civil rights Archives - Page 4 of 4 - The National Law Forum

International Women’s Day 2016: Time is Now for Global Gender Equality and to (finally) Close Gender Gap

Today is International Women’s Day. Each year on March 8^th, women celebrate the progress we’ve made while continuing to advocate for change regarding gender equality and women’s rights. Around the world, celebrations range from very simple demonstrations of respect, appreciation and love towards women to elaborate events that honor our economic, political and social achievements.

International Women’s Day is believed to have originated on March 8, 1908. On that day, thousands of women marched through the streets in New York City publicly calling for better working conditions, higher pay and the right to vote. The first National Women’s Day was held the following year. In 1910, women from around the world gathered in Denmark for the second International Conference of Working Women, where the idea for International Women’s Day was proposed. As a result, the first international celebration was held one year later in 1911.

This year’s theme is “Pledge for Parity”. The “Pledge for Parity” calls for complete gender equality and the closing of the gender gap in social, economic, political, and other situations. In light of this year’s theme, let’s look at some of the recent statistics regarding gender equality.

According to US Aid around the world:

Approximately 62 million girls are not in school.
One in three women will experience gender-based violence in her lifetime.
In the developing world, one in seven girls is married before her 15^th birthday.
Although constituting 40 percent of the agriculture labor force, only 3 to 20 percent of women are landowners.

On March 3, 2016, the Economist published its “glass-ceiling index” listing the countries where women have the best chance of equal treatment at work. The Nordic countries of Iceland, Norway, Sweden and Finland were ranked 1-4. Interestingly, in these countries, women are present in the labor force at rates similar to men. For example, in Iceland, women have 44% of the seats on listed-company boards. By way of comparison, the U.S. and Great Britain are ranked 20^th and 25^th respectively. Japan, Turkey and South Korea were the three lowest-ranked countries of the 30 countries in the list.
In February 2016, a white paper by the Peterson Institute for International Economics presented the results of a global survey of 21,980 firms from 91 countries. The survey found that approximately 60 percent of respondents (13,017 firms) did not contain any recorded female board members. Additionally, over 50 percent of the firms (11,802 firms) did not contain any female executives. Of the remaining half, 57 percent had only one female executive. Only 945 firms, less than 5 percent, had a female chief executive officer. These statistics are alarming in view of the paper’s conclusion that the presence of women in corporate leadership has been shown to improve firm performance. Specifically, the paper noted that the presence of women in corporate leadership was positively correlated with firm characteristics such as size, the absence of discriminatory attitudes toward female executives and the availability of paternity leave.
The results of the survey described in the white paper by the Peterson Institute were not terribly surprising in view of the 2015 Women in the Workplace report published by Lean In and McKinsey & Company. Sadly, the report noted that women remain under-represented at every level in the corporate pipeline and that women continue to face greater barriers to advancement and a steeper path to senior leadership. While the report showed that women leave organizations at most levels at a lower rate than men, it also showed that women advance far more slowly from one level to the next. The report noted that the uneven playing field between men and women has taken a toll on women in leadership. According to the report, senior-level women are markedly less satisfied with their role, opportunities for advancement and career than their male counterparts. Bottom line, according to Sheryl Sandberg, COO of Facebook and Co-Founder of LeanIn.org, at the current rate, it will take more than 100 years for women to reach equality in the workplace. Moreover, Ms. Sandberg said, “If NASA launched a person into space today, she could soar past Mars, travel all the way to Pluto and return to Earth 10 times before women occupy half of C-suite offices. Yes, we’re that far away.”
According to UN Women:

As of August 2015, only 22 percent of all national parliamentarians were women (in contrast to 11.3 percent in 1995).
As of August 2015, there were only 11 women serving as Heads of State and 10 as the Head of a Government.
There are wide variations in the average percentages of women parliamentarians throughout the world across all chambers (single, lower and upper houses). For example, as of August 2015, the number of women parliamentarians was 41.1 percent in the Nordic countries, 25.5 percent in the Americas, 24.4 percent in Europe (excluding the Nordic countries), 23.0 percent in sub-Saharan Africa, 18.4 percent in Asia, 17.1 percent in the Middle East and North Africa, and 15.7 percent in the Pacific.

