Gender Discrimination Archives - The National Law Forum

In Rare Summer Opinion, Supreme Court Follows Sixth Circuit’s Lead

In Department of Education v. Louisiana, the Supreme Court issued a rare August opinion to maintain two preliminary injunctions that block the Department of Education’s new rule. That rule expands Title IX to prevent sexual-orientation and gender-identity discrimination. State coalitions brought challenges; district courts in Louisiana and Kentucky enjoined the rule during the litigation; the Fifth and Sixth Circuits denied the government’s requests to stay the injunctions, nor would the Supreme Court intercede for the government.

All the Justices agreed that aspects of the rule warranted interim relief, most centrally the “provision that newly defines sex discrimination” to include sexual-orientation and gender-identity discrimination. But because the district courts enjoined the entirety of the rule, the scope of relief proved divisive. A narrow majority agreed to leave the broad injunctions in place, while four Justices in dissent argued to sever the suspect aspects of the rule and allow the remainder of the rule to take effect. With emphasis on the “emergency posture,” the majority explained that the government had not carried its burden “on its severability argument.”

Justice Sotomayor’s dissent proposed limiting the injunctions to just the three challenged aspects of the rule. The dissent focused on the “traditional” limits on courts’ power to fashion “equitable remedies.” That Justice Gorsuch joined Justices Sotomayor, Kagan, and Jackson should come as no surprise. Justice Gorsuch has harped on limiting equitable remedies to party-specific relief (e.g. Labrador v. Poe); cast doubt on severability doctrine (Barr v. AAPC (opinion concurring in part and dissenting in part)); and, of course, authored the landmark Bostock v. Clayton County decision that interpreted Title VII to protect against sex discrimination in much the same way the Department wishes to interpret Title IX.

This decision is an unreliable forecast of the Court’s view of what Title IX sex discrimination encompasses. The Court unanimously agreed to table the debate over the Department’s new definition of sex discrimination while the lower courts proceed “with appropriate dispatch.” The case concerned the status of the rest of the rule as that litigation continues.

A truer tell on the merits is the Sixth Circuit panel’s order denying the government’s stay request. The panel found it “likely” “that the Rule’s definition of sex discrimination exceeds the Department’s authority.” Preliminarily at least, the court thought it unlikely that Title IX—last amended in 1972—addresses sexual-orientation and gender-identity discrimination. The Sixth Circuit has been reluctant “to export Title VII’s expansive meaning of sex discrimination to other settings”—and so it was here.

If “past is not always prologue,” still sometimes it is. The Sixth Circuit panel divided on the injunction’s scope just like the Supreme Court. Chief Judge Sutton and Judge Batchelder formed the majority, finding that the three “central provisions of the Rule . . . appear to touch every substantive provision.” Saddling school administrators with new regulatory requirements on the eve of the new schoolyear tipped the equities toward enjoining the full rule. Judge Mathis dissented because the injunction disturbed provisions of the rule “that Plaintiffs have not challenged.”

For now, the Department’s new rule yields to the old one. That rule, too, is being litigated in the Sixth Circuit because guidance documents say the Department will interpret Title IX the same way Bostock interpreted Title VII. See Tennessee v. Dep’t of Educ. and this coverage at the Notice & Comment blog. To close out with some Supreme Court trivia—this marks its first mid-summer opinion since Alabama Association of Realtors v. DHHS in 2021, where the Court ended the Biden Administration’s Covid-era moratorium on evictions. Before that may be the Court’s September 2012 decision Tennant v. Jefferson County Commission involving a challenge to West Virginia’s congressional districts.

