Tag: workplace discrimination

EEOC Takes Action to Address Mental Health Discrimination in the Workplace

Employers must take notice that the United State Equal Opportunity Commission (EEOC) is cracking down on companies that discriminate against workers because they have a mental health condition. Mental health conditions, such as major depressive disorder, bipolar disorder, and schizophrenia, substantially limit brain function. The EEOC determined these disorders constitute disabilities under the American with Disabilities Act (ADA).

The EEOC has significantly increased charges against employers for alleged ADA violations premised upon mental health issues.

In September, the EEOC released its Strategic Enforcement Plan (SEP). A review of the SEP reveals that the EEOC will focus on harassment, retaliation, job segregation, labor trafficking, discriminatory pay, disparate working conditions, and other policies and practices that impact particularly vulnerable workers and persons from underserved communities, including workers with mental health related disabilities.

Hence, employers must be extremely careful when dealing with employees or prospective employees who suffer from mental health conditions.

Under the ADA and other nondiscrimination laws, employers must provide “reasonable accommodations” to qualified employees with disabilities. These accommodations are adjustments to the workplace that allow these employees to perform their job duties. These accommodations are usually not costly and can be beneficial in allowing employees to return to work, avoiding productivity losses, and promoting the recruitment and retention of qualified employees.

However, not all employees with mental health conditions require accommodations to perform their job duties. For those who do, accommodations should be individualized and developed with the input of the employee. Below is a list of examples of accommodations that have helped employees with mental health conditions to better perform their job duties. These are not all possible accommodations but provide a starting point to help employers promote an inclusive and supportive work environment. These include:

  • Flexible workplace arrangements
  • Scheduling adjustments
  • Sick leave or flexible use of vacation time
  • Individualized breaks
  • Modification of non-essential job duties
  • Additional training or support
  • Positive reinforcement and flexible supervision
  • Accommodations to the work environment, equipment, and technology
  • Regular meetings between employees and supervisors to discuss workplace issues.

It is important for all employees to be aware of their rights and provide relevant training to co-workers and supervisors. Effective implementation of these accommodations will help create a more inclusive work environment and benefit both employees and employers.

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For more news on Mental Health Discrimination in the Workplace, visit the NLR Labor & Employment section.

Do Federal Civil Rights Laws Prohibit Discrimination Based on Sex and Age?

Harvard Business Review’s recent survey, “Women in Leadership Face Ageism at Every Age,” shines a bright light on the bleak reality of age discrimination against women in the workplace.  The survey of 913 women leaders from across the United States in the higher education, faith-based nonprofit, legal, and health care industries found that supervisors and colleagues find women of every age unfit for leadership roles based on their age.  Young women leaders are subjected to head pats and pet names and are often mistaken for students, interns, or support staff.  Middle aged women leaders are discounted as having too many family responsibilities or being on the runway to menopause.  Older women are largely erased from the work environment, facing assumptions that they are on their way out.  This stands in stark contrast to older men, whom employers tend to regard as “wells of wisdom.”  In short, when it comes to the workplace, age-related bias perpetually stands between women and recognition as leaders.

Title VII of the Civil Rights Act of 1964 (“Title VII”), which prohibits discrimination in employment, identifies certain “protected classes” upon which bases employers may not discriminate: race, color, religion, sex, and national origin.  A separate statute, the Age Discrimination in Employment Act (“the ADEA”), outlaws age discrimination in the workplace.  Plaintiffs filing a lawsuit challenging employment discrimination typically must articulate a specific statute their employer has violated.  In the case of sex-plus-age discrimination—that is, mistreatment based on the intersection of sex and age—neither statute standing alone captures the plaintiff’s experience.[1]  This raises the question of how women facing uniquely gendered age bias in the workplace—like that outlined in the Harvard Business Review survey—can state legal claims a court will consider viable.

For the most part, federal courts have been skeptical of such claims.

