In the United States, certain religious schools are legally permitted to limit or discontinue student enrollment if:

the atmosphere or conduct within a particular home, the activities of a parent or guardian, or the activities of the student are counter to, or are in opposition to, the biblical lifestyle the school teaches. This includes, but is not limited to contumacious behavior, divisive conduct, and participating in, supporting, or condoning sexual immorality, homosexual activity or bi-sexual activity, promoting such practices, or being unable to support the moral principles of the school. (Lev. 20:13 and Romans 1:27.)

Continue Reading The Most Famous Elementary School Art Teacher in the United States and What She Has to Teach us About Discrimination

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.

Continue Reading DOJ Changes Course on Transgender Discrimination

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.”

Continue Reading Department of Justice Contradicts EEOC in Sexual Orientation Discrimination Case

Photo: Uber.com/media
Photo: Uber.com/media

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

Earlier this week, the New Hampshire Supreme Court issued an opinion holding that the New Hampshire Law Against Discrimination, RSA Chapter 354-A, can impose liability upon individual employees for aiding and abetting discrimination in the workplace, and for retaliation against another employee in the workplace of a qualifying employer.

The issue came before the New Hampshire Supreme Court in the form of a certified question from the United States District Court for the District of New Hampshire, in connection with a case pending in that court.  In the underlying case, a female employee brought suit against her employer for sexual harassment and retaliation under federal law (Title VII) and state law (RSA chapter 354-A).  The plaintiff also sued an individual employee under state law.  (Under current First Circuit precedent, there is no individual liability under the federal Title VII law.)  Because the New Hampshire Supreme Court has never specifically addressed the question of whether individuals can be held liable under Chapter 354-A, the Federal Court asked for clarification on the issue.

The New Hampshire Law Against Discrimination identifies certain acts which, when committed by an “employer,” constitute unlawful discriminatory practices.  The New Hampshire Supreme Court pointed out that the law also provides that “any act of aiding, abetting, inciting, compelling or coercing another to commit an unlawful discriminatory practice, or attempting to do so, or obstructing or preventing any person from complying with the [law] is itself an unlawful discriminatory practice.”  The Court noted that the law allows an aggrieved person to purse a claim against a “person, employer, labor organization, employment agency or public accommodation alleged to have committed the unlawful discriminatory practice.”  Since “person” is defined in the law as “one or more individuals, partnerships,  associations, corporations, legal representatives, mutual companies, joint-stock companies, trusts, trustees in bankruptcy, receivers, and the state and all political subdivisions, boards, and commissions thereof,” the Court concluded that individuals can be liable under the New Hampshire Law Against Discrimination.

The New Hampshire Law Against Discrimination only applies to employers with six or more employees.  The Court addressed the issue of whether an individual employee of an employer with fewer than six employees could be individually liable.  The Court held that one can only be found liable for aiding and abetting discriminatory conduct that is illegal under the New Hampshire Law Against Discrimination.  Therefore, if the conduct of a smaller employer is not actionable because the employer is exempt from the law due to its size, there can be no liability for aiding and abetting.

The Court came to a similar conclusion with regard to individual liability for retaliation under the New Hampshire Law Against Discrimination.  The Court held that the statute’s language makes clear that “as is relevant in the employment context … any ‘person’ may be held liable for retaliation without regard to whether that person is also an ‘employer.’”  As it did with the question of aiding and abetting, the Court found that “it would be illogical to hold individual employees liable for retaliation when they are employed by an employer that is exempt from liability” due to the size of the employer, and accordingly, the Court held that only individual employees of qualifying employers (i.e., employers with six or more employees) could be held liable for retaliation.

This week’s holding brings New Hampshire law in line with existing law in the neighboring Bay State on the issue of individual liability.  Under the Massachusetts anti-discrimination statute (G.L. Chapter 151B) “any person, whether an employer or an employee or not,” may be held liable for aiding, abetting, inciting, compelling or coercing the doing of any of the acts forbidden under the law.

The case is U.S. Equal Employment Opportunity Commission, et al. v. Fred Fuller Oil Company, et al., Case No. 2015-0258 (Feb. 23, 2016).  A copy of the opinion can be downloaded at the Court’s website.

Photo: Pictures of Money via Flickr (CC by 2.0)
Photo: Pictures of Money via Flickr (CC by 2.0)

Seven years after the Lilly Ledbetter Fair Pay Act was signed into law, the Obama Administration has announced additional steps to address the gender pay gap in this country.  Specifically, the Equal Employment Opportunity Commission (EEOC) has proposed changes to the Employer Information Report (EEO-1) that would require businesses with more than 100 employees to submit detailed salary and pay information for each employee broken down by gender, race and ethnicity.  The White House says the goal of this proposal is to “focus public enforcement of our equal pay laws and provide better insight into discriminatory pay practices across industries and occupations.”  Both the EEOC and the Office of Federal Contract Compliance Programs would have access to the pay data for enforcement purposes.

The proposed Revision to the EEO-1 was published in the Federal Register on February 1, 2016.  Interested parties have until April 1, 2016 to submit comments.  While the rulemaking process is expected to be complete by September 2016, affected employers will not need to submit the additional salary and pay information until 2017 if the Revision is adopted as is.

To prepare for the new reporting requirements, employers with more than 100 employees should begin evaluating their pay practices now to identify any areas of pay disparity that should be addressed before the 2017 reporting period begins.  Although this is information that employers should routinely examine and keep records of, even if just to be aware of potential inequities in salary structures and to be able to defend themselves against pay disparity claims, the revised reporting requirement will add a significant additional burden on companies required to complete the EEO-1.

The proposed Revision to the EEO-1 can be found here.

Yesterday, U.S. Attorney General Eric Holder issued a memo setting out the Obama Administration’s position that Title VII specifically prohibits discrimination based on transgender status or gender identity per se.

In the memo, Attorney General Holder pointed out that questions have arisen in a number of administrative and judicial contexts as to the appropriate legal standard applicable to claims of gender identity discrimination.  While courts have recognized gender identity discrimination claims under a “sex-stereotyping” theory – discrimination based on a perceived failure to conform to particular gender characteristics – there is no consensus among courts as to whether discrimination based on gender identity or transgender status, per se, is illegal. Continue Reading DOJ Now Interprets Title VII as Prohibiting Discrimination Based on Transgender Status