Our April 5, 2017 post highlighted a decision of the Seventh Circuit Court of Appeals finding that Title VII protections against discrimination on the basis of gender extend to sexual orientation. That court referenced US Supreme Court decisions such as the 2015 same sex marriage case, Obergefell v. Hodges, in concluding that “[t]he logic of the Supreme Court’s decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, persuade us that the time has come to overrule our previous cases that have endeavored to find and observe that line.”
Late yesterday, the Seventh Circuit became the first federal appeals court to hold that Title VII’s prohibition on discrimination on the basis of a person’s sex also extends to sexual orientation.
The plaintiff, who is a lesbian, was a part-time adjunct professor at a community college in South Bend, Indiana. She repeatedly and unsuccessfully applied for full-time teaching positions at the college, and ultimately, her part-time teaching contract was not renewed. She believed that the college was discriminating against her because of her sexual orientation, and she filed a claim with the EEOC, and later in federal court. The college moved to dismiss the lawsuit, arguing that she had failed to state a claim on which relief could be granted, relying on a string of cases from the Seventh Circuit and elsewhere holding that sexual orientation is not protected under Title VII. The district court agreed and dismissed the case. A three-judge panel of the Seventh Circuit upheld the dismissal. On further appeal, the full Seventh Circuit took “a fresh look” at its position on the issue, and ultimately decided to overrule its prior precedent. Continue Reading Seventh Circuit Holds that Sexual Orientation is Protected by Title VII
Earlier this month, the Supreme Court announced that it had decided not to hear the case of Gavin Grimm – the transgender student who sued his school district seeking access to the restroom and locker room facilities that correspond to his gender identity. The Court’s change in course followed the Trump Administration’s rescission of an Obama-era Department of Education policy on the issue of bathroom access. Although Grimm’s suit involves public school students, private employers have been keeping a close eye on the case for any implications it may have on the rights of transgender employees in the workplace. The answer to that question will have to wait. Continue Reading The Problem with Pronouns
One of the most problematic areas for employers is the balancing act which occurs between managing employee productivity and attendance while taking care not to tread on entitlement to Family and Medical Leave (“FMLA”) and Americans with Disabilities Act (“ADA”) protections. Intermittent and unforeseeable absences are at the top of the list of challenges, and one particularly challenging issue is migraine headaches.
Individuals who suffer from migraines know they are usually 1) unpredictable and 2) debilitating. They often result in employees calling in at the last minute, leaving work midday or being out for days at a time without notice. Continue Reading Are Employee Absences Giving You A Headache?
As we reported in an earlier blog post, employers have been keeping an eye on the ongoing political fights over the rights of transgender persons to use restrooms that correspond to their gender identities.
Yesterday, the Department of Justice (DOJ) and the Department of Education (DOE) issued a joint “Dear Colleague Letter” withdrawing two statements of policy and guidance issued by the Obama Administration relating to transgender students’ access to restroom and locker room facilities. The prior guidance documents took the position that prohibitions on discrimination “on the basis of sex” under federal law governing education (Title IX), also apply to gender identity, and require schools receiving federal funds to allow transgender students to use the facilities that correspond to their gender identities. The new letter from the Trump Administration states that the prior guidance did not contain extensive legal analysis, and did not undergo a formal public comment and review process. The new letter from the DOJ and the DOE also notes that states and local school districts play a primary role in establishing educational policy. Continue Reading The Latest Battle in the “Bathroom Wars”
On February 3, 2017, the U.S. Equal Employment Opportunity Commission (“EEOC”) announced that it would extend the notice and comment period for its proposed enforcement guidelines on unlawful harassment under EEOC-enforced employment discrimination laws. The extension, which provides an additional forty (40) days for public input, gives in-house counsel and human resources professionals a good opportunity to review and familiarize themselves with the standards by which the EEOC is likely to evaluate harassment-based discrimination claims.
The EEOC’s proposed guidance (“Guidance”), released on January 10, 2017, follows up on the agency’s June 2016 Report of the Co-Chairs of the EEOC’s Select Task Force on the Study of Harassment in the Workplace (“June 2016 Report”). The June 2016 Report found that discriminatory harassment remains a pervasive problem in the American workforce, amounting to almost a third of all discrimination charges the EEOC received in FY 2015.
