Tag Archives: Civil Rights Act of 1964

EEOC Approves Its Highly Anticipated Strategic Enforcement Plan – Adds Equal Pay to List of Nationwide Priorities

Contributed by Samantha Esmond

On September 10, 2012, we blogged about the EEOC’s proposed Strategic Enforcement Plan (SEP), which had been released for public comment.

On December 18, 2012, the EEOC announced that it officially approved its highly anticipated SEP for 2013-2016 with bipartisan support. The EEOC’s press release can be accessed at: http://www.eeoc.gov/eeoc/newsroom/release/12-18-12a.cfm

According to the EEOC, the purpose of the SEP is “to focus and coordinate the EEOC’s programs to have sustainable impact in reducing and deterring discriminatory practices in the workplace.” Notably, the final version of the SEP has added “equal pay enforcement” to its list of national priorities.

The approved SEP identifies and highlights the following areas as national priorities:

  1. Eliminating barriers in recruitment and hiring;
  2. Protecting immigrant, migrant, and other vulnerable workers;
  3. Addressing emerging and developing employment discrimination issues (such as certain ADA issues, including coverage, reasonable accommodation, qualification standards, undue hardship, and direct threat, accommodating pregnancy-related limitations under the ADAAA and the Pregnancy Discrimination Act, and coverage of lesbian, gay, bisexual, and transgender individuals under Title VII’s sex discrimination provisions);
  4. Enforcing equal pay laws;
  5. Preserving access to the legal system; and
  6. Preventing harassment through systematic enforcement and outreach.

In addition to the above nationwide priorities, the SEP directs the 15 EEOC district offices to develop their own District Complement Plans by March 29, 2013, identifying, among other things, their own local enforcement priorities and describing how the district office will implement the SEP nationwide priorities.

It is also anticipated that the EEOC will take a more aggressive approach and give priority to systematic cases – those pattern or practice, policy, and/or class cases – where the alleged discrimination has a broad impact on a particular industry, occupation, business, or geographic area. While systematic cases generally involve a class of individuals, they may also originate from a single charging party alleging that an employment policy is discriminatory.

The approval of the SEP provides employers with insight into the types of issues the EEOC will likely target in the coming years. With the intensified investigative and enforcement efforts of the EEOC, employers will continue to face many challenges when responding to and defending against charges of discrimination.

Pretty Woman, Walk on Down the Street [and out of the workplace] – Firing Attractive Female Employee Due to Wife’s Demand NOT Sex Discrimination

Contributed by Terry Fox

The media, particularly the Internet, is abuzz with reports related to the Iowa Supreme Court’s decision that loosely “makes it ok” to fire a pretty woman. Nelson v. James H. Knight, DDS, P.C., 11-1857 (Iowa Supreme Court 12/21/12). At first glance, the decision screams sex discrimination to most people. There was no dispute that the attractive female was an above average employee. On further analysis, however, the decision is in line with established case law and the underpinnings of discrimination law.

Dentist James Knight employed Melissa Nelson as a dental hygienist when she was just 20 years old. She worked for Dr. Knight along with other exclusively female hygienists and office help. After ten and a half years, Dr. Knight fired Ms. Nelson, who by that time was married with children. The dentist and his assistant were close, and the relationship grew in the ten years’ time she was employed, with the two exchanging text messages outside the office on professional and personal topics. However, when Dr. Knight took his children to Colorado to ski one winter, Mrs. Knight discovered the text messages between her husband and Ms. Nelson. When Dr. Knight returned from the ski trip, Mrs. Knight demanded that he fire Ms. Nelson “because ‘she was a threat to our marriage.’”

Dr. Knight had previously commented that Ms. Nelson wore too tight clothing, that she should wear a lab coat so as not to distract him. Mrs. Knight found Nelson flirtatious towards her husband. When Nelson complained of the lack of frequent intimacy with her husband, Dr. Knight responded by observing it was “like having a Lamborghini in the garage but not driving it”. Nelson regarded Dr. Knight as a friend and a father figure. There was no sexual relationship between them, but Dr. Knight was concerned there would be in the future.

The trial court granted Dr. Knight summary judgment when the fired employee sued, on the basis that the termination was due to a threat to his marriage, not because of the employee’s sex. The Iowa Supreme Court agreed. That court pointed to decisions from around the country allowing an employer to fire an employee where a consensual relationship in the workplace lead to jealousy once the relationship ended, as well as decisions allowing an employer to treat an employee better because of the favorite’s sexual relationship with the boss. Noting that neither Title VII or the Iowa Civil Rights Act are “general fairness laws” precluding an employer from treating its employees unfairly, the Court rejected the employee’s argument that liability should be imposed where an employee is fired to avoid sexual harassment by the boss.

It is clear that had Dr. Knight fired all the females in his office, it would have been a different case. He replaced Nelson with another female, so sex discrimination appeared not to be the cause. The termination came after Knight and his wife consulted their pastor and the pastor attended the termination meeting. Knight also met with Nelson’s husband on the evening of the termination, again with the pastor present.

A broad view of the Nelson decision is that, had it turned out differently, the floodgates of personal appearance and body-type litigation would have been opened. Small employers are particularly vulnerable to that type of litigation, due to more modest resources and because one person usually makes the sole hiring/firing determination.

Who is a Supervisor for Purposes of Imposing Vicarious Liability under Title VII: U.S. Supreme Court Asks the Government to Weigh In

Contributed by Jon Hoag

A racial harassment case decided last June by the Seventh Circuit has received attention from the U.S. Supreme Court.  On February 21, 2012, the Supreme Court asked the Solicitor General to file a brief outlining the government’s view on the definition of “supervisor” under Title VII.  The definition of “supervisor” is important for determining when to impose vicarious liability on employers in Title VII harassment cases.  An employer is strictly liable for harassment by a supervisor and, in such cases, may only assert an affirmative defense when the harassment does not result in a tangible employment action. Generally, a tangible employment action involves a significant change in employment status, such as firing, demotion, reassignment, etc. Employers can more easily defend against alleged harassment by co-workers so long as the employer takes reasonable corrective action upon obtaining knowledge of or discovering the harassment.

In Maetta Vance v. Ball State University ,et al., the Seventh Circuit reached its determination that Ball State University was not liable for harassment alleged by Maetta Vance, in part, by rejecting Vance’s assertions that some of the alleged harassment stemmed from supervisors.  The Seventh Circuit declared that all of the alleged harassment was from co-workers and Ball State University took prompt and corrective action to remedy the alleged harassment.   

Vance is asking the Supreme Court to review the matter because there is a split in the circuits as to how the term “supervisor” is defined under Title VII.  According to Vance, the First and Eighth Circuits have adopted the Seventh Circuit’s definition of “supervisor” as someone that has authority over an employee’s “employment terms” and has “the power to hire, fire, demote, promote, transfer, or discipline.”  On the other hand, the Second, Fourth, and Ninth Circuits (and the EEOC) have decided that even employees that lack such authority can still meet the supervisor definition if the employee oversees another worker’s daily assignments and performance.

How the term “supervisor” is defined under Title VII is what determines when an employer might be subject to vicarious liability for Title VII harassment.  This will be an important case to monitor as it might impact how companies and organizations decide to delegate authority and/or help determine the necessary audience for addressing preventative measures such as supervisory training and instruction on the topic of Title VII harassment.

Lilly Ledbetter Fair Pay Act Retroactively Applied

Contributed by Allison Chaplick

In March 2011, the Seventh Circuit Court of Appeals allowed three white police officers to pursue claims of race discrimination under Title VII, even though it was determined that the lower court had properly ruled against allowing the claims to be pursued. How did the district court get something right, yet still be reversed? The answer is simple, yet complex: the law changed twice in the middle of a case.

Here’s how it all played out:

In Groesch v. City of Springfield, the district court initially decided for the officers, saying that each paycheck that the white officers received that was less than that of a similarly situated African American police officer amounted to “a separate and distinct discriminatory act” from which the plaintiffs could bring separate pay discrimination claims.

Then, in May 2007, the U.S. Supreme Court decided Ledbetter v. Goodyear Tire & Rubber Co. In Ledbetter, the Supreme Court rejected the “paycheck accrual” rule, concluding that the statute of limitations begins to run in pay discrimination cases when the discriminatory practice is adopted, and not each time an individual receives a paycheck. Based upon Ledbetter, the city filed another motion, and this time, the district court dismissed the officers’ claims based upon the Supreme Court’s rejection of the “paycheck accrual” rule. The police officers appealed, and while the case was pending before the Seventh Circuit Court of Appeals, the law was changed again.

Congress strongly disagreed with the Ledbetter decision, and enacted the Lilly Ledbetter Fair Pay Act of 2009. The Act even expressly provided that it should be applied retroactively to all claims pending on May 28, 2007–the day of the Supreme Court’s decision–or after. Because the police officers’ appeal had not yet been decided by the Seventh Circuit, the Ledbetter Act, and not the Ledbetter case, applied. After this legal “flip-flop,” the Seventh Circuit concluded that the police officers’ Title VII pay discrimination claims were covered by the Ledbetter Act because they alleged a “discriminatory compensation decision” that was made in 2000, and that their claims were based upon discriminatory payment of wages resulting from that decision.

The Ledbetter Act amends Title VII of the Civil Rights Act of 1964 by providing that the statute of limitations for filing a charge of discrimination begins with each paycheck affected by a discriminatory decision. Under the Ledbetter Act, Title VII now says that “unlawful discrimination” occurs when “(1) a discriminatory compensation decision or other practice is adopted; (2) an individual becomes subject to a discriminatory compensation decision or other practice; or (3) an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.” 42 U.S.C. §200-e5(e)(3)(A)(emphasis provided).

The scope of Title VII discrimination claims brought under the Lilly Ledbetter Fair Pay Act of 2009 is now very broad and the Seventh Circuit has interpreted this legislation to give it full force and effect. Employers must carefully evaluate their compensation and benefit policies and decisions.