Category Archives: Discrimination and Harassment

In a landmark decision, the Equal Employment Opportunity Commission has ruled that Title VII’s prohibition on sex discrimination is broad enough to encompass discrimination based on gender identity and transgender status. The Commission held that Mia Macy, the complainant, was entitled to have her discrimination claims investigated by the federal agency that denied her a job, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (still referred to as the ATF, despite that final E).

According to the EEOC’s decision, Macy was living as a man and working as a police detective in Phoenix, Arizona, when she heard that the ATF has an open position at its crime laboratory in Walnut Creek, California. Macy was planning to move to the San Francisco Bay Area, and contacted the agency about the position in late 2010 or early 2011. Macy was told twice that the job was hers pending completion of a background check. Macy was also told that she would be working as an outside contractor through a company called Aspen of DC. In March of 2011, Macy contacted Aspen and asked them to inform the Walnut Creek lab that she was transitioning from male to female. Five days later, Aspen informed Macy that it had passed the information on. Five days after that, Macy was told that the job was no longer available due to budget cuts.

Finding the timing of the decision questionable, Macy contacted an EEO counselor at the ATF to ask about the situation. (This is how federal agencies handle discrimination issues: The employee or applicant must first complain to the very agency he or she believes committed discrimination. The agency then decides how to handle the charge; typically, the agency investigates and makes a decision, which the employee can appeal to the EEOC.) Macy was then told that the position had actually been filled by someone else who was farther along in the background investigation process. Finding this even more questionable, Macy filed a discrimination complaint with the ATF, stating that she was discriminated against based on sex, sex stereotyping, and gender identity.

The ATF said it would process her claim of sex discrimination, but would defer her claim of gender identity discrimination to a separate procedure, as that claim was not cognizable under Title VII. Macy appealed, claiming that by dividing her complaint up like this, the ATF was effectively denying her basic allegation that she was not hired because she revealed her transgender status. And, the EEOC agreed, finding that claims of discrimination based on gender identity and transgender status are claims of sex discrimination, and fall under Title VII’s prohibitions. The Commission pointed out what previous cases made clear: Discrimination based on sex includes discrimination based on gender — and gender encompasses not just a person’s biological sex at birth, but also “the cultural and social aspects associated with masculinity and femininity.”

The Supreme Court had already held that refusing to promote a woman because she did not act or dress in stereotypically feminine ways was a form of sex discrimination. In Macy’s case, the Commission held that discrimination based on gender identity or gender nonconformity was, inescapably, a form of gender discrimination: The employer is making a decision based on perceptions of how a person who is “male” or “female” should look, dress, and act. In an interesting comparison, the EEOC pointed out that Title VII’s prohibition on religious discrimination would protect an employee whose employer fired her because she converted from one religion to another. Even if the employer claimed to be biased only against “converts,” this would still constitute religious discrimination — and it would not create a “new” protected class. The Commission sent the case back to the ATF for proper processing as a cognizable complaint.

As the Commission’s decision notes, other courts have reached similar conclusions, so in some ways this case is merely the next step in that evolution of the law. At the same time, this is a huge development — and a huge victory for the LGBT community. The EEOC is the enforcer of the nation’s civil rights, and its decisions are tremendously influential. What makes this case even more interesting is that the sex stereotyping claim is potentially quite strong (I say potentially because the only known fact at this point is the timing of the decision which, while suspicious, isn’t dispositive). Macy’s skills and experience were all in traditionally male endeavors. She was a police detective, applied for a job as a ballistics technician, and according to news reports, is also a veteran. As the EEOC pointed out, the gender identity claim may not even be necessary for her to win. If the ATF simply wanted to hire a man for the job, and disqualified her once she transitioned to living as a woman, it’s a plain old sex discrimination case.

Last week, the Supreme Court decided a case involving a state employee who sued for violation of the Family and Medical Leave Act (FMLA), Coleman v. Court of Appeals of Maryland. The arguments in the case were about federalism: how far one sovereign (the federal government, acting through Congress) can go in imposing liability on another (a state government). However, in reaching its decision — against the employee — the Court missed the entire point of the FMLA.

The facts are pretty basic: Daniel Coleman asked his employer, the Maryland Court of Appeals, for sick leave. His employer denied his request and told him he would be fired if he didn’t resign. Coleman sued for violation of the FMLA, charing that his employer failed to grant him time off for his own serious health condition as required by the law. His employer defended itself by saying that it was immune from suit because Congress didn’t have the right to subject it to money damages for violating the FMLA.

In our federal system of government, there are limits on the obligations Congress can impose on the states. At issue in this case was Congress’s right to enforce the guarantees of the Equal Protection Clause of the Constitution, which the federal government has used to remedy discrimination by the states (originally, race discrimination against the newly freed slaves). To subject a state to monetary damages under a federal law, that law must clearly indicate that intent; must be tailored to remedy or prevent Equal Protection violations; and must impose remedies that are proportional to that goal. In this case, what everyone disagreed about was whether or not the provisions allowing leave for an employee’s own serious health condition was intended to address sex discrimination, which violates the Equal Protection Clause.

The Supreme Court decided years ago that the FMLA’s provision allowing leave to care for family members was intended to remedy sex discrimination, and so could properly be enforced against the states for money damages. Because women are still the primary care providers in our society, the Court had no trouble finding that the caregiver provision was aimed at sex discrimination. In the Coleman case, however, the Court found that the self-care provision — the allowance of time off for the employee’s own serious health care condition — addressed discrimination based on illness, not discrimination based on gender. Therefore, the Court found that Congress didn’t have the right to require states to pay money damages for violating this section of the law.

Unfortunately, in parsing the case so finely, the Court ignored the history and purpose of the FMLA. The FMLA was born of disputes over pregnancy leave. Women’s rights advocates were divided as to how to address this fundamental difference between the sexes in the workplace. Fighting for pregnancy leave and time off to recover from childbirth seemed necessary to safeguard women’s right to workplace equality; yet it also created a fundamental difference in the way employers were to treat men and women, with the possible outcome that employers would discriminate against women to avoid having to provide this benefit. The FMLA — and specifically, the right to time off for one’s own serious health condition, the category of leave that includes pregnancy and childbirth — was the eventual solution. By making the right to leave gender-neutral, advocates hoped to frame pregnancy as just one of the many reasons why an employee might need time off, and thereby diminish the likelihood of sex discrimination among employers while also protecting the right to leave. By allowing parental and caregiving leave for men and women equally, the FMLA also sought to break the sex-based stereotype of women as primary caregivers. The whole law as a package, and particularly the provision allowing leave for one’s own serious health condition, was intended precisely to combat sex discrimination. Justice Ginsberg’s dissent explains this history and intent clearly, as does the amicus brief of the National Partnership for Women & Families, the group that was instrumental in drafting and advocating for the law decades ago.

Last week, the Equal Employment Opportunity Commission (EEOC) issued revised versions of two of its publications interpreting the Americans with Disabilities Act for veterans with disabilities. The EEOC’s press release announcing the revisions include a forceful statistic: About 25% of recent veterans report having a service-connected disability. This is roughly twice the rate reported by all veterans. This change, along with the expansion of the ADA in the ADA Amendments Act, add up to a significant increase in the number of veterans who are protected by the ADA.

The broader definition of “disability” in the ADA Amendments Act to include impairments that limit major bodily functions (such as the proper working of the brain and neurological functioning) and to include episodic impairments that are disabling when active are particularly relevant to veterans. These changes mean that service-related injuries such as trauma to the brain and post-traumatic stress disorder will almost certainly qualify as disabilities.

The guidelines also provide detailed examples of reasonable accommodations for veterans with disabilities, such as:

• providing a glare guard for the computer screen of an employee with a traumatic brain injury
• providing a job coach or modifying supervisory methods for an employee who has difficulty with concentration and memory, and
• modifying equipment and work space for an employee who uses a wheelchair.

In addition to the ADA, the guidelines provide information on the Uniformed Services Employment and Reemployment Rights Act (USERRA), affirmative action programs for veterans, and more.

Last week, the Supreme Court decided an employment discrimination case against a Lutheran school, Hosanna-Tabor v. EEOC. The case involved a teacher who claimed she was fired in retaliation for asserting her rights under the Americans with Disabilities Act. (The teacher, Cheryl Perich, had taken a leave of absence after being diagnosed with narcolepsy, and was asked to resign when she tried to return to work.) The school argued that it had to be free to choose the employees who acted in a ministerial role, and that its decision to fire Perich was therefore beyond the reach of the civil court system. The Supreme Court agreed, for the first time explicitly recognizing a “ministerial exception” to the ADA and other federal civil rights laws.

The parties agreed on the facts of the case. Perich was what the school refers to as a “called” teacher, which means she had completed a course of instruction on the Church’s beliefs and was asked to teach under the formal title “Minister of Religion, Commissioned.” This position gave Perich certain advantages over the school’s lay teachers, including more job security and some tax breaks. Perich’s duties were largely the same as those of the lay teachers.

Perich was diagnosed with narcolepsy and was out on disability leave at the start of the 2004-2005 school year. In January of 2005, she told the school she was ready to return soon; the school had already hired a lay teacher to replace her for the rest of the year. The congregation of the Church voted to give her a “peaceful release” from her call, by which it would pay a portion of her health insurance premiums if she resigned. Her response was not to peaceful: She refused to resign, told the school her doctor had released her to return to work on February 22, and showed up at the school on that day. She refused to leave until she was provided with a written acknowledgment that she had showed up. The school informed her that she would be fired, to which she responded that she had spoken to a lawyer and intended to assert her rights. She was fired and filed a lawsuit for retaliation under the ADA.

The Supreme Court found that Perich’s lawsuit was barred by the ministerial exception. Although lower courts had recognized this exception to federal laws prohibiting discrimination, this is the first time the Supreme Court has done so. Pursuant to this exception, grounded in the Establishment Clause and Free Exercise Clause of the First Amendment, religious bodies must be free to decide who will “preach their beliefs, teach their faith, and carry out their mission.” A discrimination lawsuit infringes that right by dictating whom the religious institution must hire or retain.

A couple of things interested me about this case. First of all, the Court refused to set clear guidelines on who qualifies as a “minister,” saying it was reluctant to adopt a “rigid formula” in its first case on the issue. The Court said that the facts in this case, including the effort required to be a called teacher, Perich’s use of the term for herself (and willingness to take advantage of the tax benefits), and her religious responsibilities, all added up to ministerial status. The concurring opinions took up this issue, with Justice Thomas proposing that courts should defer to the religious body’s good faith statement that someone is a minister. Justice Alito also wrote separately to emphasize that all religions should be entitled to this exception, not just those that have “ministers,” ordain certain members, or otherwise utilize the nomenclature and rites of the Protestant Church. This leaves a lot of leeway for future courts to decide how much analysis and probing is allowed of a religious institution’s assertion that a person qualifies as a minister under the exception.

Second, the school’s stated reason for firing Perich was that her threat to sue violated Lutheran doctrine that disputes should be resolved internally rather than through resort to the courts. But according to the facts, this threat came only after the school had told her she would be fired, so it’s hard to see how the internal dispute resolution process was still available to her. And, the Court’s unanimous opinion didn’t take up this part of the case at all. Essentially, the school is saying that this doctrinal belief essentially required it to retaliate against Perich, just as Catholic doctrine precluding ordination of women would require that Church to discriminate on the basis of sex. It’s not clear what evidence was presented to the lower courts based on the Court’s opinion, but it seems to me that religious employers relying on a defense this extreme should have to show that the belief is in fact held, and in good faith. For a court to analyze whether that belief is “valid” or correct in some ultimate sense would of course violate the First Amendment. But there should at least be some requirement that the belief is genuine and not a pretext for discrimination. A similar standard applies to employees who want a religious accommodation: Courts don’t examine the ultimate rectitude or logic of their beliefs, but do require that they be genuinely held and be religious in nature. To the extent religious organizations are claiming an exemption from laws so fundamental to our society, it seems they should be subjected to the same requirement. This wouldn’t give courts the right to say what a Church’s doctrine should be, but only what the Church’s doctrine actually is.

In the past few days, the media has been buzzing about accusations of sexual harassment made against GOP presidential contender Herman Cain when he was chief executive of the National Restaurant Association. The New York Times reported today that there were two women who accused Cain of harassment and received paid settlements; one received $35,000, one year’s salary.

The exact allegations have not been discussed — except by Cain, who has said that he told one of the accusers that she was the same height as his wife. Cain also seems to be the only one speaking on the record about settlement amounts (he stated earlier that one of the accusers received a few months’ pay; the Times got its information from “three people with direct knowledge of the payment,” but no names named as yet). He has also said that an investigation revealed that the accusations had “no basis,” and that he has never sexually harassed anyone.

