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

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

The United States Equal Employment Opportunity Commission (“EEOC”) announced on June 2, 2016 its intention to issue a revised comprehensive enforcement guidance addressing national origin discrimination under Title VII.  The proposed guidance will be open for public comment for thirty days only beginning July 1, 2016.

The EEOC has issued a number of guidance documents in the past several years addressing such matters as pregnancy discrimination, the wearing of religious garb at work and privacy issues associated with employer wellness programs.  National origin discrimination includes discrimination on the basis of an individual’s or his or her ancestors’ place of origin.  The issue of national origin discrimination was last addressed by the EEOC in a guidance fourteen years ago.  In determining that the time was right for new guidance the EEOC commented on the fact that the US workforce “is ethnically diverse, reflecting both immigration and the ongoing assimilation of first- and second-generation Americans.”  In addition, in the last decade the immigrant population in 13 states with historically smaller  established immigrant communities grew to more than twice the national average.

Although agency guidance is not law, it is the enforcing agency’s interpretation of how applicable laws and regulations should be applied.  Thus, a guidance will have substantial persuasive effect and will give the employer a roadmap for avoiding possible claims of discrimination.  In fiscal year 2015, 11 percent of private sector charges filed with the EEOC contained a national origin component.

The revised guidance addresses job segregation, human trafficking and intersectional discrimination (discrimination due to a combination of two or more protected bases such as national origin and religion).  The EEOC itself identified protecting “immigrant, migrant, and other vulnerable populations” as part of its most recent strategic enforcement plan.

Input may be provided by mail to the EEOC at Public Input, EEOC, Executive officer, 131 M Street, N.E., Washington D.C. 20507 or via email by using www.regulations.gov.

Photo: jaliyaj via Flickr (CC by 2.0)
Photo: jaliyaj via Flickr (CC by 2.0)

Last month, national retail chain Target announced that it would allow transgender employees and customers to choose the restroom and fitting room facilities that correspond to their gender identity.  Target took this step in response to laws, and proposed laws, in places like North Carolina and elsewhere, which seek to limit access to public restrooms based on the gender assigned to a person at birth.  These laws, and Target’s actions, have sparked an animated debate with people expressing strong feelings on both sides of the issue.  All of this has left many employers wondering what their responsibilities are with regard to bathroom access for their employees.

This week, the EEOC issued a Fact Sheet on Bathroom Access Rights of Transgender Employees Under Title VII of the Civil Rights Act of 1964, which sheds some light on the matter.  The EEOC reminds employers that Title VII, which applies to private employers with 15 or more employees, prohibits employment discrimination based on sex, which encompasses gender identity.  The EEOC referenced two recent agency decisions and an opinion from the Fourth Circuit Court of Appeals, all relating to discrimination based on transgender status, and involving access to restrooms and locker rooms.  The EEOC points out that contrary state law or local ordinance will not provide any defense to an employer facing charges of discrimination under Title VII.  In an apparent acknowledgement of the deeply held beliefs asserted by the proponents of the so called “Bathroom Bills,” the EEOC emphasizes that Title VII only addresses workplace conduct, not personal beliefs.  As the EEOC explains, “these protections do not require any employee to change beliefs.  Rather, they seek to ensure appropriate workplace treatment so that all employees may perform their jobs free from discrimination.”

OSHA has also offered its guidance to employers on the issue of providing bathroom access to transgender employees.  OSHA’s Sanitation Standard requires employers to provide employees with prompt access to appropriate sanitary facilities.  It is OSHA’s position that this requires employers to permit employees to use the facilities that correspond with their gender identity.  OSHA suggests that employers provide employees with various options that employees may, but are not required to, choose to use, such as gender-neutral single-occupant restrooms or multiple-occupant restroom facilities with lockable single-occupant stalls.  However, OSHA emphasizes that, regardless of the workplace’s layout, “all employers need to find solutions that are safe and convenient and respect transgender employees.”

So, while the cable news talking heads and social media commenters continue to have their say about the bathroom wars, the EEOC and OSHA have made their position on the issue clear.

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.