Women in Whistleblowing: The Intersection Between Women’s Rights and Federal Employee Whistleblower Protections

Introduction

Pew Research Center data found that 42% of women in the United States have suffered discrimination in the workplace on the basis of their gender. Although there are statutory frameworks in place prohibiting such discrimination, the threat of retaliation can make it exceedingly difficult for employees who are already experiencing discrimination and harassment to come forward as whistleblowers under these provisions. On top of the personal and professional risks inherent in whistleblowing, federal employee whistleblowers have been saddled with added burdens by the statutory framework: in addition to proving her substantive claims, a federal whistleblower of sex discrimination is required to demonstrate that she has exhausted certain administrative remedies before she can be heard by a jury of her peers. Because workplace discrimination disproportionally affects women, ensuring expansive and effective whistleblower protections and remedies, particularly for women in federal employment, is undoubtedly a women’s rights issue. To celebrate Women’s History Month, this article highlights just a few of the remarkable women who have come forward as whistleblowers within this framework to make enormous strides in preserving, enforcing, and expanding crucial protections for future generations of women in the federal workplace.

Statutory Framework

Title VII of the Civil Rights Act of 1964 (“CRA”) prohibits discrimination by private employers based on race, color, religion, sex, or national origin, and further prohibits retaliation by forbidding discrimination against an employee who has “made a charge, testified, assisted, or participated in” a Title VII proceeding or investigation. In 1972, the Equal Opportunity Act (“EOA”) expanded Title VII’s coverage to include certain categories of federal employees, providing that all personnel actions taken in regard to these employees “shall be made free from any discrimination based on race, color, religion, sex, or national origin.” Many courts have interpreted the EOA to extend both the anti-discrimination and anti-retaliation provisions of the CRA to federal employees. However, in a report on whistleblowing conducted by Senator Patrick Leahy in 1978, it was noted that although some interpretations of the existing statutory framework had been generous to whistleblowers, many courts were still “reluctant to play a role in the whistleblower problem”

Thus, the Civil Service Reform Act (“CSRA”) was passed in an attempt to cement protections for federal whistleblowers, creating an office within the Merit Protections Board (“MSPB”) to bring retaliation claims on behalf of whistleblowers. However, by 1989 not a single corrective action had been brought on behalf of whistleblowers to the MSPB, which was seen as largely ineffectual. In 1989, the Whistleblower Protection Act was passed, which for the first time created an individual right of action for federal employee whistleblowers. As the law currently stands, a federal employee whistleblower may bring a discrimination claim that would have been appealable to the MSPB as a civil action in federal court after the relevant administrative agency has failed to take action for a certain amount of time.

While this statutory framework provides critical tools for female whistleblowers to come forward and expose sex discrimination in the workplace, the accessibility of these tools remains particularly limited for federal employees who are required to go through the MSPB’s arduous administrative procedures before being heard in federal court, all the while often suffering continued discrimination and harassment at work. Thus, the real thrust of the work to protect female whistleblowers has been accomplished not by the provisions of the law but by those individual women brave enough to come forward and fight extensive legal battles to enforce, cement, and expand those provisions.

The Right to a Jury Trial for Federal Whistleblowers

Among the shortcomings of the statutory framework seeking to protect whistleblowers of sex discrimination in the federal workplace is an ambiguity in the scope of the individual right of action. The text of the statute explicitly gives the district court jurisdiction over discrimination claims arising under, inter alia, the Civil Rights Act. Therefore, it remains unclear whether a “mixed case”– which includes both discrimination claims and related non-discrimination retaliation claims – must remain within agency jurisdiction, or whether the entire mixed case, including the whistleblower retaliation claims, can be heard by a federal jury. This crucial gap in the legislation has been directly remedied by individual female whistleblowers.