A recent case, however, brought a new perspective to the question of sex-plus-age discrimination under federal law.  On July 21, 2020, the United States Court of Appeals for the Tenth Circuit, the appellate court that covers Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming, addressed the question “whether sex-plus-age claims are cognizable under Title VII.”[2]  In Frappied v. Affinity Gaming Black Hawk LLC, nine female plaintiffs brought (among other claims) sex-plus-age claims for disparate impact and disparate treatment under Title VII, alleging they were terminated because Affinity discriminated against women over forty.[3]  The older women, who had worked at the Golden Mardi Gras Casino, were laid off after the defendant purchased the casino in 2012.  The terminations were largely unexplained.  After the lower court dismissed their claims, the plaintiffs appealed.

The Tenth Circuit ruled in the plaintiffs’ favor, affirming the validity of sex-plus-age claims under Title VII alone.  The court noted that it had allowed claims based on a combination of race and sex discrimination in Hicks v. Gates Rubber Co.[4]In Hicks, the court considered the combined effect of racial slurs and sexual harassment in a hostile work environment case.  In Frappied, however, the court had to decide a novel question—whether an intersectional discrimination claim could be based on a second characteristic that is not protected by Title VII: age.  Most courts that have considered such claims have refused to decide whether a plaintiff can challenge discrimination under an intersectional theory that the combination of the two protected characteristics led to the adverse action, or they have decided the plaintiff can prevail under one statute so the court does not have to decide whether the intersectional claim is viable. For instance, both the Second and Sixth Circuits have sidestepped the issue, making dispositive rulings based on other claims in plaintiffs’ complaints.[5]

In Frappied, the Tenth Circuit noted that the Supreme Court had long held that Title VII prohibits “sex-plus” discrimination where the “plus” factor is not protected under the statute.[6]  In Phillips v. Martin Marietta Corp.[7]the Supreme Court held that a policy against hiring women with preschool-age children violated Title VII, because men with preschool-age children were not subject to that policy.  Even though “people with preschool-age children” is not a protected class, the Supreme Court recognized this to be a form of sex discrimination.  The Tenth Circuit used the same reasoning to hold that if sex—which is protected under Title VII—“play[ed] a role in the employment action,” then the termination was impermissible even though the “plus” factor, age, is in another statute.[8]  Borrowing from the Supreme Court’s analysis in Bostock,[9] which held that Title VII’s sex discrimination provision prohibits sexual orientation and gender identity discrimination in employment, the Tenth Circuit held that “if a female plaintiff shows that she would not have been terminated if she had been a man—in other words, if she would not have been terminated but for her sex—this showing is sufficient to establish liability under Title VII.[10]

While the outcome in Frappied is a positive development for civil rights in employment, in most jurisdictions there is no clear protection under federal law against sex-plus-age discrimination.  The EEOC has long acknowledged the availability of such intersectional claims, but as mentioned, other sex-plus-age claims have made their way through the courts on occasion without success.  The Tenth Circuit is the first and only federal appellate court to formally recognize these claims as viable under federal law.

However, there are state laws that prohibit sex and age discrimination in the same provision,[11] so the federal courts’ unwillingness to combine the effects of discrimination prohibited by two separate statutes is not always a concern.  Given the Harvard Business Review’s exposure of the dire state of workplace age bias against women, and the Tenth Circuit’s groundbreaking decision in Frappied, more women experiencing workplace age discrimination may want to consider challenging their employers’ decisions.  Because of the variations in protections in different jurisdictions, employees should consider seeking legal advice.  If you or someone you know has experienced sex-plus-age bias, contact the experienced lawyers at Katz Banks Kumin today.

[1] The legal standards, particularly the causation standards, also differ under the two statutes.  Under Title VII, it is sufficient to prove that sex was a “motivating factor” in an employment decision.  Under the ADEA, however, age must be the but-for cause, Gross v. FBL Fin. Serv., Inc., 557 U.S. 167 (2009).  Many courts have interpreted this but-for causation standard to mean that if any other reason—even sex, which is a protected class under Title VII—played a role in the employment decision, then the age claims fail.  The Supreme Court recently clarified that “but-for cause” does not mean “sole cause,” Bostock v. Clayton County, 140 S. Ct. 1731 (2020), but the idea has yet to trickle down through the federal courts—and into ADEA claims.

