Articles Posted in Gender Discrimination

Lev Craig

Last year, we reported on North Carolina’s Public Facilities Privacy & Security Act, better known as “HB 2.” HB 2, which was passed in March 2016, required North Carolina public schools and agencies to separate bathrooms by “biological sex,” preventing many transgender people from using the bathroom consistent with their gender identity. In the wake of the passage of HB 2, many companies reduced or withdrew their business in North Carolina, and musicians and speakers cancelled scheduled events in protest of the new law. The state was even drawn into conflict with the federal government when, in May 2016, the United States filed suit against the State of North Carolina and Pat McCrory—the state’s Republican governor at the time—on the grounds that HB 2’s “bathroom provision” violated several federal anti-discrimination statutes, including Title VII of the Civil Rights Act of 1964.

The widespread opposition to HB 2 caused a serious hit to North Carolina’s economy and reputation, and in the year and a half since the law was passed, a number of North Carolina politicians and activists have pushed to repeal it. In March 2017, North Carolina repealed HB 2 with the passage of HB 142. The new bill was hampered, however, by two significant concessions to Republican legislators: a provision stating that regulating “access to multiple occupancy restrooms, showers, or changing facilities” would be left to the state, and a provision prohibiting local governments from “enact[ing] or amend[ing] an ordinance regulating private employment practices or regulating public accommodations.” These components of HB 142 mean that transgender North Carolinians remain vulnerable to discrimination; the state retains its power to control bathroom access, and local governments aren’t able to pass their own laws protecting LGBT constituents from discrimination in the workplace or public accommodations.

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.

Edgar M. Rivera, Esq.

On May 4, 2017, Mayor Bill de Blasio signed a law prohibiting employers from inquiring about a prospective employee’s salary history, which goes into effect on October 21, 2017. The Office of the Mayor hopes that preventing employers from asking questions during the hiring process about an applicant’s previous compensation—which is often used as a benchmark for a new employee’s starting pay—will end the “perpetuating cycle of suppressed wages” for minorities.

The new law prohibits an employer from asking about or using a job applicant’s compensation history to determine their salary during the hiring process, including the negotiation of a contract. An applicant’s salary history includes their current or prior wage, salary, benefits, or other compensation.  Employers are still allowed to discuss expectations about salary, benefits, and other compensation with a job applicant.  Further, if an applicant, voluntarily and without prompting, discloses their salary history to an employer, the employer may consider that information in determining the applicant’s salary, benefits and other compensation.

Edgar M. Rivera, Esq.

On August 22, 2017, in Edwards v. Nicolai, the First Department Appellate Division—the appellate court of the counties of New York and the Bronx—overturned the trial court’s decision to dismiss gender discrimination claims, allowing Plaintiff Dilek Edwards to pursue her claims against Defendants Charles V. Nicolai and his wife, Stephanie Adams, a former Playboy Playmate. Ms. Edwards alleges that Mr. Nicolai and Ms. Adams—co-owners of Wall Street Chiropractic and Wellness (WSCW)—discriminated against her by terminating her employment because she was sexually attractive.

In April 2012, Mr. Nicolai hired Ms. Edwards as a yoga and massage therapist. According to Ms. Edwards, her relationship with Mr. Nicolai was “purely professional,” and Mr. Nicolai “regularly praised Plaintiff’s work performance throughout her period of employment.” In June 2013, however, Mr. Nicolai allegedly “informed Plaintiff that his wife might become jealous of Plaintiff, because Plaintiff was too cute.” Approximately four months later, Ms. Adams sent Ms. Edwards a text message stating, “You are NOT welcome any longer at Wall Street Chiropractic, DO NOT ever step foot in there again, and stay the [expletive] away from my husband and family!!!!!!! And remember I warned you.” A few hours later, Ms. Edwards allegedly received an email from Mr. Nicolai stating, “You are fired and no longer welcome in our office. If you call or try to come back, we will call the police.”

Lev Craig

On August 10, 2017, the U.S. Circuit Court of Appeals for the Second Circuit vacated the lower court’s dismissal of the plaintiff’s sex discrimination and FMLA interference claims in Shultz v. Congregation Shearith Israel of the City of New York. The Second Circuit found that the defendant’s notice to the plaintiff of her future termination constituted an adverse employment action, even though the notice of termination was later revoked.

Alana Shultz began working as Program Director at a New York City synagogue in 2004. In June 2015, Shultz, who was pregnant at the time, got married and notified her employer that she was pregnant. Shortly after Shultz disclosed her pregnancy, the synagogue notified Shultz that her employment would be terminated effective August 14, 2015, purportedly due to “restructuring.” Suspecting that the supposed “restructuring” was pretext for terminating her because of her pregnancy and because the synagogue’s leadership “disapproved of the fact that she was pregnant at the time of her marriage,” Shultz retained counsel, who then notified the synagogue of Shultz’s intent to pursue legal claims. Several days later, the synagogue rescinded its notice of termination, telling Shultz that it had “reinstated” the Program Director position and that she would therefore retain her position.