After reviewing and digesting the above statistics, I believe it is very easy to become frustrated (and even angry) with the slow pace at which women are achieving global gender equality. After all, isn’t increasing gender equality about harnessing the talent, creativity, emotional intelligence, courage, compassion and passion that women have to ensure a better world and future for everyone? When viewed that way – eliminating the gender gap isn’t just the right thing to do – it’s the smart and economically sensible thing to do.

Many of us, myself included, tend to look at women in positions of power and influence (such as Sheryl Sandberg, Melinda Gates, etc.) to lead the way in championing the changes needed to achieve global gender equality. However, it simply is not enough. Each one of us needs to take personal responsibility to do what we can push for change and advance gender equality. Quite frankly, at this stage, no effort is too small. So what can you do? Consider volunteering or donating to organizations that are dedicated to helping educate girls or women around the world (such as CARE, Global Fund for Women, Girls Education International and 60 Million Girls).

Build your confidence and eliminate your fear of speaking up or of “leaning in”. Don’t be afraid to take risks and work on promoting yourself. However, at the same time, be supportive and encouraging of other women and help them to build their confidence and promote themselves. As Madeline Albright said at the Celebrating Inspiration luncheon with the WNBA’s All-Decade Team in 2006, “There is a special place in hell for women who don’t help other women.”

Consider becoming an entrepreneur. If entrepreneurship is not for you, then support a female-owned start-ups and local businesses.

Become a mentor. Women need mentors. Women need that supportive advocate who guides and says, “Don’t give up. Stay the course”. A mentor is critical because it is that person you can have a frank conversation with who will listen to your tough questions and give you honest answers.

Encourage your employer to build a workplace of inclusion and respect. Studies have shown that workplaces that openly communicate their values and strategies on equality, human rights and inclusion, are able to attract a wider pool of talent and have greater success in retaining staff. As such, women should not be afraid to encourage human resource initiatives that promote gender quality such as increasing the number of female hires, providing flexible work schedules and options for working at home. We should not be afraid to use the avenues within our institutions to voice our concerns in an attempt to hold senior leadership accountable for failing to actively and aggressively promote gender equality, such as by using employee surveys, team and all-employee meetings, etc.

“A woman with a voice is by definition a strong woman. But the search to find that voice can be remarkably difficult.” – Melinda Gates

Article By Lisa L. Mueller of Michael Best & Friedrich LLP

Illinois: Transgender Locker Room Policy Eludes School District Facing Government Sanctions Under Title IX

An Illinois school district has violated anti-discrimination laws by not allowing a transgender student who identifies as female and is on her high school’s girls’ sports team to change and shower in the girls’ locker room, the United States Department of Education Office of Civil Rights (“OCR”) has held.

The OCR released its findings on November 2, 2015, after completing an extensive investigation of a complaint for unlawful discrimination under Title IX of the Education Amendments of 1972 filed by a transgender female high school student against the Township High School District 211 in Palatine, Illinois. Title IX prohibits discrimination on the basis of sex in any federally funded education program or activity. An entity in violation of Title IX may lose some or all of its Title IX funding.

Schools districts, colleges, and private employers are increasingly at risk of transgender discrimination charges or complaints under laws enforced by the OCR, the Equal Employment Opportunity Commission, the Department of Labor, the Department of Justice, and the Occupational Safety and Health Administration as these agencies develop their policies on transgender issues.

The EEOC, the DOL, and the DOJ have interpreted Title VII of the Civil Right Act’s prohibitions on sex discrimination to bar employment discrimination based on gender identity.

On the employment front, in the seven months between October 2014 and April 2015, EEOC received 505 charges based on sexual orientation discrimination and 112 charges based on gender identity. Moreover, the EEOC’s Strategic Enforcement Plan for 2012-2016 includes the investigation and enforcement of LGBT (lesbian, gay, bisexual, and transgender) sex stereotyping claims .

Further, effective April 2015, the DOL’s Office of Federal Contract Compliance Programs requires federal contractors subject to Executive Law 11246 to allow transgender employees to use the restroom and other facilities consistent with their gender identity (See article DOL Releases Regulations Extending Protections to Lesbian, Gay, Bisexual, and Transgender Employees, Applicants).

Finally, the OSHA guidelines require all employers under its jurisdiction to provide a “safe and healthy working environment for all employees” and transgender employees “should have access to restrooms that correspond to their gender identity.”

OSHA recommends that companies should implement written policies to ensure that all employees have “prompt access to appropriate sanitary facilities.” The agency’s best practices guide also recommends providing options from which a transgender employee may choose. These can include single-occupancy gender-neutral facilities and the use of multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls (See article Restroom Access Should Be Consistent with Employee’s Gender Identity, OSHA Says).

Background

The Township High School District 211 denied a transgender female student access to three separate girls’ locker rooms (“LR”) (including the Physical Education (“PE”) LR, the PE Swim LR, and the Athletics LR). The Student alleged the District discriminated against her based on sex by denying her access to the girls’ locker rooms because of her gender identity and gender non-conformity.

OCR Decision

The OCR found the District violated Title IX for excluding the Student from participation in and denying her the benefits of its education program, providing services to her in a different manner, subjecting her to different rules of behavior, and subjecting her to different treatment on the basis of sex.

“The evidence shows that as a result of the District’s denial of access to the girls LRs, Student A has not only received an unequal opportunity to benefit from the District’s educational program, but also has experienced an ongoing sense of isolation and ostracism throughout her high school enrollment.”

Other than access to the female locker rooms, the OCR found the District treated the Student consistently with her gender identity, including identifying her by her female name and with female pronouns, providing her with full access to girls’ restrooms and allowing her to participate in girls’ sports.

Alternatives Not Acceptable

The District argued it offered the Student alternative changing options, such as permitting her to change with several female friends in an alternative restroom closer to the PE gym and offering her another restroom near the Swim LR.

The OCR found that the alternatives “continued or would continue to exclude [the Student] from the girls’ locker rooms and set her apart from her female classmates and teammates,” particularly as some of the proposed alternative facilities were not comparable to those provided for other girls.

For example, unlike the other female students who used the PE class swim unit, the Student had access only to a rinse shower and was not able to dry her hair because there was no electrical outlet. Furthermore, by not having access to the PE locker room, she was subjected to stigma and different treatment, OCR said, because she occasionally had been late to class or missed class announcements that were made in the girls’ locker room.

Finally, as a result of being denied access to the girls Athletics LR, the Student felt excluded from the team because she missed the informal huddle in the LR before matches, locker room “girl talk,” and the female bonding in the LR. According, the OCR concluded the District denied the Student’s Title IX rights.

Privacy Concerns Unavailing

While acknowledging that it denied the Student access to the female locker rooms, the District argued that it had to balance the Student’s rights and interests with two distinct privacy concerns of other female students:

the need to protect female students from “being observed in a state of undress by a biologically male individual,” and
the “inappropriateness of allowing young female students to view a biologically naked male in the locker room in a state of undress.”

The OCR found both of these arguments unpersuasive as the District had installed five showers with privacy curtains and five restroom stalls in the girls PE LR, but had not provided private changing areas in the other two LRs.

“The District’s installation and maintenance of privacy curtains in one locker room go a long distance toward achieving such a nondiscriminatory alternative because providing sufficient privacy curtain access to accommodate any students who wish to be assured of privacy while changing would allow for protection of all students’ rights in this context. Those female students wishing to protect their own private bodies from exposure to being observed in a state of undress by other girls in the locker rooms, including transgender girls, could change behind a privacy curtain.”

