discrimination Archives - Page 2 of 5 - The National Law Forum

Seventh Circuit: ADA Does Not Prohibit Discrimination Based on Future Impairments

On October 29, 2019, railway operator Burlington Northern Santa Fe Railway Company (“BNSF”) prevailed before the United States Court of Appeals for the Seventh Circuit – which covers Illinois, Indiana, and Wisconsin – in a case in which the company argued that its refusal to hire an obese candidate due to an unacceptably high risk that the applicant would develop certain obesity-related medical conditions incompatible with the position sought did not violate the Americans with Disabilities Act (“ADA”).

Ronald Shell applied for a job with BNSF as a machine operator position. Per its standard practice when the applied-for position is safety-sensitive, as was the heavy equipment operator position sought by Shell, BNSF required him to undergo a medical examination. During the medical examination, the examiner determined that Shell’s body mass index (“BMI”) was 47. BNSF had a practice of refusing to hire individuals with a BMI higher than 40 for safety-sensitive positions. In Shell’s case, the employer expressed concern that his obesity, although not causing any present disability, would cause Shell disabilities in the future, such as sleep apnea, diabetes, and heart disease. BNSF asserted that this risk was significant because a sudden onset of any of these conditions could be catastrophic for a heavy machine operator. BNSF therefore did not place Shell in the position.

Shell sued, arguing that he was “disabled” under the ADA’s definition of that term because BNSF had “regarded him as” having a disability. The ADA not only protects individuals who are actually disabled or have a record of being disabled, but also protects individuals who have been subjected to an adverse employment action because of an actual or perceived physical impairment, whether or not that impairment substantially limits a major life activity. Shell argued that by refusing to hire him based on the risk of future disabilities that he was at risk of as a result of his obesity, BNSF essentially treated him as though he currently had those conditions.

The Court ruled that the ADA does not protect non-disabled employees from discrimination based on a risk of future impairments. The Court cited precedent from the Eighth Circuit, where BNSF also faced challenges to its practice of refusing to hire obese applicants due to the risk of future impairments. The Eighth Circuit, like the Ninth and Tenth Circuits, also has held that the statutory language of the ADA does not protect non-disabled individuals who have a risk of disability in the future.

Of note, Shell also argued at the trial court level that his obesity constituted an actual disability, rendering BNSF’s refusal to hire him based on this characteristic a violation of the ADA for this reason as well. However, as you may recall from our blog post from earlier this year, just a few months ago, the Seventh Circuit addressed this argument in another case, Richardson v. Chicago Transit Authority, and held that obesity, by itself, is not a disability for purposes of the ADA unless it is caused by an underlying physiological disorder. Shell did not present any evidence in his case of such an underlying disorder, and thus could not, therefore, claim that he was actually disabled. Notably, the federal appellate courts are split on this issue, which may tee it up for consideration by the United States Supreme Court in the future. In contrast, among the appeals courts that have addressed the issue of future disabilities, all have agreed, thus far, that the ADA’s reach does not extend to potential or likely future disabilities of currently non-disabled individuals.

ARTICLE BY Daniel B. Pasternak of Squire Patton Boggs (US) LLP.

For more ADA litigation, see the National Law Review Labor & Employment law page.

Supreme Court Will not Disturb Ruling that a False Rumor about “Sleeping Your Way to a Promotion” can be a Hostile Work Environment

The U.S. Supreme Court decided not to review an appellate court decision that held a false rumor about a woman “sleeping” her way to a promotion can give rise to a hostile work environment claim. This means that the February 2019 decision by the U.S. Court of Appeals for the Fourth Circuit in Parker v. Reema Consulting Services, Inc. will stand. In Parker, the Fourth Circuit held that, where an employer participates in circulating false rumors that a female employee slept with her male boss to obtain a promotion, this constitutes Title VII gender discrimination.

Parker’s Discrimination Claim

Evangeline Parker started worked for Reema Consulting Services, Inc., (“RCSI”) at its warehouse facility as a low-level clerk. She was promoted six times, ultimately rising to Assistant Operations Manager. About two weeks after she was promoted to a manager position, she learned that some male employees were circulating “an unfounded, sexually-explicit rumor about her” that “falsely and maliciously portrayed her as having [had] a sexual relationship” with a higher-ranking manager to obtain her management position.

