Category Archives: Discrimination and Harassment

Where Do Employers Get Sued the Most?

USAccording to a very interesting article in the Insurance Journal, employers are most likely to be sued by current or former employees in California, Illinois, Alabama, Mississippi, and the District of Columbia. I’m sure no one is surprised by that first entry on the list: Our great Golden State is famous for its employee-protective laws. The District of Columbia and Illinois both offer plenty of workplace protections as well. In fact, Illinois might be more progressive than California on this score. For example, it recently became the first state (I believe) to prohibit job discrimination against the homeless, by making it illegal for employers to make job decisions based on the fact that an employee does not have a permanent address or uses the address of a shelter or social service provider as a mailing address.

The article features quotes from some lawyers, who pointed to two reasons states made the list: state laws that are very protective of employees (and apply to smaller employers) and state laws that don’t cap damages available to employees (as federal discrimination laws do, for example). All well and good, and quite explanatory of California, Illinois, and DC. But what about Alabama and Mississippi? These states don’t have their own comprehensive discrimination laws (which leaves aggrieved employees to sue under federal law, under which those limits on damages apply). In case you were thinking employers there are facing big wage and hour class action cases, they might be. But only if employees are suing under the federal Fair Labor Standards Act, because Alabama and Mississippi also don’t have their own minimum wage or overtime laws. Or their own laws requiring meal and rest breaks. Or state laws requiring family and medical leave.

Of course, employees could be suing under federal laws governing these topics. But that’s true in all 50 states. The article doesn’t explain — and I have no easy answer for — why employees sue more often in Alabama and Mississippi. But if you’re wondering what grounds you might have for a lawsuit in your state, I’ve got an assist for you: Check out our 50-state (plus DC) set of articles over on www.wrongfulterminationlaws.com on state wrongful termination laws.

EEOC Issues Q&A on Religious Accommodation

The Equal Employment Opportunity Commission (EEOC) recently issued the latest in its question-and-answer series, Religious Garb and Grooming Requirements in the Workplace: Rights and Responsibilities. I am a big fan of the EEOC’s Q&As on various discrimination topics, particularly the detailed examples it uses to explain what the law requires and how employees and employers can work together to come up with sensible solutions. That said, although this recent installment is similarly helpful and informative, it doesn’t break new policy ground.

As the EEOC and courts have long held, employers may be required to accommodate an employee’s religious clothing, jewelry, decorative items, and grooming requirements. The EEOC’s Q&A gives examples and details about how this requirement works, with particular focus on head coverings (such as yarmulkes, turbans, and hijab), long hair, and beards. A few things the agency emphasized:

  • Whether the underlying belief requiring accommodation is “religious” and “sincerely held” will very rarely be in question. As the EEOC points out, its definition of “religious” is so broad as to rule out most employer challenges. And, beliefs may be sincerely held even if they change over time or deviate from the tenets of the religion the employee claims to practice.
  • Customer preference and related justifications — such as the company’s “image” or “brand” — just do not cut it as employer defenses. There are a number of examples in the Q&A making this point in various ways. Customers don’t like turbans? Image requires employees to be clean-shaven? Brand requires employees to wear the latest fashions, without head scarves? These are all non-starters as defenses to a failure to accommodate claim.
  • Like accommodations for disabilities, religious accommodations must be considered on a case-by-case basis. Even if there is a legitimate safety justification for a particular requirement, the employer should look at whether the employer’s concerns can be met for that employee in other ways. The EEOC gives an example of a security guard who wears a head scarf. Even if the employer’s policy prohibits any clothing that covers the face or head, the employer might have to allow an exception if it can meet its security needs in other ways for this employee (by, for example, requiring the employee to temporarily remove the covering for identification purposes).

President Pledges Help to Long-Term Unemployed

unemployedPresident Obama’s State of the Union message last week got lots of attention, mostly because of his pledge to work around Congress if necessary to achieve his policy goals. Among the President’s aims is to reduce unemployment and boost employee earning power. To that end, he announced in his speech that he would require federal contractors to pay their employees a minimum wage of $10.10 an hour. That figure didn’t come out of thin air: It’s the same minimum wage Democrats in the Senate are seeking for all employees.