The Guidance outlines the agency’s position, with accompanying caselaw, on the following topics related to discriminatory harassment:
- Covered bases for discrimination. The Guidance identifies certain bases for harassment that, in the EEOC’s view, may amount to unlawful race, national origin, religious, sex, age, disability, or genetic information. Examples include black hairstyles (race discrimination), sexual orientation and/or gender identity (sex discrimination), and foreign accent or cultural diet (national origin discrimination).
- Establishing Causation. The Guidance sets forth several examples of harassment the EEOC considers to be sufficiently “connected” to a protected classification, such as: derogatory or hostile comments regarding a protected classification, whether or not the comments are directed against a specific employee; ostensibly neutral conduct that is related to an overall pattern of class-based harassment; harassment that begins or escalates shortly after learning of the complainant’s protected status; and higher productivity standards for women as compared to similarly situated male employees.
- “Severe” or “pervasive” harassment. In explaining when conduct is sufficiently severe and/or pervasive to amount to unlawful harassment, the Guidance identifies certain actions that could create a hostile work environment even if they occur only once: sexual assault, sexual touching of an intimate body part, physical violence or threats, use of symbols of violence or hatred, use of the “n-word” by a supervisor, use of animal imagery, and threats to deny job benefits for rejecting sexual advances.
- Subjectively and objectively hostile work environment. In its Guidance, the EEOC agrees that a harassment plaintiff must establish that s/he actually and reasonably perceived the conduct to be severe or pervasive. The EEOC disagrees, however, with the various U.S. Circuit Courts of Appeals that have required plaintiffs to separately establish that the harassing conduct was “unwelcome.” The Guidance also notes that the EEOC does not consider “prevailing workplace culture”—i.e., a longstanding workplace habit of engaging in relatively crude, coarse, or vulgar conduct—to excuse conduct that would otherwise amount to unlawful harassment.
- Relatedness of the harassing conduct to the work environment. The Guidance discusses when the EEOC will find conduct that occurs outside an employee’s regular place of work, or in a non-work-related context, as contributing to a hostile work environment for which the employer may be held responsible. Among other examples, the Guidance states the EEOC might consider conduct on a private social media platform as contributing to a hostile work environment if coworkers discussed the conduct in the workplace—even if the social media postings occurred during non-working time.
- Supervisor/coworker liability. The Guidance reiterates the four standards of harassment liability based on the relationship of the harasser to the employer:
- The employer’s proxy or alter ego (strict liability);
- The employer’s supervisor who engages in a “tangible” employment action against the victim (vicarious liability);
- The employer’s supervisor who engages in harassment but does not engage in a “tangible” employment action against the victim (vicarious liability, subject to the affirmative defense that the employer exercised reasonable care to prevent and correct harassment and the employee failed to take advantage of any preventive or corrective opportunities);
- Non-supervisors (liability if the employer negligently failed to prevent or correct the harassment).
- Systemic harassment and pattern-or-practice claims. The Guidance explains the theories of systematic or widespread discrimination, in which the employer subjects all employees of a protected group to the same discriminatory circumstances in the workplace as a whole.
- Best practices to prevent harassment. The Guidance reiterates the holdings from the EEOC’s July 2016 Report, including five principles for preventing and addressing harassment: committed and engaged leadership; consistent and demonstrated accountability; strong and comprehensive harassment policies; trusted and accessible complaint procedures; and regular, interactive training tailored to the audience and the organization.
Public comments originally were due by February 9, 2017, but the EEOC has now extended the deadline until March 21, 2017. The agency already has received approximately 70 comments from individuals and organizations. Comments are publicly posted, and may be submitted and viewed here.
Typically with an incoming administration there is a waiting period of sorts before changes in pending and certainly existing regulations kick in. The current administration, however, appears to be working at an accelerated pace toward upending the status quo. So, it appears time for a quick check-in on where we are and what to expect.
On Inauguration day, White House Chief of Staff Reince Priebus Jan. 20 instructed federal agencies to freeze all pending regulations, a move that seems to include a number of labor and employment initiatives that were in the works under the Obama administration.
This type of freeze is not unusual when a new president takes office. An action of this nature does not necessarily mean that significant changes are coming, but given candidate Trump’s campaign promise to roll back regulation on business, we can at least predict that the administration will be in no rush to move on the pending matters. Continue Reading Two Weeks Into the Trump Administration: Where are we with Labor and Employment Regulations?