The rumor originated with another RCSI employee who was jealous of Parker’s achievement, and the highest-ranking manager at the warehouse facility participated in spreading the rumor. Parker’s complaint alleged that as the rumor spread, she “was treated with open resentment and disrespect” from many coworkers, including employees she was responsible for supervising.

At an all-staff meeting at which the rumor was discussed, the warehouse manager slammed the door in Parker’s face and excluded her from the meeting. The following day, the warehouse manager screamed at Parker and blamed her for “bringing the situation to the workplace.” He also stated that “he could no longer recommend her for promotions or higher-level tasks because of the rumor” and that he “would not allow her to advance any further within the company.” A few days later, the warehouse manager “lost his temper and began screaming” at Parker, and Parker then filed an internal sexual harassment complaint with RCSI Human Resources. Shortly thereafter, RCSI gave Parker two warnings and terminated her employment.

Parker brought a discrimination claim, alleging that she was subjected to a hostile work environment. The district court dismissed her claim on the grounds that 1) the harassment was not based upon gender and instead based upon false allegations of conduct by her, and 2) the conduct was not sufficiently severe or pervasive to have altered the conditions of Parker’s employment because the rumor was circulated for just a few weeks. Judge Titus found, “Clearly, this woman is entitled to the dignity of her merit-based promotion and not to have it sullied by somebody suggesting that it was because she had sexual relations with a supervisor who promoted her.” However, he continued “that is not a harassment based upon gender. It’s based upon false allegations of conduct by her. And this same type of a rumor could be made in a variety of other context[s] involving people of the same gender or different genders alleged to have had some kind of sexual activity leading to a promotion.” Ultimately, Judge Titus held that “the rumor and the spreading of that kind of a rumor is based upon conduct, not gender.

Gender-Based Rumors Can Constitute Sex Harassment

Taking into account all of the allegations of the complaint, including the sex-based nature of the rumor and its effects, the Fourth Circuit held that the rumor that Parker had sex with her male superior to obtain a promotion was gender-based in that it implied that she “used her womanhood, rather than her merit, to obtain from a man, so seduced, a promotion.” The court found that the rumor invoked “a deeply rooted perception — one that unfortunately still persists — that generally women, not men, use sex to achieve success.” This double standard precipitated by negative stereotypes regarding the relationship between the advancement of women in the workplace and their sexual behavior can cause superiors and coworkers to treat women in the workplace differently from men. Thus, the rumor about Parker sleeping her way to a promotion constituted a form of sexual harassment.

The Fourth Circuit also held that Parker sufficiently alleged severe or pervasive harassment:

[T]he harassment was continuous, preoccupying not only Parker, but also management and the employees at the Sterling facility for the entire time of Parker’s employment after her final promotion. The harassment began with the fabrication of the rumor by a jealous male workplace competitor and was then circulated by male employees. Management too contributed to the continuing circulation of the rumor. The highest-ranking manager asked another manager, who was rumored to be having the relationship with Parker, whether his wife was divorcing him because he was “f–king” Parker. The same manager called an all-staff meeting, at which the rumor was discussed, and excluded Parker. In another meeting, the manager blamed Parker for bringing the rumor into the workplace. And in yet another meeting, the manager harangued Parker about the rumor, stating he should have fired her when she began “huffing and puffing” about it.

Implications

Parker correctly recognizes that gender-based stereotypes can prevent women from advancing in the workplace and that Title VII bars employers from using negative gender stereotypes to harass employees.

ARTICLE BY Eric Bachman of Zuckerman Law.

More on workplace harassment via 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.

This article was written by Laura A. Mitchell, Elizabeth P. Hernandez and F. Christopher Chrisbens of Jackson Lewis P.C.

For more on religious protections, see the National Law Review Civil Rights page.

Last Minute Extension, Discrimination & Due Process: Attorneys Fight for Victims of Hurricane Maria

The stakes were very high: Puerto Rican refugees, victims of Hurricane Maria were about to become homeless as FEMA planned to cancel its Temporary Shelter Assistance program. Thousands of refugees living in hotels and motels would find themselves evicted, many having nowhere to go. A telephonic hearing and a last minute ruling required FEMA to continue the program, but the legal battle continues. Offering insight on the issues at hand are attorneys Craig de Recat and Justin Jones Rodriguez of the law firm Manatt, Phelps & Phillips, who, along with Eve Torres of Manatt, LatinoJustice and the Law Offices of Hector E. Pineiro, are working hard to ensure the victims of Hurricane Maria receive the proper assistance and due process they deserve under the law, holding FEMA accountable to their responsibilities to individuals who have already lost so much.

