Tag Archives: Title VII

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.

 

Employers Win Retaliation Case in Supreme Court

supctThere were plenty of blockbuster decisions issued in the final week of the Supreme Court term that ended in June: Cases on affirmative action, voting rights, and of course same-sex marriage garnered most of the attention. But the Court also issued a couple of major employment decisions, which will have a significant effect on cases headed to trial.

In the first case, Vance v. Ball University, the Court limited the definition of “supervisor” in harassment cases to include only those who are authorized to take tangible employment actions (such as firing, demotion, promotion, or job reassignment) against employees. This case  immediately changed the burdens of proof in harassment cases going to trial across the nation, making it more difficult for employees to hold their employers liable for hostile environment harassment. (You can find out why in my post about the decision, Big Win for Employers in Supreme Court Harassment Case.)

In the second case, University of Texas Southwestern Medical Center v. Nassar, the Court ruled that employees who claim that they were retaliated against for complaining about discrimination have a higher burden of proof than employees who only raise discrimination claims. Although the current Supreme Court is generally considered very favorable to business interests, this pro-business decision is something of a surprise. Employees haven’t had much luck in other types of cases, but they had an unbroken win streak in retaliation cases, until a few weeks ago. (Don’t believe me? See Another Supreme Court Win for Employees in Retaliation Case, Oral Complaints Trigger Retaliation Protection, and Supreme Court Issues Another Retaliation Decision, for starters.)

In the Nassar case, the Court had to decide who has to prove what in a “mixed motive” retaliation case. A little background: To win a Title VII discrimination case, an employee has to prove that the employer took action (typically, firing the employee) because of the employee’s race, religion, or other protected characteristic. In 1989, the Court had to decide how to handle cases in which the employer had discriminatory intent, but also had other, nondiscriminatory reasons for its decision. The Court came up with this rule for these mixed motive cases: If the employee can show that his or her protected characteristic was a motivating factor in the decision, the employer could escape liability if it could prove that it would have taken the same action absent any discriminatory motive.

Congress tweaked the mixed motive rule in the Civil Rights Act of 1991, in favor of employees. Congress reasoned that discrimination is always wrong, and should subject the employer to penalties even if the employer had other reasons for its actions. On the other hand, if the employer really would have taken the same action for legitimate reasons, the employee can’t prove any out-of-pocket losses. For example, if an employee claims that he was fired because of his race, but the employer says “we would have fired him on the same day because of his billing errors,” the employee can’t show that his lost wages were caused by discrimination. So, Congress refined the rule to hold that an employee who proves that discrimination was a motivating factor can be awarded attorney fees, costs, and declaratory relief (a finding by the court that the employer discriminated). However, if the employer can prove that it would have taken the same action for legitimate reasons, the court will not order money damages or reinstatement.

The Nassar case turned on a retaliation claim. Nassar, a doctor who worked at the hospital and was on the faculty at the University, claimed that a supervisor (Dr. Levine) harassed him based on his national origin and religion. Nassar complained to his immediate supervisor (Dr. Fitz) about the harassment, and also tried to arrange to leave the faculty while still working at the hospital (an arrangement not usually allowed). After the hospital indicated that it would hire him, Nassar quit his teaching position and wrote a letter to Fitz, stating that he had resigned because of the harassment. Fitz was angry about Nassar’s allegations, stating that he had “publicly humiliated” Levine, who should be “publicly exonerated.” He contacted the hospital and asked them to retract their job offer; he pointed out that the rules required all physicians at the hospital to also be faculty members. The hospital obliged, which led to Nassar’s retaliation claim and a very clear mixed motives case. The facts demonstrate both that Fitz had a retaliatory motive and that the same action would have been taken anyway, for other reasons. So, the Court of Appeals applied the mixed motive framework explained above.

The Supreme Court said that was incorrect. The Court decided that Congress’s mixed motive framework applies only to claims of discrimination, not claims of retaliation. In a retaliation case, the employee always has the burden of proof, and must show that the employer took action “because of” a retaliatory motive. If the employer would have taken the same action for other reasons, the employee loses.

Why did the employee winning streak end in retaliation cases? The majority decision states that it’s simply a matter of reading the statute. Congress laid out the mixed motive framework only for discrimination cases, not retaliation cases. As the dissent points out, however, the Court has recently allowed retaliation claims under statutes that don’t mention retaliation at all. And, because vindicating the right to work free of discrimination necessarily requires that employees not be penalized for coming forward with these claims, it’s odd to adopt different standards for these two allegations that are so closely linked. Perhaps the real reason is revealed when the majority opinion points out the huge rise in retaliation charges in recent years: Allowing employees to proceed under the easier burden of proof for mixed motive cases would “contribute to the filing of frivolous claims, which would siphon resources from efforts by employer, administrative agencies, and courts to combat workplace harassment.”

 

 

 

EEOC: Sex Discrimination Includes Gender Identity and Transgender Status

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.