimination.) The Seventh Circuit voted to rehear the case en banc. Yesterday’s decision followed.

The Seventh Circuit began by observing that the question is not whether the court can, or should, add a new category of protection to Title VII, as that is beyond its authority.  Instead, the court viewed itself as charged with interpreting the existing language of Title VII, specifically, whether discrimination based on “sex” includes sexual orientation.

The court considered a number of interpretive aids. It cited the U.S. Supreme Court’s blessings on expansion of traditional sex discrimination claims in such cases as Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986), which expanded the law to include sexual harassment, Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998), expanding the law to include same-sex harassment, Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), expanding the law to include discrimination based on gender non-conformity, and Obergefell v. Hodges, 135 S.Ct. 2584 (2015), upholding the right of same-sex couples to marry. The Seventh Circuit noted that the Congress that enacted Title VII in 1964 may not have envisioned the necessity of these protections at the time, but nonetheless, experience has since caused the Supreme Court to recognize them as forms of prohibited sex discrimination.

The court also cited other Supreme Court decisions favoring sexual orientation-based protections, including Romer v. Evans, 517 U.S. 620 (1996), holding that a provision of the Colorado Constitution forbidding state government from taking action designed to protect “homosexual, lesbian, or bisexual” persons, violated the federal Equal Protection Clause; Lawrence v. Texas, 539 U.S. 558 (2003), wherein a Texas statute criminalizing homosexual sex between consenting adults violated the federal Due Process Clause; and United States v. Windsor, 133 S.Ct. 2675 (2013), striking down the Defense of Marriage Act’s exclusion of same-sex partners from the definition of “spouse.”

Ivy Tech argued that Congress has repeatedly considered—and refused—to add “sexual orientation” to the language of Title VII, and that should be interpreted as Congress’ intent to exclude it. This argument has been recited by numerous federal appellate courts in denying Title VII coverage to such claims. However, the Seventh Circuit noted that the legal landscape has changed over the years, and the Supreme Court has shed more light on the scope of the statute through its decisions, and for these reasons, the court was unable to draw any reliable inference from the failed “truncated legislative initiatives” in Congress.

As to the existence of the significant contrary authority, the court stated: “[T]his court sits en banc to consider what the correct rule of law is now in light of the Supreme Court’s authoritative interpretations, not what someone thought it meant one, ten, or twenty years ago.” The court reversed dismissal of Hively’s claim and remanded the case to the district court.

Inevitable Result, Uncertain Future

With the landslide of litigation in the courts seeking protections for the LGBT community, it may have been inevitable that one of the federal circuit courts hearing such a case would eventually rule in favor of Title VII protection from sexual orientation discrimination. Indeed, numerous recent decisions that have refused to recognize such protections have acknowledged the untenable results that have come to pass in so holding. The Seventh Circuit’s decision recognized: “It would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.’ The effort to do so has led to confusing and contradictory results…”

Indeed, many courts in other jurisdictions continue to find creative ways to allow sexual orientation-based claims to proceed despite the legal roadblock, including most recently, the Second Circuit’s decision last week that allowed a gay advertising executive to proceed with his Title VII claims based on gender non-conformity as opposed to sexual orientation. Christiansen, et. al. v. Omincom Group, Inc., 2017 WL 1130183 (2nd Cir. March 27, 2017).

With yesterday’s ruling, the Seventh Circuit has created a split in the federal circuit courts, making this issue ripe for U.S. Supreme Court determination. The country likely will receive uniform interpretation of Title VII on this issue from the Supreme Court at some point. Until then, the law in this area is truly a mixed bag. Employees in the Seventh Circuit have an additional cause of action to bring under Title VII, and employers in this jurisdiction may see a rise in these claims in the near term. For most employers outside the Seventh Circuit, employees are barred from pursuing sexual orientation bias claims under Title VII.  However, alternate theories may be advanced, such as the plaintiff successfully did in the Second Circuit case. In addition, many state laws include sexual orientation protections.

While the law of the land is unsettled, one thing remains clear: employers that uphold principles of equal opportunity and fairness, and merit-based employment rewards, will fare the best.

ARTICLE BY Julie Furer Stahr of Schiff Hardin LLP

© 2017 Schiff Hardin LLP

EEOC Issues Guidance on National Origin Discrimination that Applies to Foreign National Employees

EEOC, National Origin DiscriminationThis week the Equal Employment Opportunity Commission (“EEOC”) released guidance regarding national origin discrimination under Title VII of the Civil Rights Act of 1964 (Title VII).  The guidance replaces Section 13 of the EEOC’s compliance manual, with a view toward further defining “national origin” and helping employers and employees understand their legal rights and responsibilities. The guidance specifically states that Title VII applies to any worker employed in the United States by a covered employer (employer with more than four employees), regardless of immigration status, as well as any foreign national outside the United States when they apply for U.S.-based employment.

The new guidance defines “national origin” as an individual’s, or his or her ancestors’, place of origin, which can be a country (including the United States), a former country, or a geographic region.  In addition, “national origin” refers to an individual’s national origin group or ethnic group, which it defines as “a group of people sharing a common language, culture, ancestry, race, and/or other social characteristics.”  Discrimination based on national origin group includes discrimination because of a person’s ethnicity (e.g., Hispanic) or physical, linguistic, or cultural traits (e.g., accent or style of dress).  Discrimination based on place of origin or national origin group includes discrimination involving a mere perception of where a person is from (e.g., Middle Eastern or Arab), association with someone of a particular national origin, or citizenship status.  Title VII discrimination can take the form of unfavorable employment decisions based on national origin or harassment so pervasive or severe that it creates a hostile work environment.

In addition to clarifying the meaning of “national origin,” the guidance provides examples based on how actual courts have applied Title VII to specific facts.  For example, the guidance gives as an example of “intersectional” discrimination a Mexican-American woman who, without explanation, was denied a promotion at a company where she successfully worked for 10 years, despite two non-Mexican women and a Mexican man being selected for the same position.  The guidance also provides examples where national origin discrimination overlaps with other protected bases, such as discriminating against people with origins in the Middle East due to a perception that they follow certain religious practices.  Further, the guidance gives examples of real cases where employment decisions and harassment constituted Title VII national origin violations, as well as cases where Title VII violations were not found.  Finally, the guidance applies Title VII national origin principles to trafficking cases, where employers use force, fraud, or coercion to compel labor or exploit workers, and such conduct is directed at an individual or a group of individuals based on national origin.

Employers of foreign national workers should note that individuals with Title VII claims may also have claims under other Federal statutes, including the anti-discrimination provision of the Immigration and Nationality Act (INA).  Form I-9 and the E-Verify program are two areas where discrimination claims could arise under both the INA and Title VII.

ARTICLE BY Kristin Aquino-Pham of Greenberg Traurig, LLP

©2016 Greenberg Traurig, LLP. All rights reserved.

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.

ARTICLE BY Christine McLaughlin of Godfrey & Kahn S.C.

Copyright © 2016 Godfrey & Kahn S.C.