A couple of days ago, the President announced another initiative in his “Year of Action.” He will require the federal government to take steps to avoid discriminating against the long-term unemployed in hiring. The White House had already released a “Best Practices” guide for companies seeking to avoid this type of discrimination; according to the White House’s press release, more than 300 companies have signed on. Now, by the President’s Executive Order, federal agencies will also have to comply with these practices, which include screening job ads for language that discourages the unemployed, reviewing interviewing and hiring practices to make sure current employment isn’t weighted unfairly, and casting a wide net in recruitment and hiring efforts. The President also announced a new grant program for partnerships between employers and nonprofit groups that seek to prepare the long-term unemployed to return to the workforce and help them find jobs.

A few states prohibit discrimination against the unemployed. Once New Jersey, Oregon, and the District of Columbia passed these laws, it started to look like momentum was building in the states. However, subsequent efforts have stalled out or — in California — faced a veto. (Find current state law information at the Discrimination Against the Unemployed page at the website of the National Conference of State Legislators.)

Currently, federal law doesn’t prohibit this type of discrimination by private employers, but the Equal Employment Opportunity Commission held hearings a couple of years ago on the topic. Might the President’s move rekindle some interest?

 

Smells Like a Lawsuit

Sexual harassment, like so many other experiences, is in the eye of the beholder. What feels like offensive misconduct to one person might seem like harmless workplace antics to another. That’s why the law imposes both an objective and a subjective standard in harassment cases. Courts and juries must look both at whether the behavior was objectively hostile, offensive, or abusive, and at whether the victim actually perceived it that way. And, when applying the objective test, it isn’t enough to ask whether we, as judges or members of a jury, would find the conduct offensive. We must ask whether a reasonable person in the victim’s situation would feel harassed. Because sexual harassment is still overwhelmingly an offense men perpetrate against women, this standard is in most cases referred to as the “reasonable woman” standard.

A recent case from Texas makes clear how important this distinction can be. A federal appeals court reinstated a lawsuit that had been thrown out, finding that the female plaintiff deserved a trial on her allegations of sexual harassment and retaliation. At the most general level, she claimed that she was fired after four days on the job as a leasing manager in an apartment complex, after she complained that two coworkers sniffed her. The district (trial) court found that she hadn’t shown that this was objectively offensive, in part because neither coworker had physically touched her.

What do you think so far? If you’re thinking the trial court might have been right, consider these additional facts: She worked in a small office. The two men would come in, sometimes together, crowd and hover over her as she sat at her desk, and sniff her in a sexually suggestive manner. They did it 12 times over the course of a few days. They also sniffed her as she left the bathroom. One of the men sat across from her and stared at her for several minutes, wearing shorts and visibly aroused. When she complained in a staff meeting, one of the men claimed to have a medical condition and the other said he “needed to get a release.” When she complained to a manager, she was told, “you know how men are like when they get out of prison”; one of the men had a prison record. Then she was fired.

Does this sound more menacing now? To me, this case illustrates how important it is to apply the objective standard in a manner that captures the entirety of the victim’s experience. “Two coworkers sniffed me” sounds like the beginning of a comedy routine. But when you widen the frame to include the physical surroundings, sexual comments, air of menace, and complete lack of concern for her complaints, it looks a lot more like harassment.

It’s Evaluation Season! Don’t Forget the Maternity Projection Chart

storkManagers, do you enjoy giving employee evaluations? Many managers  don’t: They find it difficult to give constructive criticism, fit employee accomplishments and areas for improvements into their company’s evaluation form, or make time to sort back through their documentation for the year, complete the form, and meet with employees about it. But imagine how you would feel if the company’s evaluation form also included questions about the employee’s “maternity plans.” And then you had to use that information to help generate a “maternity projection chart,” purporting to calculate the likelihood that a particular female employee would have a child soon based on her age, marital status, and maternal status.

According to a complaint filed in a federal district court in New York, that’s what happened at the Institute for Integrative Nutrition. (Hat tip to the Employment Law Daily; they have also posted a copy of the court’s decision in favor of the employees.) The employees alleged not only that the chart was created, and that it included information only on female employees, but also that the employer used it in making employment decisions.