[2] Frappied v. Affinity Gaming Black Hawk, LLC, 966 F.3d 1038, 1045 (10th Cir. 2020).

[3] Id.

[4] 833 F.2d 1406, 1416-17 (10th Cir. 1987)

[5] Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010) (“Having determined that Gorzynski has provided sufficient evidence of age discrimination to reach a jury, there is no need for us to create an age-plus-sex claim independent from Gorzynski’s viable ADEA claim.”); Schatzman v. Cty. Of Clermont, Ohio, No. 99-4066, 2000 WL 1562819, at *9 (6th Cir. 2000) (“[W]e decline the invitation to decide the ‘sex plus [age]’ charge partly because it is unnecessary for us to do so.”).

[6] 966 F.3d at 1046.

[7] 400 U.S. 542 (1971).

[8] Id. at 1046.

[9] 140 S. Ct. 1731.

[10] Id. at 1047.

[11] See, e.g., D.C. Code Ann. § 2-1401.1.

Katz Banks Kumin LLP Copyright ©
For more articles on workplace discrimination, visit the NLR Civil Rights section.

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.

Copyright Kohn, Kohn & Colapinto, LLP 2023. All Rights Reserved.
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Nonbinary Pronoun Usage in the Workplace: What Employers Are Doing to Promote Inclusivity

Using the correct pronouns and honorifics in the workplace has become an increasingly important part of maintaining an inclusive workplace. At the same time, the sensitive nature of this trend and the many variations of pronouns and honorifics in use may leave employers confused as to how to accomplish that goal. Moreover, employers may be concerned with how to comply with employees’ requests in an ever-evolving space and with the increasing use of nonbinary pronouns.

Nonbinary Pronouns and Honorifics

Individuals have traditionally identified with binary sets of pronouns based on male and female gender expressions (i.e. he/him/his and she/her/hers). Increasingly, many individuals are expressing that they do not identify as either a “man” or “woman.” An estimated 11 percent of individuals who identity as LGBTQ in the United States (i.e., approximately 1.2 million people), identity as nonbinary, according to a recent study. The vast majority (76 percent) are between the ages of 18 and 29, the study found.

It is increasingly common for these individuals to go by gender-neutral, nonbinary pronouns, including they/them/theirs. Many others go by other nonbinary pronouns, such as ze (or zie)/zir/zirs; ne/nir/nirs; xe/xem/xir; and ve/ver/vis, or a growing set of nonbinary pronouns that are resurfacing or newly appearing within the U.S. vernacular. Similarly, honorifics, such as Mr., Miss, Mrs., Ms., Sir, and Madame reflect a binary gender view leading some individuals to go by “Mx.,” “Fren,” or another gender-neutral honorific.

The issue has particular significance for employers since the June 2020 decision by the Supreme Court of the United States in Bostock v. Clayton County, Georgia, which found that discrimination against gay and transgender individuals is a form of sex discrimination under Title VII of the Civil Rights Act of 1964. The high court reasoned that an adverse action against an individual because the individual is gay or transgender is a form of discrimination based on sex “because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” However, the Court left open several questions on how the ruling applies to sex-segregated restrooms, dress codes, grooming standards, and pronouns.

Following the decision, the Equal Employment Opportunity Commission (EEOC) issued new guidance on June 15, 2021, taking the position that “intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee could contribute to an unlawful hostile work environment” in violation of Title VII. This suggests there could be potential liability for employers who refuse to use a nonbinary employee’s correct pronouns. Further, while Title VII does not cover every employee in the United States, many state and local laws, such as California’s Fair Employment and Housing Council’s regulations and the New York City Human Rights Law (NYCHRL), provide similar or greater protection from gender identity discrimination.