FEMA announced plan to terminate the Transitional Sheltering Assistance program for victims of Hurricane Maria on June 30th. The previously mentioned partners filed a lawsuit and emergency motion for a Temporary Restraining Order, a move that would fend off the evictions and compel FEMA to continue providing rent subsidies. After a telephone conference that evening, Federal Judge Leo Sorokin issued a temporary restraining order to provide shelter throughout the weekend and through the 4th of July holiday. On July 2nd, another hearing was held with Judge Hillman, who issued a TRO extending the program for a longer stretch of time.

Discrimination in FEMA’s Response Efforts A Major Issue in Litigation

Justin Jones Rodriguez, an attorney with Manatt, said: “we had a hearing on August first and the judge recognized there were some unanswered questions, particularly about our discrimination claim.” The hearing on August 1st extended the TSA program until the end of August, and allows evidence to be gathered and testimony to be given and considered. That said, Rodriguez says, “We believe the facts are clear here that hurricane victims after Harvey in Texas are treated one way and hurricane victims in Puerto Rico after Maria were treated a very different way. “ Craig de Recat, also with Manatt, compares FEMA treatment of Hurricane Maria victims with the FEMA treatment of Hurricane Harvey, pointing out that Puerto Ricans hold a dual nationality, but are US citizens nonetheless, and are entitled to FEMA relief. He says:

The facts are abundantly clear and even confirmed by FEMA in its post-incident report, showing that they did not treat Puerto Rican refugees, including these individuals that are in the continental United States in the same way they treated Harvey Refugees. Harvey Refugees had a much quicker response, a much more robust response, were promised financial aid for a longer period of time and an assurance that they were going to be given personal individual case management support to help the individuals and their families.

One way this discrimination case is laid out is the complaint is through comparison of Presidential tweets on the respective tragedies. The complaint points to a tweet on September 30, 2017 from President Trump that says: “Puerto Ricans ‘want everything to be done for them.’” Roughly two weeks later, President Trump sent out a tweet that said FEMA and other disaster relief could not stay in Puerto Rico “forever!” In comparison, two weeks after Hurricane Harvey hit Texas and after the President had visited the state, he tweeted: “After witnessing first hand [sic] the horror & devastation caused by Hurricane Harvey, my heart goes out even more so to the great people of Texas.” The complaint goes into greater detail, comparing the response of FEMA on several levels as being discriminatory against the victims of Hurricane Maria, everything from the initial rate of individual grant denials being double in response to Hurricane Maria than for Hurricane Harvey, and pointing out that even though Hurricane Maria destroyed more homes in Puerto Rico than Hurricane Harvey did in Texas, the relief has overwhelmingly been provided to Texans–of the 60,000 households provided housing assistance by FEMA, over 54,000 of the affected households receiving relief were devastated by Harvey–not Maria.

FEMA Failed to Provide Appropriate Due Process

Another claim against FEMA is their failure to provide the victims of Hurricane Maria with due process under the law. De Recat points out that if FEMA Is going to pull services, they have a responsibility to provide the individuals affected with information on how to appeal that decision. He says: “If FEMA is saying, we are not going to give you financial assistance or we’re not going to help you anymore, then those individuals should be provided with knowledge of how they can appeal that decision. That is a fundamental due process right that all Americans have and that is not being given to these people. They’re just given a summary determination without any right or knowledge of their right of appeal.”

Making a comparison again, to Hurricane Harvey victims, Rodriguez points out that FEMA had provided case management services to victims of Hurricane Harvey, ensuring each individual and family had a place to go when the TSA program terminated. However, victims of Hurricane Maria were not given the same level of attention. Rodriguez says, “Case management services consisted of a published toll free telephone number posted for them to call, which we’ve received reports that it wasn’t working.”