This is one of the stranger allegations in the case, but by no means the only allegations the employees made about discrimination, retaliation, and violation of FMLA rights at the Institute. Each of the named plaintiffs (they are bringing a class action) had quite a tale to tell, including comments by the company’s owner that “women’s priorities shift when they become mothers,” that one expecting employee should speak to her partner about whether it was “worth it,” because he “had never met a new mom that didn’t underestimate the sleep, time, exhaustion from a new baby,” and that he wouldn’t consider another woman for a promotion because she was “getting married, and her head was in another place.” Once they revealed their pregnancies or went out on leave, the women claimed that they faced different treatment, demotion, and ultimately discharge.

No judge or jury has determined whether these allegations are correct, because the case came up on a motion to dismiss. In other words, the employer was arguing that some of the employees’ claims were so weak that it should not even have to respond to them, right out of the gates. In fairness, the court tossed one allegation by one employee. (Her retaliation claim was thrown out because she didn’t allege that she had complained of discrimination before being mistreated.)  Otherwise, though, the employees won. Based on the allegations, it’s no surprise. What surprised me is that the employer found it worth arguing about, given the strength of the allegations.

 

Senate May Finally Pass ENDA

prideflagToday, the Senate is expected to take up the Employment Nondiscrimination Act, known informally as ENDA. This bill would outlaw workplace discrimination on the basis of sexual orientation and gender identity, by adding those protected traits to Title VII.

Wikipedia tells us that the first Congressional effort to prohibit job discrimination against gay men and lesbians happened in 1974; In many Congressional sessions since, some version of ENDA has been introduced and gone nowhere. The House of Representatives managed to pass a version of the law in 2007, but the cost of passage was high for some: The version that finally passed had no protections based on gender identity. And no version of ENDA has ever passed the Senate.

This week, vote counters believe that will all change. According to New York Times reporting on the Senate vote, all 55 democratic senators are expected to vote for the bill, four more Republicans are on board, and only one more vote is required to invoke cloture (end the debate) and hold an up-or-down vote. When you consider that one of the official undecideds is Rob Portman, who announced his support for gay marriage because his son is gay, chances for passage look pretty good. (And in the nontraditional marriage department, Cindy McCain apparently sent her husband, Senator John McCain, a postcard urging him to vote for the bill; this prompted a strained formal response from the Senator’s office that he “enjoys and appreciates having discussions on the important issues of the day with all the members of his family.”)

What will happen in the House is anybody’s guess. But there are signs of trouble for opponents of the bill, who are having to reach deep into their bag of tricks to articulate reasons to oppose the law. Members of Congress told the Times that they are having to respond to arguments that the law would unfairly force Christian bookstores to hire drag performers and require schools to allow male teachers to wear dresses in the classroom. (A brief aside: What kid would not love this?) When the counterarguments reach this level, you know momentum in favor of the bill has reached critical mass.

 

How Must an Employee Request a Religious Accommodation?

goatsTitle VII gives employees the right to reasonable workplace accommodations to allow them to practice their religious beliefs. Unless accommodating an employee’s religion would pose an undue hardship, an employer must allow an employee to attend religious rites or ceremonies, honor a Sabbath, wear religious garb, or otherwise follow the tenets of his or her faith. This might require changes to work schedules, uniform rules, or procedures for requesting for time off, but Congress has determined that religious practice is sufficiently important to impose these minor burdens on employers. (For more information — and answers to commonly asked questions — about religious discrimination and accommodation, check out our Religious Discrimination page.)

So far, so good. But an employer can grant an accommodation only if it knows about the employee’s need for one. That’s why the burden of requesting an accommodation in the first place — and providing enough information so the employer knows the request is religious in nature — falls on the employee. As is true of most employment laws that require employee notice, no “magic words” are required. An employee need not say explicitly, “I am requesting a religious accommodation pursuant to Title VII.” On the other hand, the employee has to provide enough information to let the employer know that (1) the employee needs an exception or change to the usual rules, and (2) that need arises from a religious belief.

An interesting case from the federal Court of Appeals for the Seventh Circuit shows how tricky this can get when the employee’s religious beliefs are not mainstream or known to the employer. An employee, Sikuru Adeyeye, asked for five weeks of unpaid leave to attend his father’s funeral ceremony in Nigeria. His employer, Heartland Sweeteners, said no. Adeyeye then asked for three weeks of unpaid leave along with a week of vacation he had already earned. He left to attend the funeral, and was fired upon his return for violating the company’s attendance policy.