Given the Student’s willingness to change privately, the OCR said, the District could have provided equal access to all three LRs if it installed additional privacy curtains for any student that wanted privacy.

Takeaways

Federal government agencies are increasingly examining the purported protections afforded to transgender students and employees, in both the public and private sectors. How to handle transgender issues is still a work-in-progress for the agencies and the entities they regulate. In this case, despite the District’s accommodations and options to provide equal treatment to the Student in all respects other than access to the Locker Room, the OCR nevertheless held its efforts were insufficient. Moreover, states also have laws protecting LGBT individuals (See article Utah Governor Signs Landmark LGBT and Religious Expression Anti-Discrimination Bill).

The following steps can help lower the risk of being under government scrutiny:

closely review and revise EEO (equal employment opportunity), harassment, and transgender policies;
ensure proper sensitivity training of administrators, faculty, and students to foster diverse and inclusive primary, secondary school, and campus environments to avoid stigmatizing transgender students; and
ensure that accommodations for transgender students and employees provide equal access in all respects, as well as balance privacy concerns.

Because of the complexities involved in this area, school districts, colleges, and private sector employers would be well-served to regularly review their policies and practices with counsel to ensure they address specific organizational needs effectively and comply with applicable law.

Article By Michelle E. Phillips, Bethany Swaton Wagner & Gregg E. Clifton of Jackson Lewis P.C.

Philadelphia Enacts Pregnancy Accommodation Law

An amendment to the city’s ordinance enhances protections for nondisabled employees affected by pregnancy or childbirth and imposes greater accommodation requirements on employers.

On January 20, Philadelphia Mayor Michael Nutter signed an amendment^[1] to the city’s Fair Practices Ordinance (Chapter 9-1100 of The Philadelphia Code), expressly banning discrimination based upon pregnancy, childbirth, or a related medical condition and imposing new workplace accommodation requirements on Philadelphia employers. The amendment places Philadelphia among a growing number of jurisdictions that require employers to provide workplace accommodations to employees who are “affected by pregnancy,” regardless of whether those employees are “disabled.”

Impact of the Amendment

Unlike its federal and state counterparts—the Pregnancy Discrimination Act, the Americans with Disabilities Act, and the Pennsylvania Human Relations Act—Philadelphia’s amended ordinance actually compels employers to make reasonable workplace accommodations for female employees “affected by pregnancy”—i.e., women who are pregnant or have medical conditions relating to pregnancy or childbirth—regardless of whether those employees have been “disabled” by the pregnancy. The ordinance identifies a number of possible accommodations that may be required, including restroom breaks, periodic rest for those whose jobs require that they stand for long periods of time, special assistance with manual labor, leave for a period of disability arising from childbirth, reassignment to a vacant position, and job restructuring.

This new law imposes a significant burden on employers, requiring that they grant the requested accommodations unless doing so would impose undue hardship on the operation of the employers’ businesses. The factors to be considered in the undue hardship analysis include the following: (a) the nature and cost of the accommodations; (b) the overall financial resources of the employer’s facility or facilities involved in the provision of the reasonable accommodations, including the number of persons employed at such facility or facilities, the effect on expenses and resources, or the impact otherwise of such accommodations upon the operation of the employer; (c) the overall financial resources of the employer, including the size of the employer with respect to the number of its employees and the number, type, and location of its facilities; and (d) the type of operation or operations of the employer, including the composition, structure, and functions of the workforce, and the geographic separateness or administrative or fiscal relationship of the facility or facilities in question to the employer.

Perhaps the most significant aspect of the amendment is that it extends privileges to employees affected by pregnancy that are unavailable to other employees, including many disabled employees. For example, the law requires an employer to consider job reassignment and job restructuring for pregnant employees, even though these types of accommodations are generally not required for disabled employees under state or federal law. As such, employers with operations in Philadelphia (along with those in other jurisdictions that have recently passed heightened pregnancy accommodation laws like California,^[2]Maryland,^[3] New Jersey,^[4]and New York City^[5]) should revisit their existing reasonable accommodation policies to ensure that they are providing required accommodations for pregnant workers—even those who are healthy and not incapacitated by the pregnancy.