In 1999, Dr. Duane Bonds was serving as Deputy Chief of the Sickle Cell Disease Branch of the Division of Blood Diseases and Resources within the NIH, where she was a highly prominent medical researcher. Throughout her employment, Dr. Bonds experienced repeated sexual harassment at the hands of her male supervisor. In retaliation for reporting the harassment to the EEOC, Dr. Bonds was removed from her position and demoted. In her new position, Dr. Bonds discovered that human DNA had been improperly used in NIH projects. She escalated these concerns over the objections of her supervisor, who retaliated by submitting negative performance reviews which caused her removal from the project. Dr. Bonds again filed a complaint with the EEOC in 2005, alleging that the removal constituted unlawful discrimination and retaliation. Throughout the complaint and investigation process, Dr. Bonds experienced continued sex discrimination and harassment in her workplace and was ultimately terminated in 2006. Dr. Bonds initiated a final EEOC complaint in 2007, detailing the extensive discrimination and whistleblower retaliation she had experienced. With no administrative action taken within the statutorily determined time frame, Bonds filed her case with the District Court.

Because it included both discrimination and claims of retaliation for protected whistleblowing activity, Bonds’ case was considered a “mixed case,” and the district court struggled with the question of jurisdiction under the CSRA, ultimately dismissing the claims citing failure to exhaust administrative remedies. In her appeal to the 4th Circuit, Dr. Bonds argued that mixed cases like hers must be treated as a single unit and heard in combination in either an administrative proceeding or in federal court. The 4th Circuit agreed, granting Bonds and other whistleblowers in her situation the right to a federal jury trial, on both her CSRA discrimination and WPA retaliation claims.

In determining this jurisdictional question, the 4th Circuit cited to a D.C. Circuit case which held in favor of another female whistleblower bringing both discrimination and retaliation claims. In this case, Kiki Ikossi – an electrical engineer at the Navy Research Lab – suffered continuous discrimination by her employer on the basis of age, gender, and national origin, stunting her career progression. Dr. Ikossi fought the misconduct in federal court, where the D.C. Circuit found that interpreting the law to require a whistleblower’s retaliation claims to be held up in administrative proceedings would be adverse to Congress’ intent to have discrimination and retaliation claims settled “expeditiously.” The Court noted that the regulatory structure surrounding mixed cases had become “extremely complicated,” and that access to a judicial forum for complainants of sexual discrimination in the federal workplace was critical to the legislative purpose, otherwise such claims would “languish undecided in the administrative machinery.”

The decisions on mixed case jurisdiction secured by Dr. Ikossi and Dr. Bonds have been cited by numerous other circuit courts, further expanding protections for federal employee whistleblowers facing sex discrimination in the workplace. On the basis of this precedent, Bunny Greenhouse – a high ranking official at the Army Corps of Engineers who discovered and exposed egregious contracting fraud by the Department of Defense – was able to take her case of whistleblower retaliation to federal court in the District of Columbia. Under pressure of a federal trial, the Army agreed to settle the case for nearly $1 million in restitution. After the settlement, Ms. Greenhouse made an impassioned statement: “I hope that the plight I suffered prompts the Administration and Congress to move dedicated civil servants from second-class citizenry and to finally give federal employees the legal rights that they need to protect the public trust.”

Among many other female whistleblowers who have helped to shape the law as it stands today, Dr. Ikossi, Dr. Bonds, and Ms. Greenhouse’s lengthy legal battles paved the way for future whistleblowers of gender discrimination to have their claims heard by a federal jury of peers rather than a politically appointed federal agency. The whistleblowing community is indebted to these women who were willing to take significant personal, professional, and financial risks to expose sex discrimination in the workplace, and to ensure future whistleblowers remain protected.

For more White Collar Crime and Consumer Rights Legal News, click here to visit the National Law Review

California Board Gender Quota Law Challenged In Federal Court

Cydney Posner at Cooley LLP wrote last week about a new challenge to California’s Board Gender Quota law. The lawsuit, Creighton Meland v. Alex Padilla, Secretary of State of California, was reportedly filed in federal district court in California by a shareholder of OSI Systems, Inc. According to OSI’s most recently filed Form 10-Q, the company is incorporated in Delaware, its principal executive offices are in California, and its shares are traded on The Nasdaq Global Select Market. The lawsuit alleges violation of the equal protection clause of the Fourteenth Amendment and seeks declaratory and injunctive relief.

