EEOC: Discrimination Based on Gender Identity Violates Title VII

The EEOC issued its decision in Macy v. Holder  yesterday in which it held that an employer who discriminates against an applicant or an employee on the basis of gender identity violates Title VII's prohibitions against sex discrimination.  

Caucasian School Board Employee Successful in Race Discrimination, Constructive Discharge Claims

A Caucasian finance coordinator for a school district was reassigned to a position of food services assistant after the racial majority of the Board changed in an election. The employee then took sick leave, and while on leave, requested that the Board provide her with information concerning her new job duties and requested a new contract. The Board provided neither. After being on leave for roughly ten months, the superintendent notified the employee that he was recommending her termination given that she had exhausted her sick days. The employee then provided a doctor's note indicating her ability to return to work. She was told she would have a contract for the food services assistant position when she returned, but the Board failed to provide the contract or any information concerning the new job role. Within weeks, she resigned her position and filed suit alleging race discrimination, hostile work environment, and constructive discharge pursuant to Title VII. The race discrimination and constructive discharge claims proceeded to jury trial, as did the employee's request for punitive damages. The jury found that the demotion from finance coordinator to food services assistant was an adverse employment action which was based on race, and that she was effectively forced out of her position due to race, and awarded her $70,825. She was also awarded punitive damages against the individual Board members. The Board moved to set aside the jury's verdicts, and the Court agreed, leaving only the $10,000 award of compensatory damages in tact. The employee appealed. The Eighth Circuit Court of Appeals agreed with the employee, in part, in finding that the evidence presented was sufficient to permit a reasonable jury to conclude that the change in position was a demotion with diminution in title and significantly decreased responsibilities, and could be found demeaning and thus support a claim for constructive discharge. The Appellate Court's role was to determine whether there was a complete absence of probative facts to support the jury's verdict, and the Court could not say that there was. The jury's verdict was reinstated, but the issue of punitive damages was remanded back to the trial court so that the jury could be properly instructed regarding the affirmative defense of "ignorance" of the law before determining any award. More ›

Title VII "Ministerial Exception" Does Not Apply to Technology Teacher in Catholic School

A federal district court in Ohio has found that Title VII's "ministerial exception" does not apply to a non-Catholic technology teacher at a Catholic school. The Ohio case, Dias v. Archdiocese of Cincinnati, et al., was one of the first to analyze the ministerial exception following the U.S. Supreme Court's January 2012 ruling that the exception applied to a teacher at a Lutheran school in Hosanna-Tabor Church v. Equal Employment Opportunity Commission. More ›

Female Manager may Proceed with pay Disparity-Gender Discrimination Claim

The concept of equal pay for equal work seems simple to understand and apply. If Jan and Joe have similar education, skills, and experience, and perform similar work, it is reasonable to assume that their pay is also the same. Unfortunately, this is not always the case, even though the Equal Pay Act has been on the books for nearly 50 years. The Seventh Circuit recently dealt with this issue in King v. Acosta Sales & Marketing, Inc.. (11-3617, Mar. 13, 2012). Plaintiff, a sales manager, performed the same duties and responsibilities as her male peers and was highly successful—in fact, more successful than many of them, yet, her salary, both when she started and when she ended her job, was substantially lower than that of her male co-workers. The numbers were shocking disproportional, with the highest paid male sales managers often earning two to three times more than she made. More ›

Transsexual Employee Covered by 14th Amendment’s Equal Protection Clause

A public employee was terminated after she alerted her supervisors of her intent to transition from a man to a woman and come to work as a woman. The decision to terminate the employee was based on the employer’s perception of the employee as “a man dressed as a woman and made up as a woman” and on the “sheer fact of the transition.” The employee sued the employer, alleging claims of sex discrimination in violation of the Equal Protection Clause of the 14th Amendment. The U.S. Court of Appeals for the Eleventh Circuit held that discriminating against someone on the basis of his or her gender nonconformity constitutes sex-based discrimination under the Equal Protection Clause. In effect, discriminating against someone who fails to act according to socially prescribed gender roles constitutes actionable discrimination. Public employers should be aware that the Equal Protection Clause provides another legal basis for some employees, including individuals who otherwise may not be able to claim protected status under Title VII of the Civil Rights Act of 1964, as amended, to contest gender discrimination in the employment context. While this opinion is somewhat limited to public employers, all employers should also refrain from taking disciplinary action against individuals solely for not conforming with societal gender norms, as similar legal theories have been successfully litigated under Title VII.