Words spoken yesterday morning by Fox News personality Megyn Kelly during an interview by George Stephanopoulos on Good Morning America. Kelly was asked about the lawsuit filed by her former Fox News colleague Gretchen Carlson against former CEO Roger Ailes and Kelly’s own experiences with Ailes a decade ago. According to Kelly, and as described in her new book, Ailes sexually harassed her and tried to entice her to engage in a sexual relationship. She rebuffed his advances, called a lawyer and notified her immediate supervisor. The supervisor vouched for Ailes and told Kelly the behavior was out of character and also advised Kelly to “ignore him.” Kelly did just that, something relatively easy for her to do since she was assigned to the network’s Washington office and Ailes was in New York. After about six months of being ignored, Ailes moved on, and he and Kelly had a cordial and mutually beneficial professional relationship until he left the network.
When pressed as to whether she regretted not having come out publicly about his advances ten years ago, Kelly told a story remarkably similar to that which women in workplaces tell every day. First, she wasn’t sure that this wasn’t an isolated incident, especially given her supervisor’s statements and advice, which seemed to work. Second, in her eyes, she had no one to go to. She had barely a year’s tenure at the station, and Ailes, the CEO, was one of the world’s most powerful men. She had done more than many women in her place might have done, but going above Ailes’ head to the owners or going to the general counsel would have been “a suicide mission” for her career. She told Stephanopoulos the obvious, “I wasn’t the same Megyn Kelly then as I am now.”
Kelly’s responses are consistent with what many women who are victims of harassment say. Why didn’t she speak out sooner? Why didn’t President-Elect Trump’s accusers come forward years ago? They didn’t know there were others; they didn’t have anyone they could safely tell; they didn’t think they would be believed.
The stories of Carlson, Kelly and countless other female employees at Fox put an exclamation point on the findings of an EEOC task force which spent a year studying the issue of workplace harassment. They issued a report in June 2016, entitled “Report of the Co-Chairs of the EEOC Select Task Force on the Study of Harassment in the Workplace” which concluded that sexual harassment remains a significant workplace issue. Among a great deal of information, the Report provides practical resources, including checklists and a “risk factor” analysis, to help employers assess their organization and respond appropriately to troubling behavior.
Reviewing the risk factor analysis is a necessary first step for employers looking to address this important workplace issue. The task force focused on what they viewed to be environmental factors, organizational factors or conditions that might increase the likelihood of harassment rather than on the qualities that might lead one to be a likely victim or a likely harasser. The Report says:
Most if not every workplace will contain at least some of the risk factors we describe below. In that light, to be clear, we note that the existence of risk factors in a workplace does not mean that harassment is occurring in that workplace. Rather, the presence of one or more risk factors suggests that there may be fertile ground for harassment to occur, and that an employer may wish to pay extra attention in these situations, or at the very least be cognizant that certain risk factors may exist. Finally, we stress that the list below is neither exclusive nor exhaustive, but rather a number of factors we felt were readily identifiable.
What follows is a list of some of the risk factors identified.
- Homogenous Workforces: Sexual harassment of women is most likely to occur in workplaces with primarily male employees; racial or ethnic harassment is more likely to occur where one race or ethnicity is predominant.
- Workplaces Where Some Workers Do Not Conform to Workplace Norms: A feminine man in a predominantly male environment where crude language is common; a woman who challenges stereotypes by being “tough.”
- Cultural and Language Differences: Diverse workplaces where “blocs” of workers from different cultures congregate; workers may not know the cultural norms of the workplace or their rights and be subject to exploitation.
- Coarsened Social Discourse Outside the Workplace: Events outside the workplace like terrorist attacks and controversial elections may lead to discussions previously deemed unacceptable at work.
- Workforces with Many Young Workers: Young workers who lack the maturity to understand the consequences of their behavior; unskilled or inexperienced young people who may be taken advantage of.
- Workplaces with High Value Employees: Where some workers are viewed as highly valuable to the employer due to significant rainmaking or sales ability or particular highly sought after skills, there may be a reluctance to challenge poor behavior combined with a belief of the employee that the rules do not apply to them.
- Workplaces with Significant Power Disparities: Executives and administrative staff, military or hierarchical organizations, the lack of knowledge of how to report or the fear that reporting may lead to the loss of a job.
- Workplace Cultures that Tolerate or Encourage Alcohol Consumption: Reduced inhibitions, clients or customers feeling emboldened by alcohol.
- Workplaces that Rely on Customer Service or Client Satisfaction: Entities where compensation is directly tied to customer service or client satisfaction, a tipped employee or a commissioned salesperson.