As this case progresses, one question might be whether the plaintiff’s claim is direct or derivative. OSI is not named as a party to the lawsuit and the plaintiff alleges that the law injures his “right to vote for the candidate of his choice, free from the threat that the corporation will be fined if he votes without regard to sex”. The Delaware Supreme Court’s test for whether a stockholder’s action for breach of fiduciary duty is derivative or direct asks two questions:

“Who suffered the alleged harm–the corporation or the suing stockholder individually–and who would receive the benefit of the recovery or other remedy?”

Tooley v. Donaldson, Lufkin & Jenrette, Inc., 845 A.2d 1031 (Del. 2004). Although the corporation will be fined and the fine suffered by all of the stockholders, the plaintiff is alleging that he is being injured by being denied the freedom to vote without regard to sex. Presumably, that injury would be removed if the law is enjoined.

Interestingly, OSI does not appear in the California Secretary of State’s listing of SB 826 corporations published earlier this year. According to the proxy statement filed by OSI last month, all of the current directors are men, but a female has been nominated for election at the upcoming meeting.

ARTICLE BY Keith Paul Bishop of Allen Matkins Leck Gamble Mallory & Natsis LLP.

More on Corporate Board diversity rules on the Corporate & Business Organizations law page of the National Law Review

How to Write Gender-Neutral Contracts

“Men” is not synonymous to “person”, nor does “he” mean “she.” It is important for contractual language to be not only precise but also accurate. Many agreements govern multiple individuals, some of whose gender is unclear or variable. This article will give you advice and guidance on how to adjust contract language to be gender-neutral. As society moves towards treating all genders equally, legal contracts should too.

What is gender?

Gender is the socially constructed characteristics of “male” and “female” and includes norms, roles, and relationships of and between groups of men and women.

What is gender-neutral?

Merriam-Webster defines gender-neutral as “not referring to either sex but only to people in general.”

Why it matters:

Conversations around gender and gender-neutrality are becoming more and more mainstream. Thomson Reuters reported that in the past year (2018), there has been an increase in the number of clients requesting gender-neutral documents. Startups are at the forefront of change and industry disruption, so it is logical that they stay ahead of the trend.

As you operate business, there are a number of form contracts that you will use regularly. These form contracts are agreements your attorney drafts with brackets and spaces for you to update depending on each use. For example, common form contracts include (1) Employee Offer Letters, (2) Confidentiality, Nondisclosure, and Assignment of Inventions Agreements, (3) Equity Incentive Plan, (4) Stock Option Grants, and (5) Restricted Stock Purchase Agreement.

Traditionally, these form contracts used masculine pronouns. It used to be that progressive contracts simply did not use “he” but rather “she” or “he or she.” As Thomson Reuters reported:

“In the old days it was almost certain that your senior employees would be men; a contract would be drafted accordingly, and then the ladies would be given a metaphorical pat on the head by including in the boilerplate the reassurance that references to the male gender should be interpreted to include the female.”

Now, the shift towards non-gendered pronouns and away from binary choices of “he” or “she” means attorneys need to adopt new drafting techniques. As entrepreneurs and leaders of your own business, you can encourage this shift.

What to do:

Replace the masculine pronoun with an article, for example using “the position” in place of “his position”

Use a neutral word or phrase such as “person” or “individual”
Define the term and repeat that noun
Rewrite the sentence in order to eliminate the pronoun completely

What to be wary of (for now):

Using the singular “they” and its other grammatical forms to refer to indefinite pronouns and singular nouns, for example using “they” in place of “she” and “them,” “themselves,” and “their” in place of “her,” “herself,” and “hers.”
1. Part of drafting a contract is using precise language. While there is rising social acceptance of the use of singular “they,” a court has not ruled on its interpretation in contracts. Likely, it will take legal precedent in Delaware interpreting such use to accept the use of the singular “they.”
2. This same logic applies to the use of the singular “ze.”
Using the plural “they.”
1. Similarly, the use of the plural can be misleading. For an employment offer letter, for instance, the offer is not to a number of people but rather to one individual.
A catch-all clause like “Unless the context otherwise requires, a reference to one gender shall include reference to the other genders”
1. It was offensive when the use of male pronouns were supposed to encompass women and men. Such use effectively reinforced gender stereotypes. It is equally offensive when it is used to refer to all genders.