From a litigation perspective, the law specifies the affirmative defenses that will be available to employers facing claims under the amended ordinance. In addition to the undue-burden defense described above, an employer will have an affirmative defense if it can show that the employee “could not, with reasonable accommodations, satisfy the requisites of the job.” This language is important because it will allow employers to continue managing the performance of pregnant workers who, even with accommodation, simply cannot perform their jobs. Nonetheless, the impact of this affirmative defense remains to be seen given the amendment’s language suggesting that job restructuring and reassignment may be required accommodations.

Employees aggrieved by a violation of the amended ordinance are entitled to the same remedies that are available for other unlawful employment practices—including injunctive or other equitable relief, compensatory damages, punitive damages, and reasonable attorney fees. Additionally, certain factual scenarios, such as a failure to properly respond to a request for accommodations (e.g., lactation breaks or nursing an infant), may trigger a pregnancy accommodation cause of action, as well as causes of action under the Fair Labor Standards Act and/or Title VII.^[6]

As mentioned above, the amendment places Philadelphia squarely in the middle of a significant legislative trend that has been gaining momentum. In the last 18 months, California, Maryland, New Jersey, and New York City have passed similar pregnancy accommodation laws. Several other jurisdictions are, or will soon be, considering comparable legislation. The West Virginia House of Representatives unanimously passed a similar bill on February 5, 2014, and Pennsylvania legislators announced in December 2013 that they will be introducing Pennsylvania’s Pregnant Workers Fairness Act in the near future. In addition, a federal version of the Pregnant Workers Fairness Act was introduced in the U.S. Senate in May 2013 but stalled in committee. Several other states—including Alaska, Connecticut, Hawaii, Illinois, Louisiana, Michigan, New Hampshire, and Texas—already require some type of pregnancy accommodation.

Notice Requirement

The new law requires that Philadelphia employers provide written notice—in a form and manner to be determined by the Philadelphia Commission on Human Relations—by April 20, 2014. The notice must be posted conspicuously in an area accessible to employees.

Moving Forward

For employers with operations in Philadelphia, the amendments to the Fair Practices Ordinance may signal that now is the time to revisit or revamp employee handbooks and train human resources and benefits employees on the new requirements in this area. Specifically, the amended ordinance will require most Philadelphia employers to overhaul their reasonable accommodation policies and train human resources professionals and managers regarding when the interactive process is triggered for employees affected by pregnancy, what steps must be followed to ensure effective engagement in that process, and when accommodations must be granted for such employees.

_{[1]. View the amendment here.}

_{[2]. See our December 28, 2012 LawFlash, “New California Disability Regulations to Become Effective December 30,” available here.}

_{[3]. See our July 1, 2013 LawFlash, “Maryland Enacts Three New Employment Laws,” available here.}

_{[4]. See our January 10, 2014 LawFlash, “New Jersey Assembly Passes Pregnancy Discrimination Bill,” available here, and our January 27, 2014 LawFlash, “New Requirements for New Jersey Employers,” available here.}

_{[5]. See our September 27, 2013 LawFlash, “New York City Offers Greater Protections for Pregnant Workers,” available here.}

_{[6]. See our June 12, 2013 LawFlash, “New Developments Surrounding Lactation Discrimination,” available here.}

Article by:

Sean P. Lynch

Of:

Morgan, Lewis & Bockius LLP

January 6, 2014 Deadline For Employers To Comply With New Jersey Gender Equity Notice And Posting Requirements

Beginning Monday, January 6, 2014, employers with fifty (50) or more employees are required to comply with the New Jersey Gender Equity posting and notice requirements. The New Jersey law, passed in September of 2012, requires that all covered employers (1) post a notice regarding gender equity in a conspicuous place accessible by all employees, (2) provide a copy of the notice to all employees annually, and (3) receive a signed acknowledgment from the employees each year.