Employers should challenge themselves to look at these and the other risk factors set out in the Report to determine whether they are at risk for harassment issues. They should review not only their policies, but how their policies are implemented and whether employees, including high level management employees, are held accountable for their behavior. Not only will such self-examination reduce the risk of litigation, it is good business with a direct link to recruiting and retaining talented and motivated employees.
In October, the EEOC unveiled its four year Strategic Enforcement Plan (SEP). The SEP provides employers insight into areas the EEOC plans to focus on in the coming years. This heads-up plan allows companies to take steps to ensure their businesses are compliant when there is a knock at the door.
The new SEP does not contain any major changes from the EEOC’s prior strategic direction. Instead, the EEOC will continue its emphasis on many of the priorities that it set forth in the 2012-2016 four year SEP. Employers should expect continued focus on the EEOC bringing litigation in large-scale, high-profile and high-impact cases. Employers should also be careful when classifying workers as independent contractors or temporary workers.
For Fiscal Years 2017-2021, the EEOC has identified six priority areas under this new SEP. Employers should be mindful of this direction and review their internal policies to confirm they are in conformity with the law in the following areas:
- Eliminating Barriers in Recruitment and Hiring
The EEOC will prioritize eliminating discrimination related to recruitment and hiring, including employer policies and practices of exclusion, screening that disproportionately impacts workers in protected categories, and placing of individuals into specific jobs inappropriately based upon protected categories.
Employers: Review your hiring policies to confirm there are no discriminatory practices in your recruitment and hiring processes or procedures. For example, revisit your employment applications and determine whether any tests or surveys you make employees complete disproportionately impact a protected class or are inaccessible for persons with disabilities.
- Protecting Vulnerable Workers, Including Immigrant, and Migrant Workers, and Underserved Communities from Discrimination
The EEOC will prioritize enforcing equality for immigrant and migrant workers and persons perceived to be members of these groups as well as other underserved communities.
Employers: Identify those vulnerable, immigrant, and migrant workers and underserved communities in particular areas. Employers should assess whether they have workforce policies and practices that impact these workers or underserved communities.
- Addressing Selected Emerging and Developing Issues
The EEOC will focus on the following areas: (a) inflexible leave policies that discriminate against individuals with disabilities; (b) pregnancy-related limitations that violate the Pregnancy Discrimination Act and the Americans with Disabilities Act Amendments Act; (c) the increasing and continued complexity of employment relationships and work-structures, including those relationships involving temporary workers, staffing agencies, independent contractors, and the on-demand economy (for example, Uber drivers); (d) LGBTQ discrimination; (e) discriminatory practices against persons of Arab, Middle Eastern or South Asian descent, those who are Muslim or Sikh, and persons perceived to be members of these groups.
Employers: Review your leave policies and ensure leave is considered as a reasonable accommodation for employees who are unable to work or to return to work after a leave due to a disability. Review your policies on providing accommodations for pregnant workers. Schedule training for all managers/supervisors and employees to educate them about laws protecting employees against discrimination and each person’s obligation to promote and maintain a discrimination and harassment-free workplace.
Determine whether you are properly classifying workers as employees, independent contractors, or temporary/seasonal workers, as the EEOC continues its focus in this area as it has in the past many years. Importantly, this SEP acknowledges the changing workforce in the 21st Century. More and more people are working in alternative or contingent workplace arrangements, including the Uber-like on-demand jobs of today. This SEP will likely involve the EEOC’s closer look and focus on these types of emerging work arrangements, and employers can expect the EEOC to challenge and litigate these high-profile issues in the coming years.
- Ensuring Equal Pay Protections for All Workers
The EEOC will renew its focus on safeguarding compensation systems and ensuring such practices do not discriminate against workers based on race, religion, ethnicity, sex, age, disability, or any other protected categories under the law.
Employers: Employers should review their current compensation policies and practices to ensure that all employees are receiving the pay to which they are entitled. This may include an audit of the company’s compensation structure. Companies should consider having outside legal counsel perform such an audit as that process may allow for certain privilege protections.
- Preserving Access to the Legal System
The EEOC will target employer policies that impede the ability of employees to pursue their workplace rights. This includes aiming its efforts at overly broad waivers or releases and mandatory arbitration provisions as well as ending practices that deter employees from exercising their legal rights. The EEOC will also focus on ensuring employers maintain the appropriate applicant and employee data and records as required by EEOC regulations.
Employers: Review the language in your waivers, releases, and arbitration agreements. Review the language in your handbook policies to ensure they do not stifle employees ability to exercise their legal rights in the workplace. Confirm your company is properly retaining documents as required under the law.