Gender neutrality facilitates accurate, precise contracts. It is important that an individual who is subject to a contract feel as though the contract applies to that individual. In addition, that individual should also feel respected.

ARTICLE BY Kati I. Pajak of Mintz.

For more on contract law, see the National Law Review Corporate & Business Organizations 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.

ARTICLE BY Archana R. Manwani of Foley & Lardner LLP.

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

How Harmful do Gender Stereotypes Need to be?

Ads Banned in UK Following New Rule

As we reported earlier this year, a new rule dealing with the depiction of harmful gender stereotypes, was introduced into the BCAP and CAP Codes as of June 2019.

The first decisions under the new rules have been released and we have seen two separate ads by Volkswagen and Philadelphia banned by the Advertising Standards Authority (ASA) under the new rule.

Volkswagen’s advert for its eGolf electric car, with the slogan “when we learn to adapt, we can achieve anything” features a man and a woman camping on a sheer cliff face, two male astronauts floating in space, a male athlete with a prosthetic limb, and a woman sitting next to a pram.

Separately, the Philadephia ad by Mondalez depicts fathers being distracted by the cheese spread long enough for their babies to end up on a conveyor belt of Philadelphia, resulting in an embarrassed dad saying “let’s not tell mum”.

Both ads received a number of complaints from the public on the basis that they were contrary to the new rule, which aims to ban harmful gender stereotypes in ads which can

“contribute to inequality in society” and “can, over time, play a part in limiting people’s potential.”

Whilst Volkswagen argued that caring for a new born child was a life-changing experience about adaption, regardless of the gender of the parent depicted, and that a female was also engaged in the adventurous activity of camping on the mountain, the ASA ruled that “unlike her male counterpart, the female rock climber was passive, because she was asleep” and that the woman with the pram was depicted in a stereotypical care-giving role.

Mondalez told ASA that it was in a “no-win situation” having deliberately chosen two dads to avoid depicting the stereotypical image of women handling the childcare responsibilities. However the ASA banned the ad on the basis that it reinforced the stereotype that males are ineffective in care-giving roles.

Critics have said that the watchdog has gone too far and in a statement posted on the website for ISBA, the body representing the UK’s leading advertisers, Phil Smith (director-general and a member of a working group that helped develop the new rules) said the bans are “concerning, both in terms of the precedent they set and the likely impact they will have on advertisers.”

Smith further commented

“In our view, the two decisions go beyond the intent of the new rule and guidance and will likely create confusion for advertisers and the broader co-regulatory system as they seek to address the harmful gender stereotypes and outdated portrayals this rule was designed to tackle.”

The effectiveness of the new rule will be reviewed by CAP in June 2020, to determine whether it is suitable in helping the ASA meet the rule’s objective. It will be interesting to see how the ASA applies the rule in future decisions.

ARTICLE BY Carlton Daniel and Katie Rodgers of Squire Patton Boggs (US) LLP.

For more on advertising regulation, see the National Law Review Communications, Media & Internet law page.

After Court Decision, Could Title IX Expand to Cover Hazing?

A recent federal court decision in Louisiana suggests that Title IX requires institutions of higher education to treat fraternities and sororities equally. While Title IX generally involves cases of sexual assaults on campus, this new lawsuit argues that fraternity members are more at risk than sorority members of hazing due to unequal protections by colleges.

