Articles Posted in EEOC

Edgar M. Rivera, Esq.

On November 4, 2016, the Western District of Pennsylvania—joining the Middle District of Alaska, District of the District of Columbia, District of Oregon, and Central District of California—held that a gay person has standing to bring a sex discrimination claim under Title VII of the Civil Rights Act of 1964 (Title VII). In EEOC v. Scott Medical Health Center, the Complainant, Dale Baxley, alleges that his supervisor, Robert McClendon, Scott Medical Health Center’s telemarketing manager, subjected him to a hostile work environment because he is a gay man. After Scott Medical Health Center’s president and chief executive officer allegedly ignored his complaint about the discrimination and harassment, Mr. Baxley quit.

In the complaint, Mr. Baxley alleges that Mr. McClendon called him a “fag,” “faggot,” “fucking faggot,” and “queer,” and, after learning that Mr. Baxley had a male partner, made statements such as “I always wondered how you fags have sex,” “I don’t understand how you fucking fags have sex,” and “Who’s the butch and who is the bitch?” The Equal Employment Opportunity Commission (EEOC) argued that Title VII covered this type of harassment as, had it not been but for Mr. Baxley’s sex, he would not have been subjected to this harassment. The court agreed, stating that Title VII’s “because of sex” provision prohibits discrimination on the basis of sexual orientation.

Lev Craig

Last week, in Equal Employment Opportunity Commission v. R.G. & G.R. Harris Funeral Homes, Inc., the federal district court for the Eastern District of Michigan ruled on summary judgment that a funeral home’s termination of a transgender employee did not violate Title VII because the employer was entitled to a religious accommodation under the Religious Freedom Restoration Act (“RFRA”).

In October 2007, Aimee Stephens, started working at R.G. & G.R. Harris Funeral Homes, Inc. (the “Funeral Home”) as a funeral director and embalmer. On July 31, 2013, Ms. Stephens wrote a letter to the Funeral Home, in which she came out as transgender. In this letter, Ms. Stephens informed the Funeral Home that, as part of her transition from male to female, she planned to wear women’s clothing to work in accordance with the Funeral Home’s gendered dress code, which mandates that male employees wear a suit and tie and that female employees wear a skirt suit.

Owen H. Laird, Esq.

On March 25, 2016, we reported on landmark lawsuits filed by the Equal Employment Opportunity Commission (“EEOC”) in a blog titled “EEOC Files Landmark Lawsuits Alleging Sexual Orientation Discrimination Under Title VII.” In these cases, the EEOC asserted claims of sexual orientation discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”) on behalf of workers.  Title VII provides the basic anti-discrimination protection that most employees in the United States enjoy.  These new cases are significant because they mark a departure from the previous interpretation of sexual orientation under Title VII: treating sexual orientation as a protected characteristic under Title VII where it previously had not been viewed as such.

Title VII protects against discrimination on the basis of sex. The EEOC asserted that sexual orientation claims constitute a form of sex discrimination, arguing that sexual orientation and sex are inherently linked and that sexual orientation discrimination involves gender stereotypes and adherence to gender norms. While some states and municipalities have enacted laws explicitly protecting against sexual orientation discrimination, the EEOC’s expansion of Title VII brought these protections to millions of American workers who do not live in regions with state or local anti–sexual orientation discrimination statutes.

Edgar M. Rivera, Esq.

Women often are the victims of gender discrimination when they apply for traditionally “male” jobs. This type of gender discrimination is particularly pernicious because it is a vicious cycle: a “man’s job” is a “man’s job” because men tend to do it, which discourages interested women from applying because doing so goes “against their sex.” Thus, when women inevitably do not apply, the job remains only a “man’s job.” According to the World Bank, “Gender segregation in access to economic opportunities in turn reinforces gender differences in time use and in access to inputs, and perpetuates market and institutional failures.”  As a result, women—especially those less educated who live in poorer regions—face greater challenges than men finding work and supporting themselves and their families.

To fight these market and institutional failures in the United States, Congress enacted Title VII of the Civil Rights Act of 1964, which prohibits discrimination against women in employment. Enforced by the U.S. Equal Employment Opportunity Commission, Title VII is the U.S.’s principal defense against sex discrimination.

Edgar M. Rivera, Esq.

“Dating on the job is like eating at your desk: Invariably, it’s going to get messy,” said Mark Oldman, co-founder and director of Vault.com. Title VII prohibits employers from discriminating against an employee with respect to compensation, terms, conditions, or privileges of employment because of such individual’s sex. In Meritor Savings Bank, FSB v. Vinson, the U.S. Supreme Court recognized sexual harassment as a type of sex discrimination. “[W]hen a supervisor sexually harasses a subordinate’s sex, that supervisor ‘discriminate[s]’ on the basis of sex.” Under Title VII, there are two cognizable claims of sexual harassment: hostile work environment and quid pro quo. A sexually hostile work environment occurs where the harassment is so severe or pervasive that is “alter[s] the conditions of [the plaintiff’s] employment and create[s] an abusive working environment.” Quid pro quo sexual harassment occurs where a boss coerces a subordinate to participate in a sexual relationship or retaliates against her by punishing her for refusing sexual advances. But what about a consensual sexual relationship between a boss and a subordinate? Is that permissible under Title VII?