Adeyeye sued, claiming that the company failed to grant him a religious accommodation. The company argued that it didn’t know his request for time off had a religious basis. The Appeals Court found in Adeyeye’s favor on the notice issue, finding that the language he used in his written requests for time off was enough to clue the company in. Here’s what the first note said:

I hereby request for five weeks leave in order to attend funeral ceremony of my father. This is very important for me to be there in order to participate in the funeral rite according to our custom and tradition. The ceremony usually cover from three to four weeks and is two weeks after the burial, there is certain rite[s] that all of the children must participate. And after the third week, my mother will not come out until after one month when I have to be there to encourage her, and I have to [k]ill five goats, then she can now come out. This is done compulsory for the children so that the death will not come or take away any of the children’s life. I will appreciate if this request is approved.

Adeyeye said his request was based on “custom and tradition,” not religion. Weighing heavily on the other side of the balance: ritual slaughter of goats! The Court found that the goats, possibility of spiritual death if the ritual was not followed, and mention of rites and ceremonies was sufficient to put the company on notice.

Hat tip: Triggering the Duty of Religious Accommodation, over on Workplace Prof blog, which compares this case to yet another controversy over Abercrombie & Fitch’s “Look Policy,” this time involving an applicant who was denied a job after she showed up for an interview wearing a headscarf.

 

California Law Affirms that Sexual Harassment Doesn’t Have to Be Sexy

In August, California amended its sexual harassment laws to add this sentence to the state’s Fair Employment and Housing Act:

“Sexually harassing conduct need not be motivated by sexual desire.”

The legislature was responding to a decision by a California appeals court in a same-sex harassment case. The plaintiff employee in that case, Patrick Kelley, alleged that his male supervisor called him a bitch and a punk, made crude comments about having sex with him, and laughed when another employee did the same. This behavior followed Kelley to other worksites after he asked to be transferred, as the story spread among his coworkers. The Court tossed Kelley’s claim because he couldn’t prove that his supervisor acted out of genuine sexual desire or interest. In other words, the case turned on whether Kelley’s supervisor actually, in his heart, wanted to have sex with Kelley (in ways he graphically described), or just said so in front of others in order to demean him.

If all sexual harassment cases turned on the question of sexual interest, you can imagine the problems of proof. How do you show that a harasser “really” felt desire toward his victim? Would the harasser’s sexual orientation be an issue in the case? Setting that aside, sexual interest shouldn’t matter. It’s just as illegal for a supervisor to make demeaning, sexist comments as to make unwanted sexual propositions (whether or not the harasser “genuinely” wanted to follow through on them). The reason why sexual harassment is illegal is that it limits job opportunities. When all is said and done, sexual harassment is about power, not desire.

In the context of opposite-sex harassment, there are certainly some ugly cases involving sexual come-ons, groping, and even assault. But some of the ugliest situations arise when women enter traditionally male fields. In these cases, there are no expressions of “desire” or “sexual interest.” Instead, women are threatened (with rape, assault, and more), endangered, and frightened. Their tools and vehicles are sabotaged; they are called horrible names; they are stranded without support. Although some courts had trouble seeing the harassment when it was so decidedly unsexy, most have now come around.

At least in opposite-sex cases. That the California case issued its decision in a same-sex case isn’t surprising. Courts have not known what to do with homophobic behavior on male-dominated worksites. Is it okay if none of the employees are actually gay? Or if the supervisor threatens to have sex with all the guys, not just those who are ridiculed in gendered ways? If there are no women present, is this behavior really “sex-based”? But the answer seems pretty simple. In this case, Kelley’s work environment was poisoned by a supervisor’s crude sexual comments and behavior. Those comments were sex-based, in that they were about Kelley’s masculinity and sexual orientation. The case shouldn’t have turned on whether the supervisor was sincere when he said he want to have sex with him.

Religious Discrimination and Accommodation

cadleLast week, the Equal Employment Opportunity Commission (EEOC) announced that it had filed a lawsuit against United Cellular, Inc., of Alabama. The lawsuit claims that United Cellular discriminated against Charles Embry, a Seventh-Day Adventist, by scheduling him to work on his Sabbath day and then firing him when he didn’t show up for work. During his initial job interview, Embry told United Cellular that his religious beliefs prohibited him from working from sundown on Friday through sundown on Saturday.