Glenn v. Brumby, No. 10-14833 & No. 10-15015 (11th Cir. Dec. 6, 2011)

Seventh Circuit Emphasizes "Flexible" Similarly-Situated test in Discrimination Case Involving Threats, Violence at USPS

A female African-American Postal Service employee of 35 years voluntarily entered a psychiatric clinic to be treated for depression, anxiety, and insomnia. While in treatment, she admitted having homicidal thoughts toward her supervisor. She was eventually discharged after much improvement and returned to work, but her supervisor learned of the threats after calling the clinic. She was almost immediately terminated for what the employer said was a violation of its workplace anti-violence policy.

The employee sued the Postal Service, alleging that she had actually been terminated based upon her race and sex in violation of Title VII of the Civil Rights Act of 1964, as amended. As part of her case, she showed that, shortly before her threats became known, two white male workers who had “jokingly” held down a black worker and pulled a knife on him had only been suspended for 7 days. She argued that this was evidence that the anti-violence policy was a pretext for the actual discriminatory reasons for her termination. The district court granted summary judgment for the Postal Service, reasoning that the male workers, who worked in different positions than the employee and committed a different violation, had not been “similarly situated” to the employee and so could not be used to prove her case.

On appeal, the U.S. Court of Appeals for the Seventh Circuit reversed. The Seventh Circuit held that the district court’s analysis of the “similarly situated” question had been far too demanding. Because the male workers had been terminated by the same decisionmaker, were subject to the same anti-violence policy, and had committed a violation of at least equivalent — and possibly greater — seriousness, they were sufficiently “similarly situated,” and could be used to show that the employer had terminated the female employee for discriminatory reasons rather than violation of the anti-violence policy. The Seventh Circuit emphasized that it is concerned about “the tendency of judges in employment discrimination cases to require closer and closer comparability between the plaintiff and members of the comparison group,” because “[d]emanding nearly identical comparators can transform this evidentiary ‘boost’ into an insurmountable hurdle.”

In light of the Seventh Circuit's statements regarding the flexibility of the "similarly situated" test, employers should ensure that all disciplinary policies are evenly enforced among all employees. Any discrepancy in enforcement can later be used as comparative evidence to support a discrimination claim.

Employee Not Subjected to "Materially Adverse" Action to Allow Retaliation Claim

A security officer complained to his employer that he was being sexually harassed by the employee in charge of training him to use firearms. In response to the security officer’s complaints, the employer staged an internal investigation and took action to prevent any further harassment. During the same period of time, the employer investigated the security officer’s excessive use of sick leave and his failure to check in equipment. The employer also required the security officer to attend a meeting on his day off without first informing him that the subject of the meeting was his alleged sexual harassment. Additionally, the employer threatened the security officer with termination, singled him out at an employee meeting by “staring” at him, and switched the security officer from day to night shift after he requested the change. The officer resigned and then sued the employer, alleging that he was retaliated against in violation of Title VII of the Civil Rights Act of 1964, as amended. The U.S. Court of Appeals for the Second Circuit found that the officer was never subjected to “materially adverse” action that would “dissuad[e] a reasonable worker from making or supporting a charge of discrimination.” Consequently, the court rejected the officer’s retaliation claim. Specifically, the court found that the investigations into the officer’s sick leave and misuse of equipment were warranted and were not disciplinary in nature. Additionally, requiring the officer to attend a meeting concerning his own sexual harassment complaints is not something that would dissuade a worker from making or supporting a charge. Finally, a shift change requested by the employee himself is not an adverse action, and without more, personality conflicts and verbal threats are “trivial harms” that also do not constitute materially adverse actions. While the employee’s retaliation claim failed in this case, employers must continue to ensure that an employee never becomes the target of adverse action because he or she has filed complaints of discrimination or harassment.