The case continues, and attorneys representing the Hurricane Maria victims remain dedicated to seeking a legal solution and holding FEMA to the appropriate standard. Rodriguez, when asked about his involvement, says simply, “It’s the right thing to do. When Latino Justice reached out to me I was happy to jump on board as an individual. It would be dishonest for me to say that I’m not motivated by the fact that I’m a Hispanic American and the way that these Puerto Rican individuals are being treated by the administration is unjust and unconstitutional.” de Recat says it is a privilege to represent the victims of Hurricane Maria and to stand with them against this injustice. He says, “when we have opportunities like this to step in and help the disenfranchised or the least powerful of our community, then that is part of our obligation, our duty as practicing lawyers within the profession, and I don’t mean to sound corny, but It is a privilege to represent these people and to stand by them and for them. And that is personally enormously rewarding.“

A decision is expected in this case by August 31st.

New Jersey Amends Its Law Against Discrimination to Provide Protections to Nursing Mothers

On January 8, 2018, former New Jersey Governor Chris Christie signed new legislation (the “Amendment”) amending the New Jersey Law Against Discrimination (“NJLAD”) to add breastfeeding as a protected class under the law. The Amendment, which takes effect immediately, makes it unlawful to discriminate or retaliate against an employee that the employer knows, or should know, is either breastfeeding or expressing milk for her infant child.

The Amendment also requires employers to provide reasonable accommodations to nursing women, unless it would result in an undue hardship to the employer, and specifically requires employers to provide:

Reasonable break time each day for the employee to express breast milk for her child; and
A suitable location with privacy, other than a toilet stall, in close proximity to the work area for the employee to express breast milk for her child.

To determine whether an accommodation would provide an undue hardship, the NJLAD provides that the following factors should be considered:

the overall size of the employer’s business with respect to the number of employees, number and type of facilities, and size of budget;
the type of the employer’s operations, including the composition and structure of the employer’s workforce;
the nature and cost of the accommodation needed, taking into consideration the availability of tax credits, tax deductions, and outside funding; and
the extent to which the accommodation would involve waiver of an essential requirement of a job as opposed to a tangential or non-business necessity requirement.

The Amendment also provides that breastfeeding employees are entitled to paid or unpaid leave as a reasonable accommodation, in the same manner as “provided to other employees not affected by pregnancy or breastfeeding but similar in their ability or inability to work.” While the Amendment does not provide an express right to leave, it requires employers to treat such a leave request as they would any other request for leave.

While many New Jersey employers have already been subject to similar requirements to provide breaks and private spaces for nursing mothers to express breast milk in accordance with the Patient Protection and Affordable Care Act’s 2010 Amendment to the federal Fair Labor Standards Act (“FLSA”), the key differences between the breast feeding protections in the FLSA and in the NJLAD are:

Which employees are covered? The FLSA’s protections apply only to “non-exempt” workers (i.e., those workers entitled to overtime pay), while the NJLAD’s protections apply to all New Jersey employees.
Which employers are covered? Small businesses (fewer than 50 employees) may not be covered by the FLSA break-time-for-nursing-mothers provision if they can demonstrate that compliance with the provision would impose an undue hardship. The NJLAD contains a similar “undue hardship” exception, but does not limit the exception to small businesses.
How long must employers accommodate nursing mothers? Protections under the FLSA apply up until one year after the birth of the child, while the NJLAD’s protections do not provide a time limit and apply while the mother is “breast feeding her infant child.” The NJLAD does not define “infant child.”

What should employers do?

New Jersey employers should review their procedures and practices to ensure compliance with the Amendment by:

Reviewing anti-discrimination and reasonable accommodation policies to ensure compliance with the law;
Training supervisors and managers on how to handle accommodation requests related to breastfeeding;
Providing an employee who is breastfeeding with reasonable break times and a suitable private location, other than a toilet stall, in close proximity to the work area to express breast milk for her child.

In addition, employers should consult with counsel before denying an employee an accommodation related to breastfeeding to determine whether an “undue hardship” may be established.

This post was written byAmy E. Hatcher and Denise Merna Dadika of Epstein Becker & Green, P.C.

More Labor and Employment News on the Labor and Employment Practice Group page.

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.

For more Labor & Employment legal analysis, go to The National Law Review

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 harassment, discrimination 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:Compensatory 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

The 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.

ARTICLE BY Taylor E. Whitten of Foley & Lardner LLP

Tag: discrimination

Seventh Circuit: ADA Does Not Prohibit Discrimination Based on Future Impairments

Like this: