Articles Posted in 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.

Harrison Paige

In Equal Employment Opportunity Commission v. Consol Energy, Inc., a jury found that Consol Energy, Inc., violated Title VII of the Civil Rights Act of 1964 (Title VII) by constructively discharging Beverly Butcher, Jr., after he requested a religious accommodation related to his use of Consol’s new biometric scanning technology. Consol filed post-verdict motions, all of which were denied, then appealed to the U.S. Circuit Court of Appeals for the Fourth Circuit. The Fourth Circuit found in favor of Butcher, finding no fault in the logic or judgment of either the jury or the West Virginia district court.

Butcher worked for Consol for almost 40 years before the company implemented a biometric hand scanner, intended to help the company more efficiently track its employees’ hours worked. Butcher, who is a devout evangelical Christian, was uncomfortable with the new system because he subscribes to a literal interpretation of the authority of biblical scriptures. Butcher explained to Consol that his adherence to the Book of Revelation’s verses regarding the “Mark of the Beast” prohibits him from using a biometric hand scanner because—although the scanner does not imprint any physical mark on the individual using it—using the scanner would nonetheless mark Butcher as a supporter of the Antichrist. Butcher requested a religious accommodation from Consol after the system was implemented, writing a detailed letter that cited Bible verses and explained why he was not comfortable using the scanner. Consol refused Butcher’s request and required him to obtain a letter from his church supporting the requested accommodation.

By Edgar M. Rivera

On May 24, 2017, the Eighth Circuit Court of Appeals affirmed the district court’s dismissal of plaintiff Brittany Tovar’s sex discrimination claim under Title VII of the Civil Rights Act of 1964 (Title VII). The court held that Defendant Essentia Health’s denial of insurance coverage for Ms. Tovar’s son’s transition-related medical procedures did not state a claim for sex discrimination under Title VII, since Ms. Tovar did not suffer discrimination based on her own sex and therefore lacked statutory standing.

Ms. Tovar, a nurse practitioner, worked for Essentia Health from 2010 to 2016. During her employment at Essentia Health, she was enrolled in an employer-provided health insurance plan that also covered her teenage child, who is a transgender boy, meaning that he was designated female at birth but identifies as male. In 2014, doctors diagnosed Ms. Tovar’s son with gender dysphoria and recommended various treatments, including medications and gender reassignment surgery, for which Ms. Tovar sought coverage under her employer’s insurance plan.

By Edgar M. Rivera, Esq.

On May 15, 2017, the District Court for the Northern District of Illinois denied the Township High School District 214’s motion to dismiss in Valdivia v. Township High School District 214, where Noemi Valdivia, a Hispanic high school secretary, claimed that co-workers’ derogatory comments about Hispanic students and their families forced her to resign.  She brings a hostile work environment claim based on race under Title VII of the Civil Rights Act of 1964 (Title VII) and an interference claim for defendant’s failure to inform her that she was eligible for 12 weeks of leave under the Family and Medical Leave Act (FMLA).

Ms. Valdivia began working at District 214’s Elk Grove High School in 2010. Although she claims that her coworkers had always made derogatory remarks about Hispanic students and their families, in September 2014, these remarks became more frequent. For example, one of her peers allegedly said that Hispanic people “came to America” and “want everything for free even though they have new cell phones and their nails done.” Another told Ms. Valdivia not to speak Spanish at work because they were in “America.” Ms. Valdivia claims that she complained to both the school principal and the assistant principal, but both told her there was nothing they could do since “the secretaries’ union was too strong.”

Lev Craig

On May 9, 2017, the U.S. Court of Appeals for the Second Circuit denied summary judgment in Ahmed v. Astoria Bank, where plaintiff Sherin Ahmed brought religion, race, and national origin discrimination claims against her former employer. The Second Circuit held that the district court had erred in concluding that Ahmed had not presented evidence of discrimination and harassment sufficient to meet the threshold for a hostile work environment claim under Title VII of the Civil Rights Act of 1964 (“Title VII”). As such, the court vacated the lower court’s granting of summary judgment, allowing the case to proceed to trial.

Ahmed, who is originally from Egypt and immigrated to the U.S. in 2001, is a practicing Muslim woman and wears a hijab as part of her religious observance. In 2013, Ahmed interviewed for a quality control analyst position at Astoria Bank, a Long Island City­-based bank serving the New York metropolitan area, and was hired, conditional upon a 90-day probationary period. But, she alleges, Astoria Bank discriminated against her based on her race, religion, and national origin beginning as early as the day of her interview, when Anthony Figeroux, a Vice President at the bank, told her that she and two other Middle Eastern employees were “suspicious” and that he was glad he was “in the other side of the building in case you guys do anything.”

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

In October, we reported that the U.S. Court of Appeals for the Seventh Circuit had vacated its July 2016 decision in Hively v. Ivy Tech Community College, where a former adjunct college professor brought suit under Title VII of the Civil Rights Act of 1964 (“Title VII”), alleging that her employer had refused to hire her for a full-time position because she is a lesbian. Yesterday, April 4, 2017, the Seventh Circuit reversed the district court’s decision and became the first Court of Appeals to hold that “discrimination on the basis of sexual orientation is a form of sex discrimination.”

Kimberly Hively, who is openly gay, started teaching part-time at Ivy Tech Community College in 2000. Between 2009 and 2014, she unsuccessfully applied for six different full-time positions. When the college also failed to renew her part-time contract in July 2014, Hively filed a charge of discrimination with the Equal Employment Opportunity Commission and subsequently brought suit pro se in the U.S. District Court for the Northern District of Indiana, alleging that she had been denied employment opportunities because she is a lesbian. The district court dismissed Hively’s complaint on the grounds that Title VII did not cover sexual orientation discrimination, and Hively appealed.

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.’”