Best Practices

It is increasingly becoming a commonplace practice for companies to permit employees to include their pronouns in their email signatures or on their social media profiles. This trend might just be the start. In light of the evolving movements in these areas, some employers may be struggling with how to support nonbinary individuals in their workplaces.

Safe Spaces

Some employers will take the stance that it is important to provide safe spaces for employees to identify their pronouns without pressure or the worry of retaliation in order to maintain an inclusive environment. Employers may further want to consider additional training for supervisors and other employees on how to handle everyday interactions regarding pronoun use. For example, employers may want to encourage employees to be comfortable with apologizing and correcting themselves if the wrong pronoun is used. This may be an especially important subject if an employee had started at the company using one set of pronouns and later realizes a different gender identity during the course of employment. A diversity, equity, and inclusion (DEI) committee or diversity liaisons can guide employers in facilitating these conversations.

Privacy Concerns

At the same time, employers are faced with the tension of ensuring respect for each individual’s privacy. In this regard, employers may want to be conscious that individuals generally will not want to be into a situation in which they must choose between using a nonbinary pronoun or facing inappropriate questions about their choice from management or co-workers. It may be necessary to keep pronoun sharing optional and to encourage employees to default to gender-neutral language where possible.

Gender-Neutral Corporate Communications and Record-Keeping

The Biden Administration, in March 2022, announced a series of federal government policy changes to allow U.S. citizens to identify as nonbinary, including allowing U.S. citizens to select an “X” gender marker on their U.S. passport applications. In accordance, the EEOC also announced that it would provide the option to use a nonbinary gender marker in the filing of a charge of discrimination. Several states have further allowed the use of a gender-neutral marker on state identity documents, including drivers’ licenses. Given these developments, employers may also want to consider using gender-neutral language in communications and updating their human resources demographic record-keeping procedures to allow for employees to be identified as nonbinary or with a gender-neutral marker.

Key Takeaways

The Bostock decisions and the proliferation of state and local anti-discrimination laws may require that employers make efforts to allow employees to share and be addressed by nonbinary pronouns. This could be critical in employer recruiting and retention with younger generations entering the workplace that are increasingly comfortable with expressing their nonbinary gender. Also, it is clear that accurate or appropriate pronouns and honorifics will continue to change. Employers may want to remain ready to adjust in this rapidly evolving space in order to provide inclusive environments and keep workplaces free of harassment and discrimination.

Companies seeking to create more inclusive workplaces for nonbinary individuals can find further information and guidance from a number of organizations that provide educational resources and technical assistance.

Article By Kelly S. Hughes, Alan J. Brozovich, and Zachary V. Zagger of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

New California Bill Would Prohibit Employers From Acting Against Workers for Off-Work Cannabis Use

A bill introduced in the California Assembly in February 2022 would prohibit employers from discriminating against workers and job applicants for off-duty marijuana use.

Assembly Bill (AB) 2188 would amend the Fair Employment and Housing Act to make it unlawful for employers to discriminate against job applicants or employees for the “use of cannabis off the job and away from the workplace.” It also would prevent discrimination against applicants or employees that fail drug tests detecting “nonpsychoactive cannabis metabolites in their urine, hair, or bodily fluids.” But, it would not permit employees “to be impaired by, or to use cannabis on the job.” AB 2188 also includes carveouts for building and construction trades employees, federal contractors, federal funding recipients, or federal licensees required to maintain drug-free workplaces.

AB 2188 would add to the current body of laws legalizing and regulating marijuana use in the Golden State. Indeed, Proposition 215 legalized the medical use of cannabis in 1996, while in 2016, Proposition 64 did so for recreational marijuana.

While the enactment of Prop. 64 represents a victory for recreational marijuana advocates, the legislation does not include language prohibiting employers from discriminating against employees for off-work recreational marijuana use. To the contrary, it expressly provides that employers will not be required to accommodate an employee’s use of marijuana. The legislative initiative stated that its purpose and intent were, among other things, to “[a]llow public and private employers to enact and enforce workplace policies pertaining to marijuana.”