Although co-workers in sexual relationships may knowingly or subconsciously give each other preferential treatment, favoritism is not usually sex-based discrimination, even if it is bad for business. A “paramour” claim occurs where a supervisor promotes their in-office lover before other more qualified employees, raises their salary, or otherwise grants them benefits not awarded to other employees. However, almost universally, courts have held that a co-worker that is disadvantaged by an employer’s in-office sexual relationship cannot bring an action against that employer for the simple reason that such discrimination is not because of “sex” within the meaning of Title VII. Instead, it is because of a personal relationship; therefore, it is not actionable.

Lev Craig and Edgar M. Rivera, Esq.

When Philip Sullivan decided to apply for a warehouse job at Grisham Farm Products, Inc. (Grisham), he learned that Grisham required all applicants to complete a 3-page “Health History” as part of their employment application. This form asked applicants to respond to 43 questions concerning their medical histories, including whether they had consulted with a healthcare provider in the past 24 months or suffered from specific medical issues, such as heart conditions, depression, and sexually transmitted infections, among others.

As Mr. Sullivan has disabilities, he was worried that his answers would reveal them and thus negatively impact his chances in the hiring process; therefore, he decided not to apply for the job and instead contacted the Equal Employment Opportunity Commission (EEOC). The EEOC sued Grisham on his behalf, alleging violations of the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act of 2008 (GINA). The ADA prohibits employers from inquiring into a person’s medical history before making a conditional offer of employment, and GINA prohibits employers from requesting genetic information from job applicants.

Edgar M. Rivera, Esq.

On June 2, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) proposed enforcement guidance addressing national origin discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”). The guidance sets forth the agency’s interpretation of national origin discrimination under Title VII. This enforcement guidance will supersede the 2002 EEOC Compliance Manual, Vol. II, Section 13: National Origin Discrimination.

Title VII prohibits an employer from treating its employee unfavorably due to his or her national origin, which includes discrimination based on ethnicity, the appearance of an ethnic background, or the association with a particular country or part of the world. National origin discrimination often overlaps with race, color, or religious discrimination because a national origin group may be associated or perceived to be associated with a particular religion or race. For example, discrimination against people with origins in the Middle East may be motivated by race (Arab), by national origin (Jordan), or religion (Islam). As a result, the same set of facts may state claims alleging multiple bases of discrimination. The proposed guidance also includes three new areas of coverage: job segregation, human trafficking, and intersectional discrimination.

Lucie Rivière and Edgar M. Rivera, Esq.

In January 2013, the U.S. Equal Employment Opportunity Commission (“EEOC”), the federal agency tasked to enforce the Title VII of the Civil Rights Act of 1964 (“Title VII”), adopted its Strategic Enforcement Plan (“SEP”) for the 2013-2016 time period, in which it identified the importance of addressing emerging and developing issues as one of its six national priorities. Specifically, EEOC wants to expend the protection of lesbian, gay, bisexual and transgender individual under Title VII.

On March 1, 2016, the EEOC filed two lawsuits asserting sexual orientation discrimination claims under Title VII. In U.S. Equal Employment Opportunity Commission v. Scott Medical Health Center, P.C., Case No. 2:16-cv-00225-CB (W.D. Pa. Mar. 1, 2016), the EEOC alleges that a gay male employee was subjected to harassment because of his sexual orientation. In U.S. Equal Employment Opportunity Commission v. Pallet Companies d/b/a IFCO Systems, NA, Inc., Case No. 1:16-cv-00595-RDB (D. Md. Mar. 1, 2016), the EEOC alleges that a supervisor harassed a lesbian employee because of her sexual orientation. In both cases, the EEOC argues that the defendants conduct occurred in violation of Title VII.

Yarelyn Mena and Edgar M. Rivera, Esq.

On April 20, 2015, the Equal Employment Opportunity Commission (EEOC) issued a notice of proposed rulemaking (NPRM) addressing employer wellness programs that are part of a group health plan and its relation to Title I of the Americans with Disabilities Act (ADA).

A wellness programs is an employee health program that “is reasonably designed to promote health or prevent disease.” Many employers offer wellness programs in the form of programs and activities, typically through employer-provided health plans, to maintain and improve employee health as well as to reduce health care costs. While some wellness programs only ask employees to engage in healthier behavior, such as by encouraging exercise or quitting smoking, legal issues arise when a wellness programs seeks employees’ medical information, require employees complete a health risk assessment, or require employees undergo screening for health risk factors.

Yarelyn Mena

Employment discrimination can occur at the application stage; an individual does not need to be a current or former employee to bring a discrimination claim. It is important for everyone in the labor force to know that prospective employees are also protected by antidiscrimination laws.

Prospective employees generally do not attend a job interview on the alert for an interviewer’s discriminatory questions but, according to a survey conducted by the job search website CareerBuilder, twenty percent of hiring managers ask “off-limits” questions during interviews. The following is a list of ten categories that candidates should be weary of if interviewers breach these topics. It is important to note that although many of these questions are not explicitly illegal to ask, they give rise to an inference of discrimination.