Posting

The New Jersey Department of Labor has issued a poster which is now available here in English and here in Spanish. Employers must post this notice in a conspicuous place at each New Jersey work location by January 6, 2014. In the event that a covered employer has an internet site or intranet site for exclusive use by its employees, and all employees have access to the site, the employer may post the notice on the website to satisfy the posting requirement.

Notice

The law requires that every employee receive a copy of the notice annually. For existing employees, the notice must be received by February 5, 2014. For all employees hired after January 6, 2014, the notice must be provided to the employee at the time of hire. Each year thereafter, all new hires must be provided with a notice at the time of hire and all other employees must receive the notice by December 31. Employees must also be provided a copy upon request. The employer may provide the notice in print, through email, or on the company internet/intranet if (1) the site is for the exclusive use of the employees, (2) can be accessed by all employees, and (3) the employer notifies the employees that the notice has been posted on the internet/intranet.

Acknowledgment

Within thirty (30) days of issuing the annual notice, the employee must acknowledge receipt and understanding of the notice. The acknowledgment can be in writing or by electronic verification. Employers must ensure that they follow-up with employees to confirm that the employee has received and understands the requirements each time the notice is issued.

Failure to comply with these requirements can result in monetary fines and other penalties.

Article by:

Saranne E. Weimer

Of:

Giordano, Halleran & Ciesla, P.C.

Pepsi to Pay $3.13 Million & Made Major Policy Changes to Resolve EEOC Finding of Nationwide Hiring Discrimination Against African Americans

Recently the National Law Review published an article by the U.S. Equal Employment Opportunity Commission regarding Hiring Discrimination by Pepsi towards African-Americans:

Company’s Former Use of Criminal Background Checks Discriminated Based On Race, Agency Found

MINNEAPOLIS – Pepsi Beverages (Pepsi), formerly known as Pepsi Bottling Group, has agreed to pay $3.13 million and provide job offers and training to resolve a charge of race discrimination filed in the Minneapolis Area Office of the U.S. Equal Employment Opportunity Commission (EEOC). The monetary settlement will primarily be divided among black applicants for positions at Pepsi, with a portion of the sum being allocated for the administration of the claims process. Based on the investigation, the EEOC found reasonable cause to believe that the criminal background check policy formerly used by Pepsi discriminated against African Americans in violation of Title VII of the Civil Rights Act of 1964.

The EEOC’s investigation revealed that more than 300 African Americans were adversely affected when Pepsi applied a criminal background check policy that disproportionately excluded black applicants from permanent employment. Under Pepsi’s former policy, job applicants who had been arrested pending prosecution were not hired for a permanent job even if they had never been convicted of any offense.

Pepsi’s former policy also denied employment to applicants from employment who had been arrested or convicted of certain minor offenses. The use of arrest and conviction records to deny employment can be illegal under Title VII of the Civil Rights Act of 1964, when it is not relevant for the job, because it can limit the employment opportunities of applicants or workers based on their race or ethnicity.

“The EEOC has long standing guidance and policy statements on the use of arrest and conviction records in employment,” said EEOC Chair Jacqueline A. Berrien. “I commend Pepsi’s willingness to re-examine its policy and modify it to ensure that unwarranted roadblocks to employment are removed.”

During the course of the EEOC’s investigation, Pepsi adopted a new criminal background check policy. In addition to the monetary relief, Pepsi will offer employment opportunities to victims of the former criminal background check policy who still want jobs at Pepsi and are qualified for the jobs for which they apply. The company will supply the EEOC with regular reports on its hiring practices under its new criminal background check policy. Pepsi will conduct Title VII training for its hiring personnel and all of its managers.