Current cannabis regulations are consistent with the California Supreme Court’s holding in Ross v. Ragingwire Telecommunications, Inc. In that case the court examined the conflict between California’s Compassionate Use Act (which gives a person who uses marijuana for medical purposes on a physician’s recommendation a defense to certain state criminal charges and permission to possess the drug) and federal law (which prohibits the drug’s possession, even by medical users). The court held that the Compassionate Use Act did not intend to address the rights and obligation of employers and employees, and further noted that the possession and use of marijuana could not be a protected activity because it is still illegal under federal law.

AB 2188 is and reflects a further effort by some to legalize and regulate the non-medical use of marijuana. As of 2021, 18 states and a number of territories had enacted laws to regulate cannabis for adult non-medical use. While in the employment context, certain states have moved to grant employees some level of protection for medical use, others extended protection for non-medical use. Employers are prohibited from taking adverse action against workers or applicants’ recreational use in Montana, Nevada, New Jersey, New York, and soon, Connecticut.

AB 2188 passed the Assembly May 26 and was read in the Senate for the first time May 27. If it makes it to the governor’s desk, he will have until Sept. 30, 2022, to sign or veto it.

Article By Adam Bouka and Charles O. Thompson of  Greenberg Traurig, LLP

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©2022 Greenberg Traurig, LLP. All rights reserved.

Employment Related Lawsuits Are on the Rise. Are You Covered?

Gilbert LLP Law FirmOn September 25, 2014, the Equal Employment Opportunity Commission (“EEOC”) filed the first two suits in its history challenging transgender discrimination under the 1964 Civil Rights Act.  As discrimination litigation evolves, it is important to know whether your insurance coverage is evolving with it.

Coverage for employee-related lawsuits has always been important, but the increase in suits brought by the EEOC over the last several years (and the last several decades) has made employment practices liability (“EPL”) insurance of particular importance to protecting your company.  Last year, the EEOC recovered a record-setting $372.1 million.

Now, the scope of EEOC suits is increasing as a result of the EEOC’s ongoing efforts to implement its Strategic Enforcement Plan (“SEP”), adopted in December of 2012.  As part of its SEP, the EEOC makes “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions, as they may apply” a “top commission enforcement priority.”

Comprehensive general liability (“CGL”) policies, are a type of commercial third-party liability insurance.  Most businesses in the United States purchase CGL policies in order to protect against the risk of suits by third parties.  If a patron sues you for a slip and fall in your mom-and-pop shop, your CGL policy probably covers the suit.  Likewise, if you distribute across the entire country a product that allegedly causes bodily harm to thousands of people, your CGL policy probably covers the suits.

As broad as CGL coverage is, however, it is only one piece to a balanced insurance portfolio.  CGL policies typically exclude coverage for suits brought by employees of the company.  EPL polices step in to fill one part of the gap in coverage.  Other parts of the gap are filled by workman’s compensation policies and directors and officers liability policies.

A typical EPL policy may list a number of categories of protected classes covered by insurance, and then add coverage for “other protected classes.”  A policy may also protect against claims for “Discrimination,” and define that discrimination broadly to mean “any actual or alleged violation of any employment discrimination law.”  However, some polices offer more limited coverage.  For example, some carriers may restrict coverage to only sexual harassment.

Just as you protect your company from fire by installing sprinklers in your warehouses and doing regular safety inspections, it is imperative that you keep your employment practices up to date.  Educate your employees on proper workplace behavior, and try to think about ways to get ahead of the curve to minimize your liability for alleged workplace discriminations.

Just as discrimination litigation is evolving, other areas of litigation continue to evolve and create new risks for your company.  In addition, coverage law continues to evolve across the United States, on a state-by-state basis.  As coverage law evolves, it has a direct effect on the value of your insurance portfolio.

ARTICLE BY

João Santa-Rita
OF
Gilbert LLP