The lawsuit alleges that Louisiana State University (“LSU”) treats Greek organizations for men and women differently. The Plaintiffs allege that four fraternity pledges have died during hazing incidents at LSU since 1979, whereby hazing of sorority pledges is virtually non-existent due to restrictions and strict oversight provided by LSU. By not offering these same protections to the men involved in Greek organizations, the lawsuit states LSU has violated Title IX.

According to USA Today , Title IX has never been tested in hazing cases. As stated in that story, the lawsuit pushes the boundaries of Title IX enforcement. If successful, the litigation could set a precedent that drastically changes college disciplinary systems nationwide. Colleges and universities would have to ensure that they treat fraternities and sororities similarly when enforcing anti-hazing laws.

This lawsuit could also help shape new legislation. Florida recently enacted legislation that enables prosecutors to bring charges against fraternity and sorority members who weren’t present for hazing activities, but helped plan the events. Similar legislation is likely to be proposed elsewhere.

As the new academic year begins, institutions should take steps to enforce anti-hazing laws uniformly among fraternities and sororities in order to minimize the risk of similar claims based on Title IX.

This article is by Jim Newberry, Peter Lake and Sarah L. Quinn of Steptoe & Johnson PLLC.

For more university litigation news, please see the National Law Review Public Education & Services type of law page.

Inclusion Does Not Stop Workplace Bias, Deloitte Survey Shows

In Deloitte’s 2019 State of Inclusion Survey, 86% of respondents said they felt comfortable being themselves all or most of the time at work, including 85% of women, 87% of Hispanic respondents, 86% of African American respondents, 87% of Asian respondents, 80% of respondents with a disability and 87% of LGBT respondents. But other questions in the company’s survey show a more troubling, less inclusive and productive office environment, and may indicate that simply implementing inclusion initiatives is not enough to prevent workplace bias.

While more than three-fourths of those surveyed also said that they believed their company “fostered an inclusive workplace,” many reported experiencing or witnessing bias (defined as “an unfair prejudice or judgment in favor or against a person or group based on preconceived notions”) in the workplace. In fact, 64% said that they “had experienced bias in their workplaces during the last year” and “also felt they had witnessed bias at work” in the same time frame. A sizable number of respondents—including 56% of LGBT respondents, 54% of respondents with disabilities and 53% of those with military status—also said they had experienced bias at least once a month.

Listening to those who say they have witnessed or experienced bias is especially important. When asked to more specifically categorize the bias they experienced and/or witnessed in the past year, 83% said that the bias in those incidents was indirect and subtle (also called “microaggression”), and therefore less easily identified and addressed. Also, the study found that those employees who belonged to certain communities were more likely to report witnessing bias against those communities than those outside them. For example, 48% of Hispanic respondents, 60% of Asian respondents, and 63% of African American respondents reported witnessing bias based on race or ethnicity, as opposed to only 34% of White, non-Hispanic respondents. Additionally, 40% of LGBT respondents reported witnessing bias based on sexuality, compared to only 23% of straight respondents.

While inclusion initiatives have not eliminated bias, Deloitte stresses that these programs are important and should remain. As Risk Management previously reported in the article “The Benefits of Diversity & Inclusion Initiatives,” not only can fostering diversity and inclusion be beneficial for workers of all backgrounds, it can also encourage employees to share ideas for innovations that can help the company, keep employees from leaving, and insulate the company from accusations of discrimination and reputational damage.

But building a more diverse workforce is only the first step, and does not guarantee that diverse voices are heard or that bias will not occur. Clearly, encouraging inclusion is not enough and more can be done to curtail workplace bias. And employees seeing or experiencing bias at work has serious ramifications for businesses. According to the survey, bias may impact productivity—68% of respondents experiencing or witnessing bias stated that bias negatively affected their productivity, and 70% say bias “has negatively impacted how engaged they feel at work.”