“When employers contemplate instituting a background check policy, the EEOC recommends that they take into consideration the nature and gravity of the offense, the time that has passed since the conviction and/or completion of the sentence, and the nature of the job sought in order to be sure that the exclusion is important for the particular position. Such exclusions can create an adverse impact based on race in violation of Title VII,” said Julie Schmid, Acting Director of the EEOC’s Minneapolis Area Office. “We hope that employers with unnecessarily broad criminal background check policies take note of this agreement and reassess their policies to ensure compliance with Title VII.”

“We obtained significant financial relief for a large number of victims of discrimination, got them job opportunities that they were previously denied, and eradicated an unlawful barrier for future applicants,” said EEOC Chicago District Director John Rowe. “We are pleased that Pepsi chose to work with us to reach this conciliation agreement and that through our joint efforts, we have been able to bring about real change at Pepsi without resorting to litigation.”

The EEOC enforces federal laws against employment discrimination. The EEOC issued its first written policy guidance regarding the use of arrest and conviction records in employment in the 1980s. The Commission also considered this issue in 2008 and held a meeting on the use of arrest and conviction records in employment last summer. The EEOC is a member of the federal interagency Reentry Council, a Cabinet-level interagency group convened to examine all aspects of reentry of individuals with criminal records.

The Minneapolis Area Office is part of the EEOC’s Chicago District. The Chicago District is responsible for investigating charges of discrimination in Minnesota, Illinois, Wisconsin, Iowa and North and South Dakota. Further information is available at www.eeoc.gov.

Second Circuit Finds that Employers May be Obligated to Accommodate a Disabled Employee's Commute

Posted in the National Law Review an article by attorneys James R. Hays, Jonathan Sokolowski and James R. Hays of Sheppard Mullin Richter & Hampton LLP regarding disabled employees and employers requirements to assist them:

The Second Circuit Court of Appeals has held that under the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act, employers may be required to assist disabled employees with their commute.

In Nixon-Tinkelman v. N.Y. City Dep’t of Health & Mental Hygiene, No. 10-3317-cv, 2011 U.S. App. LEXIS 16569 (2d Cir. N.Y. Aug. 10, 2011), plaintiff Barbara Nixon-Tinkelman (“Plaintiff”), who has cancer, heart problems, asthma, and is hearing impaired, brought suit under the ADA and the Rehabilitation Act alleging that the New York City Department of Health & Mental Hygiene (“Defendant” or “DOHMH”) failed to reasonably accommodate her disability. Specifically, following her transfer from Queens to Manhattan, Plaintiff requested that DOHMH accommodate her commute by transferring her back to an office location closer to her home in Queens. DOHMH ultimately denied Plaintiff’s request.

The Southern District of New York dismissed Plaintiff’s complaint on Defendant’s motion for summary judgment, finding that activities which “fall outside the scope of the job, like commuting to and from the workplace, are not within the province of an employer’s obligations under the ADA and the Rehabilitation Act.” However, on appeal, the Second Circuit faulted the district court’s holding, explaining that certain circumstances may require an employer to provide commuting assistance to a disabled employee, and furthermore, that providing such assistance is not “inherently unreasonable.” Accordingly, the Second Circuit remanded the case to the district court, and tasked it with engaging in the “fact-specific inquiry” necessary to determine whether it would have been reasonable to provide Plaintiff with a commuting accommodation. On remand, the Second Circuit directed the district court to consider the following factors: (a) Defendant’s total number of employees; (b) the number and location of Defendant’s offices; (c) whether other positions exist for which Plaintiff was qualified; (d) whether Plaintiff could have been transferred to a more convenient office without unduly burdening Defendant’s operations; and (e) the reasonableness of allowing Plaintiff to work from home without on-site supervision.

In addition to the above-listed factors, the Second Circuit also noted that the district court should have contemplated whether transferring Plaintiff “back to Queens or another closer location, allowing her to work from home, or providing a car or parking permit” would have accommodated her needs.

Nixon-Tinkelman serves as a reminder to employers that they must carefully assess all requests for reasonable accommodations from disabled employees. Although employers are not required to provide the specific accommodations employees may request, they must nevertheless work with employees to determine what reasonable accommodations, if any, can be made.