Tepperwien v. Entergy Nuclear Operations, Inc., Case No. 10-1425 (2nd Cir. Oct. 31, 2011)

Court Allows Employee’s Harassment Claim to Proceed to Jury to Determine Causation

During a business dinner, a member of the organization’s board of directors told an employee that he “fantasized about making love to her on a dance floor and wanted to take her to Las Vegas and other places around the world.” The employee declined the board member’s advances, and complained to the human resources department about the harassment. Shortly thereafter, the employer underwent personnel changes, which included the hiring of a new president. In this process, the employee was notified that her position was being eliminated. She sued, alleging sex discrimination, harassment and retaliation under Title VII of the Civil Rights Act of 1964, as amended. With respect to the sex harassment claim, the U.S. Court of Appeals for the Seventh Circuit held that the single sexual advance by the board member did not rise to the requisite level of “severe and pervasive” harassment. However, as to the remainder of the claims, the court found that there existed sufficient questions of fact such that the claims should go to the jury. For instance, the court indicated that the jury should make the determination of whether or not the employee’s termination was causally related to the making of her harassment complaint, particularly given the fact that four new employees were hired at or around the time the employee was terminated. As best practice, employers should ensure that all employees — particularly management-level employees — receive training in anti-discrimination and anti-harassment policies. Employees must be made aware that their conduct, even during off-site or off-duty events, may constitute harassment.

Egan v. Freedom Bank, No. 10-1214 (7th Cir. Oct. 6, 2011)

Eighth Circuit Denies Class Certification Based on Dukes and Admits Third-Party Evidence to Prove Plaintiffs’ Claims

Six African American employees who worked in their employer’s steel plant in Blytheville, Arkansas, sued the employer. They alleged that the employer had violated Title VII of the Civil Rights Act of 1964, as amended, by systematically refusing to promote black employees and by allowing for a racially hostile work environment. In addition to their own claims, the employees sought to represent a class of approximately 100 other employees and job applicants representing the plant’s five different departments. The district court denied the request for class certification but allowed the employees’ six hostile work environment claims to proceed to jury trial. Each plaintiff was awarded $200,000 in damages. The employer appealed, contending that the court erred during the trial by allowing admission of evidence of alleged discrimination against employees other than plaintiffs. Plaintiffs cross-appealed, objecting to the court’s denial of class certification. The U.S Court of Appeals for the Eighth Circuit affirmed the district court on both grounds. First, in addressing plaintiffs’ argument regarding the denial of class certification, the court looked to the U.S. Supreme Court’s recent determinations on class action matters in this context and determined that although all of the claims involved the Blytheville plant, the class was improper under Wal-Mart v. Dukes, 564 U. S. ____ (2011), because “employment practices varied substantially across the plant’s various production departments.” Second, regarding the employer’s evidentiary objections, the court found that the nonparty evidence was admissible because such evidence “can be relevant to a plaintiff’s hostile work environment claim,” and because, in this case, the district court had conducted a fact-based analysis to determine whether each piece of evidence involved “the same place, the same time, [or] the same decision-makers” as the plaintiffs’ claims. This case demonstrates the compromise that some courts have begun striking in the wake of Dukes: where class actions are denied, parties are permitted to more broadly use evidence of discrimination or other wrongs against nonparties to prove their cases. Employers should be aware of this when managing employees’ complaints or preparing to defend a lawsuit.

Bennett, et al. v. Nucor Corporation, Nos. 09-3831/3834 (8th Cir. Sept. 22, 2011)

Wal-Mart v. Dukes, 564 U. S. ____ (2011)

Hostile and Boorish Bullying Does Not Support Race-Based Hostile Work Environment Claim

A Caucasian employee severely injured when an African-American co-worker dropped a 940-pound steel coil on him sued his employer, arguing that his co-worker’s bullying behavior created a race-based hostile work environment under the Civil Rights Act of 1866 (42 U.S.C. § 1981). The U.S. Court of Appeals for the Seventh Circuit held that although the co-worker’s conduct was hostile and boorish, because the employee was not the target of racial slurs, epithets or overtly race-related behavior, the conduct was insufficient to create an abusive working environment. Furthermore, the court found it significant that the employee did not report his concerns to the proper official as required under the employer’s harassment policy. While the employer in this case escaped liability, employers should, in order to avoid lawsuits, be proactive and create positive work environments where employees are not subjected to abuse for any reason.