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 and Harrison Paige

On March 27, 2017, the United States Circuit Court of Appeals for the Second Circuit reversed and remanded in part and affirmed in part the district court’s decision in Christiansen v. Omnicom Group, Incorporated, et al. Plaintiff Matthew Christiansen brought claims against his former employer under the Americans with Disabilities Act (“ADA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”), alleging discrimination on the basis of his HIV-positive status and his failure to conform to gender stereotypes. The lower court dismissed Christiansen’s federal claims for failure to state a claim; the Second Circuit upheld the dismissal of the ADA claim, but reversed the dismissal of the Title VII claim, finding that Christiansen had plausibly alleged a Title VII gender stereotyping claim.

Christiansen, an openly gay man who is HIV-positive, was the creative director for DDB Worldwide Communications Group Incorporated (“DDB”), an international advertising agency and Omnicom subsidiary. According to the complaint, Christian’s direct supervisor, Joe Cianciotto, subjected Christiansen to a “pattern of humiliating harassment targeting his effeminacy and sexual orientation.” Cianciotto allegedly drew offensive, obscene caricatures of Christiansen on an office whiteboard, the most explicit of which depicted Christiansen naked with an erection, captioned with a mocking comment about same-sex marriage. On another occasion, according to the complaint, Cianciotto created a “Muscle Beach Party” poster, which he circulated amongst office members and posted on Facebook, displaying DDB employees’ heads photoshopped onto the bodies of people in swimwear; on the poster, Christiansen’s head was pasted onto a photo of a woman in a bikini, lying on the ground with her legs upright in the air “in a manner that one coworker thought depicted Christiansen as ‘a submissive sissy.’”

Lev Craig

Earlier this month, the United States Court of Appeals for the Eleventh Circuit affirmed in part and vacated and remanded in part the district court’s decision in Evans v. Georgia Regional Hospital, holding that Title VII of the Civil Rights Act of 1964 (“Title VII”) does not prohibit sexual orientation discrimination in the workplace.

Jameka Evans worked at Georgia Regional Hospital (the “Hospital”) in Atlanta, Georgia, as a security officer. Evans, who is a lesbian, had a masculine gender presentation at work: she wore the men’s security officer uniform, men’s shoes, and a short, masculine haircut. According to Evans’ complaint, the Hospital discriminated against her because of her sexual orientation and because she did not behave in a “traditional woman[ly] manner.” Evans alleged that she was denied equal pay, harassed, physically assaulted, targeted for termination, and retaliated against after making a complaint of discrimination to the Hospital’s Human Resources department.

Shelby Krzastek

On March 8, 2017, Anita Poe-Smith filed suit against Epic Health Services, Inc. (“Epic”), and Leo and Sherrie Weigand, alleging sexual harassment and retaliation. Ms. Poe-Smith works for Epic as a home health aide.

In February 2015, Epic assigned Ms. Poe-Smith to work for a client residing in the home of Leo and Sherrie Weigand. Ms. Poe-Smith claims that from February 2015 to May 2015, Mr. Weigand sexually harassed her by directing sexual innuendos and inappropriate comments toward her and, ultimately, physically assaulting her when, according to Ms. Poe-Smith, Mr. Weigand pushed her down and hit her on her buttocks. After reporting the incident to Epic, Ms. Poe-Smith was offered a new assignment, which she was unable to accept because it interfered with her familial obligations. Several weeks later, Epic offered her another full-time assignment, which she accepted. Ms. Poe-Smith then sued Epic Health Services and the homeowners for sexual harassment and retaliation.

Harrison Paige and Lev Craig

On February 27, 2017, the United States Court of Appeals for the Eleventh Circuit affirmed the lower court’s ruling in Kalu v. Florida Department of Children and Families, a gender discrimination suit brought under the Equal Pay Act (“EPA”). The Eleventh Circuit affirmed the district court’s summary judgment in favor of the defendant, a Florida state hospital, finding that plaintiffs—two female nurse practitioners at the hospital—had failed to show that a $20,000 disparity between their pay and a male nurse practitioner’s salary constituted unlawful gender discrimination in violation of the EPA.

Plaintiffs Patricia Kalu and Susan Linder-Wyatt worked as nurse practitioners at a hospital managed by the Florida Department of Children and Families. When plaintiffs discovered that they made nearly $20,000 less than Michael Peel, a male nurse practitioner with identical job responsibilities, they filed suit in the United States District Court for the Northern District of Florida, alleging that the pay disparity between female and male nurse practitioners violated the EPA. The district court granted summary judgment, finding that plaintiffs had failed to show that the hospital’s pay disparity was discriminatory, and plaintiffs appealed to the Eleventh Circuit.