Deloitte says that modeling inclusion and anti-bias behavior in the workplace is essential, stressing the concept of “allyship,” which includes, “supporting others even if your personal identity is not impacted by a specific challenge or is not called upon in a specific situation.” This would include employees or managers listening to their colleagues when they express concerns about bias and addressing incidents of bias when they occur, even if that bias is not apparent to them or directly affecting them or their identity specifically.

According to the survey, 73% of respondents reported feeling comfortable talking about workplace bias, but “when faced with bias, nearly one in three said they ignored bias that they witnessed or experienced.” If businesses foster workplaces where people feel comfortable listening to and engaging honestly with colleagues of different backgrounds, create opportunities for diversity on teams and projects, and most importantly, address bias whenever it occurs, they can move towards a healthier, more productive work environment.

Article by Adam Jacobson of Risk and Insurance Management Society, Inc. (RIMS).

For more on workplace discrimination issues, please see the National Law Review Labor & Employment law page.

Ruth Bader Ginsburg, Max Scherzer, a $5 million settlement, and How They All Relate to Workplace Parental Leave Policies

Washington Nationals’ pitching ace Max Scherzer recently took parental leave and helped shine a light on a hot employment topic: ensuring that employers’ parental leave policies are fair and gender-neutral.

This issue also gained attention in May 2019 when JPMorgan Chase, one of the world’s largest banks, reached a $5 million settlement about the bank’s parental leave program. As part of the settlement, the bank will make payments to a group of male employees who were discouraged from taking 16 weeks paid parental leave to care for a new child. The settlement also directs JPMorgan Chase to implement a parental leave program that is fair and gender-neutral. JPMorgan Chase denied the allegations.

At first glance, JPMorgan Chase’s parental leave program seemed gender-neutral. It offered 16 weeks of paid leave for “primary caregivers” and 2 weeks for “secondary caregivers.” The bank, however, allegedly applied the policy differently when a male employee versus a female employee requested leave. That is, female employees requesting parental leave were presumed to be the primary caregivers, while male employees were presumed to be the secondary caregivers. The plaintiffs claimed that, for a male employee to receive parental leave as a primary caregiver, he had to show that his spouse or domestic partner had returned to work, or that he was the spouse or partner of a mother who was medically incapable of caring for the child. Female employees who had given birth themselves were not subject to this requirement.

The named plaintiff in the settlement, Derek Rotondo, requested 16 weeks of parental leave as a “primary caregiver” after the birth of his second child. Human resources, according to Rotondo, informed him that a father requesting parental leave would only be considered a “primary caregiver” if he could show that the mother had to return to work before the 16 weeks elapsed, or that she was “medically incapable” of caregiving. Rotondo could not demonstrate either option, and he received only two weeks of parental leave.

Rotondo then filed a charge of discrimination with the Equal Employment Opportunity Commission challenging JPMorgan Chase’s practice of denying primary caregiver leave to fathers. He also filed a class action complaint on behalf of himself and similarly situated individuals. Rotondo received 16 weeks parental leave, and the five thousand other male employees who were denied parental leave as a “primary caregiver” will be compensated from a fund created by the $5 million settlement.

This is not the first time that a step towards gender equality was taken in a case involving male plaintiffs who sought caregiver benefits, only to find out that the benefits are not available to them because they are men. Rotondo was represented by lawyers from the A.C.L.U.’s Women’s Rights Project, which was founded by now-Justice Ruth Bader Ginsburg in the early 1970’s. Ginsburg was an A.C.L.U. lawyer when she argued Moritz v. Comm’r of the Internal Revenue System before the U.S. Court of Appeals for the Tenth Circuit.

Moritz was the first federal court case to hold that discrimination on the basis of sex is unconstitutional. In that case, Moritz claimed a tax deduction for the cost of a caregiver for his mother, but the IRS denied it because the agency only allowed the deduction to be claimed by women and formerly married men. Ginsburg argued that no rational basis in the law exists for treating men and women differently. Moreover, she argued that the proper remedy was to allow men to claim the deduction as well, instead of eliminating the deduction for everyone.

