Articles Posted in EEOC

Lev Craig

On October 5, 2017, U.S. Attorney General Jeff Sessions issued a memo to the heads of all federal government agencies and all U.S. attorneys, stating that the U.S. Department of Justice (DOJ) is now taking the position that Title VII of the Civil Rights Act of 1964 does not prohibit discrimination on the basis of gender identity or transgender status. The memo reverses the DOJ’s previous stance on the issue and runs contrary to the position taken by the Equal Employment Opportunity Commission (EEOC), as well as various federal appellate and district courts.

While Title VII explicitly prohibits discrimination on the basis of sex, there has been heated debate in recent years over whether that prohibition includes discrimination against transgender workers. The status of legal protections for transgender employees is complicated: no federal law explicitly forbids discrimination against transgender people in the workplace, state and city employment protections vary widely, and the U.S. Supreme Court has yet to address the question of whether Title VII covers gender identity­–based discrimination. The EEOC views discrimination against transgender people as discrimination based on sex and therefore a violation of Title VII, but the EEOC’s interpretations of Title VII are not legally binding, and federal appellate and district courts have differed in their applications of the statute to transgender workers.

Owen H. Laird

The Harman Firm blog has run several stories over the past year about the evolving case law concerning sexual orientation discrimination under Title VII of the Civil Rights Act.  Last week, a plaintiff in a sexual orientation discrimination case in the Eleventh Circuit, Evans v. Georgia Regional Hospital, requested that the United States Supreme Court take up the issue.

To recap: Title VII is one of the foundational federal anti-discrimination statutes; it protects employees against discrimination on the basis of sex, race, color, national origin, and religion.  Sexual orientation is not one of the protected statuses enumerated in Title VII.  In 2016, however, the U.S. Equal Employment Opportunity Commission (“EEOC”) – the federal agency tasked with administering Title VII – filed two lawsuits asserting sexual orientation discrimination claims under Title VII.  This was a major change, as both the EEOC and nearly every federal court had previously taken the position that sexual orientation discrimination was not prohibited under Title VII.

Lev Craig

Last week, on July 6, 2017, the U.S. District Court for the District of Minnesota granted summary judgment in favor of defendant in EEOC v. North Memorial Health Care, finding that a Minnesota hospital had not violated Title VII of the Civil Rights Act of 1964 (Title VII) when it withdrew a nurse’s conditional employment offer after she requested a religious accommodation. The court held that the act of requesting a reasonable accommodation did not, in and of itself, constitute protected activity under Title VII. Consequently, North Memorial’s withdrawal of plaintiff’s job offer, as a matter of law, could never give rise to a Title VII retaliation claim. This decision contradicts the Equal Employment Opportunity Commission’s (EEOC) guidance, which includes requests for religious accommodations as protected activity.

Emily Sure-Ondara, the plaintiff in North Memorial, is a nurse and a practicing Seventh Day Adventist (a Protestant Christian denomination). In November 2013, Sure-Ondara was recruited for a registered nurse position at North Memorial. She applied for the job, and, after a series of successful interviews, North Memorial extended her a conditional offer of employment. According to the terms of the conditional job offer, Sure-Ondara was scheduled to work the night shift—11:00 p.m. to 7:00 a.m.—and weekends, every other weekend.

By Harrison C. Paige

On April 18, 2017, the U.S. Circuit Court of Appeals for the Second Circuit affirmed the U.S. District Court for the Eastern District of New York’s decision in Zarda v. Altitude Express, dismissing Donald Zarda’s sexual orientation discrimination claims brought under Title VII of the Civil Rights Act of 1964 (“Title VII”). In reaching its decision, the Second Circuit relied on its 2000 decision in Simonton v. Runyon, where the court held that Title VII does not protect against discrimination based on sexual orientation. However, on May 25, 2017, the Second Circuit granted en banc review in Zarda, signaling that the Second Circuit may be ready to reexamine Simonton and revisit its position on Title VII sexual orientation discrimination claims.

In Simonton, Dwayne Simonton, a postal worker, was harassed because of his sexual orientation. The harassment was so severe that Simonton suffered a heart attack as a direct result of the abuse. While the Second Circuit’s decision noted the severity of the harassment and rebuked the behavior, the court nonetheless held that Title VII’s prohibition against discrimination based on “sex” does not include discrimination based on sexual orientation and dismissed Mr. Simonton’s Title VII sexual orientation discrimination claims. The precedent set by Simonton has prevented countless individuals from bringing sexual orientation discrimination claims under Title VII, leaving individuals stranded in their search for justice.

Lev Craig

On June 15, 2017, U.S. District Judge John G. Koeltl of the Southern District of New York approved the parties’ consent decree in United States v. City of New York, a race discrimination case brought against the City of New York and the New York City Department of Transportation (NYCDOT) under Title VII of the Civil Rights Act of 1964 (Title VII). The lawsuit, filed by the U.S. Department of Justice (DOJ) in January 2017, alleged that NYCDOT management violated Title VII by systematically discriminating against racial minorities over a nearly ten-year period.

According to the complaint, the NYCDOT “engaged in a pattern or practice of racial discrimination and retaliation based on the failure to promote minority employees” within the Fleet Services unit, an NYCDOT division responsible for maintaining NYCDOT vehicles such as trucks, passenger cars, and heavy machinery. The complaint described a “culture of fear and intimidation” created by nearly a decade of discrimination and retaliation against minority employees in the Fleet Services Unit, perpetrated primarily by two NYCDOT executive directors.

Lev Craig

On May 3, 2017, in Philpott v. State of New York, the U.S. District Court for the Southern District of New York refused to dismiss sexual orientation discrimination claims brought under Title VII of the Civil Rights Act of 1964 (Title VII). Judge Alvin K. Hellerstein of the Southern District of New York joined a growing number of courts across the country in finding sexual orientation discrimination cognizable under Title VII, stating, “I decline to embrace an illogical and artificial distinction between gender stereotyping discrimination and sexual orientation discrimination.”

Plaintiff Jeffery Philpott was employed at the SUNY College of Optometry as Vice President of Student Affairs, where, according to his complaint, he was subjected to years of discrimination and harassment because he is gay. Philpott alleges that his supervisors and coworkers mockingly called him “sensitive” and “flamboyant,” told him that “separate but equal treatment of gay people might be best,” dismissively referred to his relationship with his long-term domestic partner as “this marriage, or whatever you want to call it,” and refused to let him meet their families because they did not “want our children to be around homosexuality.” In addition, SUNY allegedly excluded him from meetings and projects because of his sexual orientation and implied that he deserved a lower salary because he is gay, telling him that “your team [i.e., gay people] doesn’t have kids. You have more than you need.” Shortly after Philpott complained to SUNY of the ongoing discrimination, Philpott claims, SUNY terminated his employment. Philpott filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), then filed suit in federal court, alleging hostile work environment, wrongful termination, and retaliation claims under Title VII.

Lev Craig

On September 21, 2016, the Eleventh Circuit Court of Appeals affirmed the Southern District of Alabama’s decision in Equal Employment Opportunity Commission v. Catastrophe Management Solutions, in which the district court held that an employer’s policy prohibiting employees from having dreadlocks did not constitute race discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII).

In May 2010, Chastity Jones, who is Black and wears her hair in dreadlocks, completed an online employment application for a customer service representative position at Catastrophe Management Solutions (CMS), an insurance claims processing company based in Mobile, Alabama, and was selected for an in-person interview. Ms. Jones performed well in her interview, and CMS hired her for the customer service representative position on the spot.

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.