U.S. Supreme Court Stresses Importance of Commonality in Decertifying Massive Sex Discrimination Class of 1.5 Million Wal-Mart Employees

Barnes & Thornburg LLP‘s Labor and Employment Law Department recently posted in the National Law Review an article about the U.S. Supreme Court’s reversing the largest employment class certification in history

In Wal-Mart, Inc. v. Dukes, reversing the largest employment class certification in history, the U.S. Supreme Court appears to have limited the circumstances in which federal courts can certify class actions – and not just in employment cases. The Court held that the lower federal courts had erred by certifying a class that included 1.5 million female employees from virtually every part of the country. The plaintiffs sought injunctive and declaratory relief, punitive damages, and backpay as a result of alleged discrimination by Wal-Mart against female employees in violation of Title VII of the Civil Rights Act of 1964.

The Supreme Court held that class certification was improper because the class failed to meet the “commonality” requirement of Federal Rule 23(a)(3), which provides that a class can be certified “only if…there are questions of law or fact common to the class…” The Court noted that the mere allegation of “common questions” is insufficient under Rule 23. “Th[e] common contention… must be of such a nature that it is capable of classwide resolution – which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the [individual class members’] claims in one stroke.”

The Court held that the Wal-Mart class did not meet the standard for commonality, because the evidence showed that Wal-Mart gave discretion to its supervisors in making employment decisions. The named plaintiffs “have not identified a common mode of exercising discretion that pervades the entire company… In a company of Wal-Mart’s size and geographical scope, it is quite unbelievable that all managers would exercise their discretion in a common way without some common direction.” The Court concluded that, “Because [the named plaintiffs] provide no convincing proof of a company-wide discriminatory pay and promotion policy, we have concluded that they have not established the existence of any common question.”

The lack of commonality found in Wal-Mart can arise in class actions of many kinds. Under Wal-Mart, a question is “common” under Rule 23(a)(3) only if it can be decided on a class-wide basis. In the past, many named plaintiffs, and some lower courts, have overlooked this essential point. And, as in Wal-Mart, in many cases a claim of commonality will fail precisely because there is no way to rule on the question without addressing the individual facts relating to each purported class member. Wal-Mart makes clear that such a lack of commonality is sufficient to defeat class certification.

In addition to meeting all of the requirements of Rule 23(a), a class must comply with one of the three subparts in Rule 23(b). The trial court in Wal-Mart had certified the class under Rule 23(b)(2), which allows a class where the defendant’s alleged conduct “appl[ied] generally to the class, so that final injunctive or declaratory relief is appropriate respecting the class as a whole…” Another issue before the Supreme Court was whether such certification was proper where the class sought recovery of substantial backpay based on Wal-Mart’s alleged discrimination.

The Court ruled that the purported class could not be certified under Rule 23(b)(2), holding that “claims for individualized relief (like the backpay at issue here) do not satisfy the Rule.” The Court said that Rule 23(b)(2) “does not authorize class certification when each class member would be entitled to an individualized award of monetary damages.”

Under the analysis in Wal-Mart , in the vast majority of class actions seeking a monetary recovery, the class can be certified (if at all) only under Rule 23(b)(3). Class certification under that provision is often more difficult, because a class plaintiff must prove that common questions “predominate” over individual questions and that a class action is “superior” to individual actions. In addition, under Rule 23(c)(2)(A), individual notice must be given to all members of a Rule 23(b)(3) class at plaintiff’s expense, while such notice is optional, within the trial court’s discretion, if the class is certified under Rule 23(b)(2).

Wal-Mart is an important case in the area of employment law; but the Supreme Court’s holdings on the requirements of Rule 23 are likely to be helpful in defending class actions of all kinds

Tag: civil rights

International Women’s Day 2016: Time is Now for Global Gender Equality and to (finally) Close Gender Gap

Like this: