Tag Archives: Title VII

EEOC Actively Enforces Equal Pay Violations

Contributed by Jonathon Hoag, November 28, 2017

The EEOC’s Strategic Enforcement Plan (SEP) for Fiscal Years 2017-2021 identified “Equal Pay” as a priority area that demands focused attention. The EEOC’s recent press releases show it is actively fulfilling this strategic mission.

gender equality

Gender equality scale

In the third scenario, the EEOC obtained a judgment against a pizza restaurant for violating the Equal Pay Act. Two high school friends-one male and one female-applied to be “pizza artists” and both were hired. However, the female applicant received $0.25 less an hour in starting pay. When she realized this discrepancy, she contacted the restaurant to complain. In response, the restaurant withdrew the offers of employment to both individuals. The EEOC’s attorney referenced the vast amount of recent news related to sexual harassment and stated unequal pay is simply another form of sex discrimination in the workplace. Further, the EEOC stressed that it will continue to thoroughly investigate and enforce equal pay requirements.

Bottom Line

The overwhelming media coverage of sexual harassment and unequal treatment in the workplace reinforces that employers must make equal treatment a top priority. Periodic review of policies and practices, with attention to pay policies, remains critical to limit employer exposure to lawsuits alleging unequal pay or treatment.

Seventh Circuit Issues Landmark Decision Holding that Title VII Prohibits Discrimination Based on Sexual Orientation

Contributed by Allison Sues, April 7, 2017

On April 4, 2017, the United States Court of Appeals for the Seventh Circuit, sitting en banc, held that discrimination based on sexual orientation is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964. The seventh circuit decision is significant as the first of its kind. The United States Supreme Court has never ruled whether Title VII prohibits discrimination based on sexual orientation, and the seventh circuit, as well as the other United States Circuit Courts of Appeals had previously established a long line of precedent holding that claims alleging sexual orientation discrimination fail to state a claim under Title VII.

16306823 - 3d illustration of scales of justice and gavel on orange background

llustration of scales of justice and gavel on orange background

In Hively v. Ivy Tech Community College of Indiana, Kimberly Hively, a lesbian, worked as a part-time adjunct professor. She believed that Ivy Tech discriminated against her because of her sexual orientation when they denied her applications for full-time positions and later failed to renew her part-time teaching contract. Hively filed a Title VII lawsuit alleging sexual orientation discrimination, and the district court dismissed the case for failure to state a claim. The seventh circuit originally heard Hively’s appeal and a panel of three judges affirmed the district court’s decision, holding that it was bound by prior precedent. A majority of judges sitting on the seventh circuit voted to rehear the case en banc, enabling the court to overrule its prior decisions.

In reaching its holding that Title VII’s proscription against sex discrimination includes mistreatment based on sexual orientation, the majority noted that Title VII cases already preclude discrimination based on associating with someone of a protected class. The majority cited an eleventh circuit case holding that discriminating against an employee because of his interracial marriage is a form of race discrimination under Title VII as an example. The majority also reasoned that Hively alleged discrimination based on her sex because she claimed that Ivy Tech would not have denied her promotions or terminated her employment if she were a man in a romantic relationship with a woman. The majority equated discrimination based on sexual orientation to discrimination based on gender non-conformity, which the Supreme Court had previously ruled was a type of sex discrimination. Specifically, in Price Waterhouse v. Hopkins, the Supreme Court held that gender stereotyping, such as discriminating against a woman because she is perceived as too manly, is prohibited under Title VII, and in Oncale v. Sundowner Offshore Services, Inc., the Court held that same-sex harassment is prohibited under Title VII. Judge Posner’s concurring opinion added that changing societal norms justify updated interpretations of federal law. The dissent criticized the majority for overstepping the role of the judiciary, arguing that any change in the meaning of sex discrimination needed to come from Congress.

Ivy Tech has indicated that it will not appeal the decision to the Supreme Court and instead plans to defend the case on its merits following the remand to the trial court. Therefore, Hively will be the law of Illinois, Indiana, and Wisconsin until a different sexual orientation discrimination case makes it way to the Supreme Court – an event likely to happen now that there is clear division between the circuit courts on this issue.

Employers in Illinois and Wisconsin should already maintain policies prohibiting discrimination based on sexual orientation because Illinois and Wisconsin state law prohibit this type of discrimination. Nevertheless, all employers, especially private employers in Indiana who are not currently bound by a state sexual orientation non-discrimination law, should ensure that all employee handbooks, non-discrimination policies, and job application forms explicitly state that the company will not discriminate based on sexual orientation, and should train management and human resources personnel on the same. Following the reasoning of Hively, employers should be cautious to guard against discrimination or harassment based not only on sexual orientation, but also sexual identity.

Properly Accommodating Pregnant Employees in Hazardous Workplaces

Contributed by Steven Jados, March 2, 2017

The settlement of a recent pregnancy discrimination lawsuit brought by the Equal Employment Opportunity Commission (EEOC) against RTG Furniture Corp., provides a valuable reminder to employers that even well-intentioned limitations placed on pregnant employees are likely to violate Title VII and, where applicable, state laws that prohibit pregnancy discrimination.

pregnant-employeeAccording to the EEOC’s allegations in the lawsuit, within days of being hired, a new employee informed RTG that she was pregnant, but that she had no work restrictions and could perform all aspects of the job. The job required the employee to use certain chemicals to repair furniture. The same day the employee disclosed her pregnancy, RTG management allegedly met with her and confirmed that she was pregnant. During that same meeting, a manager allegedly showed the employee the can of a chemical used in the workplace, and discussed the warning written on the can, which essentially stated that the contents could pose a danger to pregnant women and their unborn children. At the conclusion of that discussion, RTG allegedly terminated the new employee.

Now, it is important to remember that allegations in an EEOC lawsuit are, of course, not necessarily true—and the fact that the case settled, likewise, does not mean the EEOC’s allegations are the truth. Nevertheless, this case provides the useful instruction that employers generally cannot terminate pregnant employees or refuse to hire pregnant applicants, even if the job involves exposure to hazards that are particularly dangerous with respect to pregnancy.

This case also provides the opportunity to discuss the proper approach for employers concerned about exposing pregnant employees to potentially hazardous workplace conditions. Step one, of course, is: don’t terminate employees just because they are pregnant. Instead, employers concerned about exposing pregnant employees to harmful workplace conditions should have policies in place—in employee handbooks, for example—that inform employees, upon hire or even earlier, of the potential risks of the job. And if those risks are greater for pregnant employees, the policies should make clear that pregnant employees should feel free to request accommodations or otherwise bring any questions or concerns to human resources or other appropriate members of management.  Additionally, when an employee informs the company that she is pregnant, the company should take that opportunity to reiterate, in writing, the particular risks of the work environment, and remind the employee of her right to request a pregnancy-related accommodation.

If a pregnant employee wishes to continue doing her job, despite knowing and assuming whatever risks there may be, employers generally do not have the right to take any action that would adversely affect the employee’s job. Moreover, it is especially important for employers to recognize that in addition to federal law protections, there may also be state and local laws that provide additional protections or accommodation requirements for pregnant employees and applicants.

Bearing all of that in mind, employers concerned about exposing pregnant employees to workplace hazards or their obligations to accommodate a pregnant employee should consult with experienced labor and employment counsel to evaluate the hazards in the workplace, and ensure that all policies and notices to pregnant employees are drafted appropriately, and communicated properly.

New EEOC Lawsuits Are A Reminder To Ensure Anti-Discrimination Policies Apply To Sexual Orientation

Contributed by Steven Jados

On March 1, 2016, the EEOC announced that it had filed its first two sex discrimination lawsuits based on sexual orientation. One of these cases, filed in the federal district court for the Western District of Pennsylvania, is based on allegations that a gay male employee was subject to anti-gay epithets and other offensive comments about his sexuality and sex life that eventually drove the employee to resign. The other case, filed in the District of Maryland, Baltimore Division, is based on allegations that a lesbian employee’s supervisor made comments regarding the employee’s appearance and sexual orientation, and that she was fired shortly after complaining to her employer.

Discrimination 2Both of these lawsuits were brought under Title VII of the Civil Rights Act of 1964, on the theory that Title VII’s prohibition of sex discrimination encompasses sexual orientation. While the issue of whether Title VII can be enforced so broadly may still be subject to scrutiny and challenge, the EEOC has made it clear that it intends to use Title VII for sexual orientation claims—which means employers should expect to encounter more and more federal law claims based on sexual orientation discrimination and harassment.

With that in mind, we urge employers in states that do not have state-law anti-discrimination protections for sexual orientation to review and reassess their anti-discrimination policies and procedures—including all internal complaint mechanisms—to ensure they contain adequate protections against sexual orientation discrimination and harassment.  In this regard, it is critically important that all management and supervisory employees are trained to identify potential instances of discrimination and harassment based on sexual orientation, and to address employee complaints relating to sexual orientation.

Employers in states that already have sexual orientation discrimination protections should also take note of this EEOC litigation as it has the potential to increase employer exposure to legal liability. For example, in Illinois, the time limit for filing a state law-based sexual orientation discrimination charge is 180 days.  But because the deadline for filing an EEOC discrimination charge for alleged federal law violations is 300 days, the EEOC’s current enforcement strategy for sexual orientation claims extends the period during which employers could face such claims (albeit under federal law). Moreover, staying with the Illinois example, unlike the Illinois Human Rights Act (which contains the Illinois State law prohibition on sexual orientation discrimination), Title VII allows for punitive damages—which drastically increases the potential financial liability employers may face.

The bottom line is that employers nation-wide must update their policies, procedures, and day-to-day practices to conform with the EEOC’s current litigation and enforcement strategy as the failure to do so could have severe legal and financial consequences.

 

Title VII Update: No Adverse Action for Suspension With Pay

Contributed by Noah A. Frank

Recently, a Federal Appellate Court held that there was no adverse action under Title VII for an employee who was suspended with pay during an investigation.  Jones v. Se. Penn. Transp. Auth., — F.3d—, No. 14-3814 (3rd Cir. Aug. 12, 2015).

The underlying facts are straight forward and typical of an employment discrimination suit:

  • The supervisor suspected an employee was guilty of wage theft.
  • The supervisor suspended the employee with pay.
  • The employee informed the company’s EEO/Human Resources Department that she intended to file a complaint against the supervisor; at the investigation meeting the next week, the employee alleged for the first time that the supervisor sexually harassed and retaliated against her.
  • Separately and simultaneously, the time theft issue was investigated. The Company concluded that the employee engaged in misconduct. Her paid suspension was converted to an unpaid suspension, pending formal termination.
  • The employee filed charges of discrimination against the company and supervisor with the state human rights administrative agency.

The trial court granted the Company summary judgment as to Title VII discrimination, which the Appellate Court affirmed (note: the Appellate Court did not review, and declined to opine, whether paid suspension may amount to Title VII retaliation). The Appellate Court found that a paid suspension is not a refusal to hire or terminate, “by design” does not change compensation, and does not cause a “serious and tangible” alteration of employment terms, conditions, or privileges. Further, these terms and conditions of employment ordinarily include the possibility that an employer will be subject to disciplinary policies. Other workers identified by Employee as having engaged in somewhat similar misconduct were readily distinguished and not comparable.

Key Points for Employers 14815491_s

In an increasingly regulated, employee-friendly, and litigious business environment, employers must ensure that they protect the company from employee misconduct and subsequent claims by disgruntled workers and former workers. To do so, employers must:

  • Treat all similarly situated employees with consistency – if there is a change in policy/enforcement, document the basis and effective date. Ensure supervisors are trained on enforcement and employees have notice of the policies.
  • Permitting an employee to continue to work while suspected of gross misconduct may make later termination seem suspect to an administrative agency (including unemployment), and even a jury. Therefore, promptly remove an employee suspected of misconduct from the workplace. If the misconduct is merely suspected, suspend with pay pending investigation and determination.
  • Conduct and document an investigation into misconduct – secure and save evidence such as timesheets, cash register tickets, or CCTV video.
  • Adverse employment actions (suspension without pay, demotion, transfer, termination, and the like) should be based on good faith business reasoning.
  • And, of course, involve counsel if an investigation becomes risky, an employee claims discrimination or harassment, or it appears there may be litigation on the horizon.

Unanimous U.S. Supreme Court: EEOC Must Attempt to Conciliate Claims

Contributed by Noah A. Frank

Amid much anticipation, the Court unanimously held in Mach Mining, LLC v. EEOC that under Title VII, the EEOC must attempt to conciliate prior to filing suit against an employer. U.S. Sup. Ct., No. 13-1019 (Apr. 29, 2015). Title VII’s enforcement mechanism governs employment discrimination and Gavelretaliation claims related to race, color, religion, sex/pregnancy, national origin, age, and disability.  Under Title VII, the EEOC’s duty is to endeavor to eliminate discrimination by informal methods of conference, conciliation and persuasion and to insist upon legal compliance; the employer’s obligation is to refrain from illegal conduct.

Conciliation involves communication and exchange of information between the parties.  The EEOC must:

  • Inform the employer about the specific allegation(s);
  • Describe what the employer has allegedly done;
  • Describe which employee(s) or class allegedly suffered;
  • Engage in some form of discussion with the employer; and
  • Provide the employer an opportunity to cure the allegedly discriminatory practice.

However, the requirement that the EEOC conciliate is but a minor victory for employers as the required effort is limited to the employer being afforded a chance to (i) discuss and (ii) rectify the specified discriminatory practice.    Further, the proper remedy for the EEOC failing to take those specific conciliation steps prior to bringing a cause of action is for the court to order the EEOC to undertake the mandated efforts to obtain voluntary compliance.

What this means for businesses:

An ounce of prevention is worth years and thousands (or more) of dollars of cure.  Companies should proactively ensure that their written employment policies and implemented practices comply with federal and state law.

If a claim arises or a charge of discrimination is filed, employers should engage seasoned employment counsel who regularly work with the EEOC and understand the ramifications of this decision to help investigate and respond to the charge.

And, in those cases where the EEOC finds “reasonable cause” of a violation, counsel should make certain to engage the EEOC in good faith discussion and conciliation efforts along the lines outlined by the Supreme Court with an eye to resolving the claim, if at all possible.

 

The Seventh Circuit Blessed the EEOC’s “Sue First, Negotiate Later” Approach—But Will the Supreme Court Do the Same?

Contributed by Steven Jados

In what was disappointing news to employers in Illinois, Wisconsin, and Indiana, the Seventh Circuit Court of Appeals ruled in December 2013 that the Equal Employment Opportunity Commission’s (“EEOC”) failure to engage in good-faith conciliation efforts with an employer prior to filing a lawsuit alleging the employer engaged in unlawful discrimination or harassment is not a viable affirmative defense requiring the dismissal of such a lawsuit.

According to the employer’s petition to the Supreme Court, the Mach Mining case began with a single EEOC charge from one individual alleging sex discrimination.  In the EEOC’s hands, that charge grew to a claim of discrimination affecting “a class of female applicants.”  Exactly how the individual charge grew to a “class” claim is a mystery.  Prior to filing suit, the EEOC gave Mach Mining no specifics in terms of the evidence underlying the class allegations, the identities of the purported class members (other than the charging party, herself), or even the actual number of purported class members.  Employers that have never been sued by the EEOC should realize that the EEOC’s conduct in Mach Mining is not unusual.

Title VII expressly requires the EEOC, prior to filing a lawsuit against a targeted employer, to engage in conciliation efforts with the employer.  According to Mach Mining, the EEOC’s conciliation efforts included, in total, one vague verbal demand and a subsequent notice that conciliation had failed and further discussions would be futile.

Understandably, Mach Mining’s position is that the EEOC ignored its statutory conciliation duty, and the employer asked the court to dismiss the EEOC’s lawsuit for that reason. The Seventh Circuit ruled against Mach Mining and, in deciding that the failure to conciliate cannot be the basis for dismissing an EEOC-filed lawsuit, the court acknowledged its departure from decisions by other federal circuits that had addressed the issue.

Mach Mining asked the Supreme Court to review the decision and—interestingly—the EEOC joined Mach Mining’s request so that the Court could resolve the conflicts among the nation’s lower courts, and thereby allow the EEOC to implement a uniform, nationwide conciliation policy.

As frequent readers of the Labor & Employment Law Update know, it is impossible to predict how the Supreme Court will rule.  It is also impossible to predict exactly when the ruling will come, and it is possible that the ruling may be a full year away.

In the meantime, and regardless of the ultimate disposition of this lawsuit, employers that have received a reasonable cause determination from the EEOC (or a charge filed by the Commissioner of the EEOC, as opposed to an aggrieved individual) should press the EEOC, through documented, written correspondence, for the specific facts at issue in the EEOC’s claims—including facts that will allow the employer to identify potential class members and calculate the employer’s potential exposure to damages.  Until the Supreme Court rules, employers nationwide will be waiting and watching—hoping for a decision that puts reasonable restrictions on the EEOC’s litigation tactics.