Articles Posted in Title VII

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.’”

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.

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.

Harrison Paige

In Edwards v. Oklahoma Bureau of Narcotics and Dangerous Drugs Control, Chris Edwards, a Black man, brought claims under Title VII of the Civil Rights Act of 1964 (“Title VII”), alleging that the Oklahoma Bureau of Narcotics and Dangerous Drugs Control (“OBN”) refused to promote him to the Agent in Charge (“AIC”) position because of his race. On January 30, 2017, the U.S. District Court for the Western District of Oklahoma denied OBN’s motion for summary judgment.

In its motion, OBN argued that Mr. Edwards did not receive the promotion because he (1) was not qualified for the position, and (2) performed poorly during the interview. In response, Plaintiff argued that, with respect to the first point, OBN did not consider qualification in its decision. Mr. Edwards alleged that the OBN division director responsible for hiring for the AIC position, Darrell Weaver, preselects candidates for promotions and holds sham interviews to hide the preselection, thereby making a candidate’s qualifications for the position obsolete. In support, Mr. Edwards alleged that, on previous occasions, Mr. Weaver had sent employees through “chief school” before those employees had been promoted to the “chief” position; Mr. Weaver then held interviews with those two employees for the chief role and, unsurprisingly, chose them for the job.

Lev Craig

Last Friday, the parties submitted a settlement agreement for approval in Cote v. Walmart, a class action suit filed in federal court alleging that Walmart discriminated against gay Walmart employees by denying spousal health insurance coverage to same-sex married couples. The settlement would provide $7.5 million for current and former Walmart employees who could not obtain employer health insurance benefits for their same-sex spouse.

The suit was the first class action filed on behalf of gay employees after the Supreme Court’s June 2015 ruling extending marriage equality in Obergefell v. Hodges, according to the Boston-based LGBT legal advocacy group GLAD. Jackie Cote filed suit in the District of Massachusetts in July 2015, bringing claims against Walmart under Title VII of the Civil Rights Act of 1964 (Title VII) and the Massachusetts Fair Employment Practices Law on behalf of Walmart employees who were married to a same-sex spouse and did not receive spousal health insurance benefits from Walmart between 2011 and 2013.

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.