Of course, in some families one parent is the primary caregiver to the children and one parent, for whatever reason, needs to return to work more quickly than their partner. The larger problem (for companies and their employees) is where the employer presumes a connection between an individual’s gender and that individual’s role at home. Doing so presumptively differentiates among employees and their parental leave needs based on sex. The settlement between JPMorgan Chase and their employees demonstrates that companies do so at their own risk.

As Supreme Court Justice Ruth Bader Ginsburg noted, “[w]omen will have achieved true equality when men share with them the responsibility of bringing up the next generation.”

This article was written by Eric Bachman of Zuckerman Law.

For more on parental leave policies, please see the Labor & Employment page on the National Law Review.

For Whom the Class Tolls: “No Piggybacking Rule” Does In Would-Be Class in Ongoing Wal-Mart Saga

In 2011, the United States Supreme Court issued its landmark decision in Wal-Mart Stores, Inc., v. Betty Dukes, et al., decertifying a putative class of approximately 1.6 million current and former female Wal-Mart employees who claimed gender discrimination in wages and promotions in violation of Title VII. 564 U.S. 338 (2011). The Court reversed the Ninth Circuit’s affirmation of class certification and determined the plaintiffs failed to meet the class “commonality” standard set out in Federal Rule of Civil Procedure 23. Id. at 349-60. The Dukes decision set in motion a number of spinoff regional cases, one of which – barring another grant of certiorari to the high court – met its end somewhat anticlimactically, when the Eleventh Circuit issued its August 3, 2017 order in Love, et. al. v. Wal-Mart Stores, Inc. No. 15-15260.

The Love plaintiffs included a sub-group of the Dukes plaintiffs who worked in the southeastern United States. These holdover Dukes plaintiffs were able to refile their claims because of the requirement that federal court discrimination plaintiffs first file with the Equal Employment Opportunity Commission. This rule effectively tolled the statute of limitations during the pendency of Dukes. But critically, under the Eleventh Circuit’s “no piggybacking rule”, tolling is limited to individual claims only, not class claims, which has also been adopted by the Fifth and Sixth Circuits. The Love court previously left little room for argument when it noted in a 2013 order that “[t]he Eleventh Circuit categorically refuses to toll the limitations period for subsequent class actions by members of the original class once class certification is denied in the original suit.” Thus, on October 16, 2015 the individual named plaintiffs and Wal-Mart settled and jointly filed a “stipulation of voluntary dismissal.”

On November 6, 2015, the Love appellants, made up of unnamed members of the would-be class, filed a motion to intervene solely to appeal the dismissal of class claims. This motion was denied 13 days later as moot, which, to make matters worse for the appellants, took them outside of their 30-day deadline to appeal the October 16 stipulated dismissal. The Eleventh Circuit thus found the appeal jurisdictionally barred, providing a rather sudden end to the winding multi-year litigation.

In light of this tangled and technical history, employers and their counsel should be sure to understand the differences in treatment of class actions and individuals under the relevant rules, regulations, and statutes. Though it can be tempting to move immediately to the standard substantive arguments against numerosity, commonality, typicality, and adequacy of the proposed class, the Wal-Mart cases show that knowing your way around the procedural thicket is another useful skill in avoiding or minimizing the cost of class litigation.

This post was written by Kelly J. Muensterman of Polsinelli PC.

_{[1] https://www.supremecourt.gov/opinions/10pdf/10-277.pdf}

_{[2] http://hr.cch.com/eld/LoveWalmart080317.pdf}

_{[3] Salazar–Calderon v. Presido Valley Farmers Ass’n, 765 F.2d 1334 (5th Cir.1985) and Andrews v. Orr, 851 F.2d 146 (6th Cir.1988)}

_{[4] 2013 WL 5434565, at *2.}

For more legal analysis check out the National Law Review’s homepage.

Tag: Gender Discrimination

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