Attorney General Jeff Sessions on October 4, 2017 issued a memorandum to all US Attorneys signaling a change in the previously articulated position of the United States Department of Justice (DOJ) on transgender employment discrimination. The memorandum, entitled Revised Treatment of Transgender Employment Discrimination Claims, states that in pending and future cases, the DOJ will take the position that Title VII of the Civil Rights Act of 1964 does not provide protection against discrimination based on gender identity. Sessions concedes that some federal courts have interpreted the law differently, and advises his US Attorneys to preserve the issue for “further review” or appeal.
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.”
In a highly-anticipated decision issued yesterday, the Massachusetts Supreme Judicial Court reversed a lower court’s dismissal of a suit filed by a woman who was fired because of her off-duty use of medical marijuana. The SJC held that the woman’s claims for disability discrimination under the Massachusetts antidiscrimination statute, G.L. ch. 151B, could go forward.
One of the key provisions of the new Massachusetts Equal Pay Act (which goes into effect on July 1, 2018) is that it prohibits employers from requiring prospective employees to disclose their salary history. The reasoning behind this provision is as follows: if employers are allowed to ask applicants about their salary history, and base compensation on the answers to those questions, applicants who have been on the receiving end of discriminatory pay practices in the past will continue to be hampered by past pay inequity throughout their careers. If employers cannot base pay on what an applicant made previously, so the thinking goes, employers will have to set pay based on what the job is worth.
On June 13, 2017, Uber released to its employees excerpts of a damning independent investigation report authored by independent investigators Eric Holder and Tammy Albarran, attorneys with the law firm of Covington & Burling LLP. On February 19, 2017, former Uber engineer Susan Fowler published a blog post detailing allegations of harassment, discrimination and retaliation at the company during her tenure. She also decried the ineffectiveness of Uber’s policies and procedures in addressing such workplace issues. The very next day Uber hired Former Attorney General Holder and his law firm to conduct a review of the issues raised by Fowler as well as diversity and inclusion more broadly at Uber. Continue Reading Holder’s Advice to Uber: Focus on Tone at the Top, Trust, Transformation and Accountability
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
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.
Co-written by: Jacqueline Botchman, a third year law student at the University of New Hampshire School of Law
The U.S. Equal Employment Opportunity Commission on Wednesday, July 13, 2016 publicized a revised proposal to expand pay data collection through the Employer Information Report (EEO-1). The proposed revision would require private employers and federal contractors with 100 or more employees to include pay and hour data by sex, race, and ethnicity as well as job category to their EEO-1 starting in 2017. Data collected will help the EEOC better understand the scope of the pay gap and focus enforcement resources on employers that are more likely to be out of compliance with federal laws.
The proposal, if accepted, will require employers to collect data on ten job categories by both gender and race and ethnicity.
- The ten EEO-1 job categories are: Executive/Senior Level Officials and Managers; First/Mid-Level Officials and Managers; Professionals; Technicians; Sales Workers; Administrative Support Workers; Craft Workers; Operatives; Laborers and Helpers; Service Workers.
- The seven race and ethnicity groups are: Hispanic or Latino; White (Not Hispanic or Latino); Black or African American (Not Hispanic or Latino); Native Hawaiian or Other Pacific Islander (Not Hispanic or Latino); Asian (Not Hispanic or Latino); American Indian or Alaska Native (Not Hispanic or Latino); and Two or More Races (Not Hispanic or Latino).
The proposal’s goal is to combat pay discrimination by assisting the agencies in identifying possible pay discrimination and helping employers in promoting equal pay in their workplaces.
In the press release, EEOC Chair Jenny R. Yang stated, “More than 50 years after pay discrimination became illegal, it remains a persistent problem for too many Americans.” “Collecting pay data is a significant step forward in addressing discriminatory pay practices. This information will assist employers in evaluating their pay practices to prevent pay discrimination and strengthen enforcement of our federal anti-discrimination laws.”
U.S. Secretary of Labor Thomas E. Perez added, “Better data means better policy and less pay disparity. As much as the workplace has changed for the better in the last half century, there are important steps that we can and must take to ensure an end to employment discrimination.”
Employers must be careful as there are laws protecting employees from sharing information or complaining about pay. As of January 1, 2015, New Hampshire prohibits employers from retaliating against employees for disclosing their wages to another employee. (To view this statute, click here.) Additionally, an employer is prohibited from discharging or discriminating against an employee in retaliation for making a complaint, instituting a proceeding, or testifying in a proceeding concerning New Hampshire’s equal pay laws. Under these laws, an employer may not discriminate on the basis of sex in the payment of wages. An employer who retaliates against the employee could be charged with a misdemeanor. (To view this statute, click here.) Employers should train managers and supervisors on this law.
Members of the public have until August 15, 2016, to submit comments on the revised rule proposal to the United States Office of Management and Budget. The link to provide information to the EEOC is http://www.regulations.gov, which is the Federal eRulemaking Portal. Members can also submit a comment by e-mail or mail.
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In a historic moment, yesterday, Governor Charlie Baker signed into law a comprehensive pay-equity bill aimed at eradicating the wage gap in Massachusetts. With the bill’s passage, Massachusetts has become the first state in the nation to prohibit employers from asking job applicants to provide a salary history during the interview process.
Supporters of the law argued that the practice of requesting a salary history has been shown to disadvantage women, who, on average, are paid less than men. The bill aims to eliminate discrimination in the payment of wages on the basis of gender, promote salary transparency, and encourage employers to review salaries to identify pay disparities within their organizations.
The new law is discussed in more detail here. The legislation goes into effect on July 1, 2018.