- Preventing Systemic Harassment
The EEOC will renew its heightened focus on ending harassment in the workplace. Continued attention will be given to workplace policies and practices. Again, focus will be given to deterrence measures that put a stop to future harassment. With an expected increase in litigation, this includes the EEOC bringing enforcement actions in court against companies that seek monetary damages and injunctive relief.
Employers: Review your handbook policies and procedures on appropriate behavior in the workplace and anti-harassment and retaliation policies. Train managers, supervisors, and employees about expected behavior in the workplace and everyone’s obligation to promote a harassment and discrimination free workplace.
Employer should start preparing for the next four years today.
Effective October 1, 2016, “places of public accommodation” in Massachusetts are prohibited from discriminating against persons based on their gender identity. Under this new anti-discrimination law signed by Governor Charlie Baker this summer, places of public accommodation must allow individuals to use or access gender-segregated areas such as bathrooms and locker rooms consistent with their gender identity.
A place of public accommodation is “any place, whether licensed or unlicensed, which is open to and accepts or solicits the patronage of the general public,” including:
- Hotels, inns, motels, campgrounds, resorts;
- Restaurants, bars, and other establishments serving food or drink;
- Theaters, concert halls, sports stadiums, and other places of entertainment;
- Auditoriums, convention centers, lecture halls, houses of worship, and other places of public gathering;
- Sales and rental establishments, including stores, shopping centers, automobile rental agencies, and other retail establishments;
- Service establishments, including laundromats, dry-cleaners, banks, barber shops, travel agents, gas stations, funeral parlors, employment agencies, and providers of professional services such as lawyers, doctors, dentists, accountants, and insurance agents;
- Health care facilities, including dental and medical offices, pharmacies, clinics, hospitals, nursing homes, and other health facilities;
- Transportation vehicles of all types and transportation stations, terminals, depots, platforms and facilities appurtenant thereto;
- Museums, libraries, galleries, and other places of public display or collection;
- Parks, zoos, amusement parks, and other places of recreation;
- Child care centers, senior citizens centers, homeless shelters, food banks, adoption agencies, and other social service establishments;
- Gymnasiums, health spas, bowling alleys, swimming pools, beaches, golf courses, and other places of exercises or recreation.
The Massachusetts Commission Against Discrimination (MCAD) oversees enforcement of this law. It is authorized “to adopt, promulgate, amend, and rescind rules and regulations or to formulate policies and make recommendations to effectuate” its purposes.
Gender identity has been a protected category in the Commonwealth in employment, education, and housing since legislation in 2011. Employers with six or more employees are prohibited from discriminating against transgender individuals in the workplace. Following the adoption of that law, MCAD issued a fact sheet that advised employers that denying employees permission “to use the bathroom of one’s identifying gender could be viewed as discriminatory.”
The EEOC has also issued a fact sheet entitled “Bathroom Access Right for Transgender Employees Under Title VII of the Civil rights Act of 1964.” Under that publication, the EEOC takes the position that discrimination based on transgender status is sex discrimination in violation of Title VII. Thus, the EEOC would find the denial of equal access to a common restroom of the employee’s gender identity or requiring an employee to undergo or provide proof of surgery or other medical procedure as sex discrimination. That publication also cites to OSHA’s A Guide to Restroom Access for Transgender Workers. OSHA advises that the best restroom policies include options, which employees may choose from, and include:
- Single-occupancy gender-neutral (unisex) facilities; and
- Use of multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls.
OSHA has noted that, “Regardless of the physical layout of a worksite, all employers need to find solutions that are safe and convenient and respect transgender employees.”
Some businesses have expressed safety concerns about people accessing segregated facilities like bathrooms or locker rooms for improper reasons. In the education setting, my colleague Linda Johnson has written about the U.S. Supreme Court’s decision on August 3, 2016 to put on hold a lower federal court ruling that a transgender male student be allowed to use the bathroom of his gender identity until the Supreme Court rules on the School Board’s petition for appeal. My colleague Adam Hamel has also written about laws, and proposed laws, which seek to limit access to public restrooms based on the gender assigned to a person at birth and what those “bathroom bills” mean for employers.
Massachusetts employers who open their doors to the public should train their employees on this new law. Employees need to understand these gender identify protections for members of the public accessing their facilities. Companies should also review their non-discrimination policies to ensure that they are up-to-date.