Religion is unique among the characteristics protected by Title VII, in that it is not only a trait but also a system of beliefs that may require believers to engage in certain practices at work. Employers are required to provide reasonable accommodations to allow employees to practice their faiths, unless doing so would create an undue hardship. Common accommodations include schedule changes, exceptions to grooming or dress codes, and breaks or time off for prayer and religious observances.

Religious discrimination can be a tricky issue for employers, who are required both to disregard religion as a trait in making employment decisions and to take religion into account as a practice in providing accommodations. Especially difficult is figuring out whether and how to accommodate an employee whose religion requires public profession of faith or proselytizing, especially if other employees or customers would prefer not to be the audience.

Recognizing this, the EEOC in 2008 issued policy guidance and a question and answer series on “how to balance the needs of individuals in a diverse religious climate.” Apparently, however some questions remain: The number of charges filed with the EEOC alleging religious discrimination has more than doubled in the past 15 years, while total charges filed have increased by only 25% in the same timeframe.

In response to frequent questions and search interest in this topic, we’ve put together a Religious Discrimination page, with basic information and answers to common questions about discrimination and workplace accommodations.

 

Big Win for Employers in Supreme Court Harassment Case

supctDo you have more than one supervisor? If so, you’re not alone. Plenty of people work for companies in which the power to hire, fire, promote, and discipline employees is vested in only a few employees, but many more employees are authorized to direct the work of others and actually keep the trains running on time. Well, the Supreme Court has news for the many lower-level employees who schedule, oversee, train, and direct the work of other employees: You’re not supervisors under Title VII.

In a racial harassment case (Vance v. Ball State University), the Supreme Court decided that employees count as supervisors under Title VII only if they are authorized to take tangible employment actions against an employee. A tangible employment action is a significant change in employment status, such as hiring, firing, promotion, or reassignment to a job with substantially different duties. In making this decision, the Court rejected the Equal Employment Opportunity Commission’s interpretation that employees who don’t have this authority might also be supervisors if they have the authority to direct an employee’s daily work activities.

The distinction between supervisors and regular employees is hugely important in determining an employer’s liability for harassment. An employee who is harassed by a coworker can hold the employer legally liable for the harassment only if the employer was negligent. This means that the employee has to show that the employer knew, or should have known, about the harassment and failed to take appropriate corrective action.

An employee who is harassed by a supervisor has an easier burden. If the supervisor’s harassment results in a tangible employment action (as defined above), the employer is strictly liable, period. If the supervisor’s harassment doesn’t result in a tangible employment action, the employer is liable unless it can prove that (1) it exercised reasonable care to prevent and promptly correct harassment (by, for example, training employees, adopting a policy prohibiting harassment, creating an appropriate complaint procedure, and investigating harassment complaints quickly and fairly), and (2) the employee unreasonably failed to take advantage of opportunities the employer offered to prevent or correct harassment (for example, by failing to make a complaint).

The distinction between supervisor harassment and coworker harassment takes into account the power an employer gives its supervisors. The employer’s decision to delegate authority to the supervisor is what makes this type of harassment possible, so it’s only fair to hold the company responsible for the actions of those who have this responsibility.

The practical effect of the Court’s decision is that fewer employees will qualify as supervisors and, therefore, that more victims of harassment will have to meet the more difficult negligence standard to win their cases. In other words, this case is a clear win for employers, who will have an easier time avoiding liability for harassment.

Interestingly, it’s much easier for an employee to qualify as a supervisor when that result benefits employers. For example, an employee is an exempt “executive” employee under the Fair Labor Standards Act – and, therefore, not entitled to earn overtime – if the employee directs the work of at least two other employees (among other things). The employee need not have the authority to hire and fire, as long as the employee’s suggestions or recommendations about personnel decisions like these are given “particular weight.” Similarly, under the National Labor Relations Act, an employee is a supervisor if he or she has the authority to perform one of 12 responsibilities, including assigning work and responsibly directing employees. If you’re a supervisor under the NLRA, you are not protected by the law and may not join a union.