Now, the lawyer for one of the women has come forward and indicated that his client would like to join the conversation — but she can’t because of a confidentiality clause in her settlement agreement. This is quite common, especially when the settlement agreement is intended to resolve known disputes (as opposed to a standard release of claims, which employees are often asked to sign as a condition of receiving severance pay, for example). Sometimes, a confidentiality agreement requires that only the amount of the settlement be kept secret; sometimes, the agreement covers much more, including the fact that it exists in the first place. An employee who breaches confidentiality might have to pay liquidated damages, return the money paid under the agreement, or agree to some other penalty.

So do Cain’s comments violate the confidentiality agreement? Full disclosure: I have no idea. But one possibility is that he isn’t a party to the agreement at all. If the agreement is between the National Restaurant Association and the accuser, Cain may not be bound by it, personally. Also, confidentiality agreements aren’t always mutual — that is, they don’t always bind the employer as well as the employee. Typically, it’s the employer who wants confidentiality, because it doesn’t want other employees (who may also have claims) to know that it’s willing to settle or for how much.

We may soon find out the details, of both the allegations and the settlement agreement terms: The accuser’s lawyer says he has asked the NRA to release his client from her confidentiality obligations.

Yesterday, the Supreme Court gave employers a huge win in the case of Wal-Mart Stores v. Dukes. The case was a class action lawsuit that alleged the giant retailer discriminated against female employees when making decisions on pay and promotions. There were three named plaintiff-employees, who sought to bring the lawsuit on behalf of more than a million female employees nationwide.

The Supreme Court wasn’t asked to rule on whether any employees had been discriminated against. Instead, the Court looked only at the class action issue: whether it was appropriate for the employees to bring these claims as a group. The Court concluded that it was not — and the ruling will likely result in fewer class actions over all kinds of issues, from civil rights cases to product liability claims.

The employees claimed that Wal-Mart engaged in a pattern and practice of discrimination against women by allowing its (mostly male) managers to exercise nearly unfettered discretion in making pay and promotion decisions, within a corporate culture that relied on gender-based stereotypes. The effect of this combination, the plaintiffs claimed, were significant disparities in pay and promotions to management between women and men. The employees presented anecdotal evidence from employees and statistical evidence of the disparities, in their effort to get a class action certified.

In a class action, a representative group brings a lawsuit on behalf of everyone who’s in the same position. The class action framework is intended to promote efficiency and fairness by allowing everyone’s claims to be decided at the same time, according to the same standards, rather than through a number of separate lawsuits that could result in contradictory outcomes. But to bring a class action, the plaintiffs have to meet certain requirements, intended to make sure that it’s fair both to other class members — whose rights will be determined by the lawsuit, even if they don’t participate — and to the defendant, who will have to defend against time-consuming and costly large-scale allegations.

The Supreme Court decided that the case couldn’t proceed as a class action because the plaintiffs hadn’t met one of these threshold requirements: that there be at least one common issue of law or fact among the class members (“commonality”). Because the women worked at stores across the 50 states, reporting to different managers, and bringing their own skills, performance history, and other attributes into play, the Court found that they didn’t have commonality. The Court was especially dismissive of the plaintiffs’ claim that allowing managers to make subjective, discretionary decisions could provide the necessary common ground for the class action.

Four Justices dissented from this part of the ruling. Justice Ginsburg, writing for the minority, identified the key common question for the class as “whether Wal-Mart’s discretionary pay and promotion policies are discriminatory.” In addition to reviewing the plaintiffs’ statistical and anecdotal evidence, she pointed to other facets of Wal-Mart’s nationwide practice, such as requiring that all employees promoted to management be willing to relocate and allowing managers to set pay within a two dollar range, which left room for the operation of gender bias.

The majority’s opinion in the Wal-Mart case is likely to have a significant impact on future class actions because it sets a stricter standard for getting these cases off the ground. As Justice Ginsburg points out, the commonality standard had previously been interpreted more leniently. The key question wasn’t whether there were dissimilarities among the class members, but whether there was at least one crucial similarity, a question that could be answered for the entire group. We’ll have to see what the ultimate effect of this case will be, as lower federal courts apply it going forward. For now, though, advocates for business groups and employees alike agree that it will limit the number and size of class actions in the future.