Category: Discrimination

2019-2020 Supreme Court Labor and Employment Cases

Published by Brett Holubeck on August 5, 2020

Image of a gavel to represent the Supreme Court's labor and employment decision from this term. — Photo by Tingey Injury Law Firm on Unsplash

This is one of the most impactful years that the Supreme Court has had on labor and employment law. The Court took on a number of important and controversial issues including gender identity and sexual orientation discrimination, the DACA program, the standard that must be met for proving age discrimination under the Age Discrimination in Employment Act and race discrimination under Section 1981, whether the ministerial exception applies to teachers at religious schools, and whether the government properly exempted religious institutions from the contraception mandate under the Affordable Health Care Act (Obamacare). The impacts and the follow-up cases clarifying the decisions from this term will continue to be felt for years, especially in the context of issues involving sexual orientation and gender identity discrimination.

Bostock v. Clayton County (Consolidated with Altitude Express v. Zarda, and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission)

This was by far the biggest case to come out of the Supreme Court in employment law in years. The Court held that Title VII of the Civil Rights Act of 1964 prohibits discrimination against individuals based on their gender identity (transgender discrimination) and their sexual orientation. Essentially, employers cannot discriminate against employees on the basis of their sex, which includes gender identity and sexual orientation. Employers should update their handbooks to ensure that discrimination against individuals on the basis of sexual orientation and gender identity is prohibited. Employers should also retrain managers to ensure that employees do not suffer these types of prohibited discrimination. As a reminder, a number of states have their own laws on sexual orientation and gender identity discrimination. This ruling will not affect those state laws. Anyone with questions should first check the laws of their state to determine the best approach to resolving sexual orientation and gender identity discrimination issues.

Justice Alito’s dissent outlined the most controversial issues that will be decided by future cases (these are described below in each subheading). The biggest questions that remain from the case involve the interaction between the law’s prohibition against gender identity and sexual orientation discrimination and its protection of religious liberty.

“[B]athrooms, locker rooms, [and other things] of [that] kind”

When will an employee that is transitioning be permitted (or required) to use the locker room or bathroom associated with their gender identity? How does this right interact with the rights of other employees that may not feel comfortable sharing a bathroom or a locker room with an employee who has not had gender reassignment surgery? Courts will help resolve this issue. Many states have their own statutes (and subsequent cases) clarifying these protections. It remains to be seen how the rights will be protected/interpreted under Title VII, but one should expect the law to settle along similar lines as those in the various states (i.e. it is likely that employees will have the right to use the locker room or bathroom associated with their gender identity at some point in the future).

Women’s Sports

Whether transgender athletes can or are required to participate in the team that is in line with their gender identity. This is not an employment issue (except for paid female athletes), but it is a question that will need to be resolved based on the ruling. Many states are examining this question for sports including most recently Idaho. It is an issue that will likely continue to be litigated.

Healthcare

There are likely to be lawsuits by transgender employees that have employer sponsored health plans that do not cover the cost of gender reassignment surgery. Many of these plans will likely start to cover the surgery due to social pressure anyway, but it is an issue that still needs to be resolved.

Freedom of Speech

Employees don’t have “freedom of speech” in the workplace. Companies can fire employees for what they say as long as the firing would not be for an unlawful reason (speech that is protected under the National Labor Relations Act, whistleblowing protections of various statutes, or protected by another law). For example, a company could and should fire someone for making a death threat against another employee. A company cannot fire someone because they say that the company needs a union.

The dissent in the Bostock case stated that “the Court’s decision may also pressure employers to suppress any statements by employees expressing disapproval of same-sex relationships and sex reassignment procedures. Employers are already imposing such restrictions voluntarily, and after today’s decisions employers will fear that allowing employees to express their religious views on these subjects may give rise to Title VII harassment claims.” The interaction of the decision with issues of religion and the protections that individuals have to practice their religion will undoubtedly be the most interesting.

Babb v. Wilkie

The Supreme Court ruled that under the ADEA (Age Discrimination in Employment Act) a plaintiff only needs to prove that age is a motivating factor in an employment decision for there to be a violation of the ADEA. However, but-for causation (but for their age the employee would not have suffered the adverse employment action) is important to determining the appropriate remedy for a violation of the ADEA. For example, a plaintiff cannot obtain some forms of relief, like hiring, reinstatement, backpay, and compensatory damages without a showing of but for causation. Plaintiffs could get injunctive or other forward-looking relief if they cannot show that age was a but-for cause of the employment decision but merely a motivating factor.

The decision will make it easier for plaintiffs to obtain relief under the ADEA as some forms of relief may be available even if they cannot meet the but-for causation standard.

Comcast Corp. v. National Association of African American-Owned Media

The Supreme Court unanimously ruled that under 42 U.S.C. § 1981 a plaintiff must show that race was the but-for cause of the plaintiff’s injury rather than a mere motivating factor (one factor among others that lead to the adverse employment action).

The case will make it easier for companies to defend against Section1981 claims, but employees that cannot meet the but for causation standard may be able to meet the motivating factor standard under Title VII and choose to file a charge with the EEOC or their respective state agency.

Department of Homeland Security v. Regents of the University of California

While this is not strictly an employment law case, it will have a big impact on employment.

As I said in a prior post, “DACA (the Deferred Action for Childhood Arrivals) protects certain people that were brought to the US as children from deportation and allows them to get a job or attend school. They cannot obtain permanent residency through the program but may obtain work authorization and continue to reside in the country. There are currently nearly 700,000 people that are in the DACA program.”

In this case, the Supreme Court ruled that the Trump administration’s order to undo the Deferred Action for Childhood Arrivals was arbitrary and capricious (the administration did not conduct a thorough review of all the relevant factors that it should have taken into account such as any “legitimate reliance” that individuals had on the DACA memo, whether the government could have eliminated eligibility while continuing forbearance, and giving consideration to other policy alternatives). Instead, the Trump administration relied only on the illegality of providing the benefit by the prior administration as its reason for ending it.

Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania

This is one of the three major religious liberty cases that were before the Supreme Court this year. It may provide some insight into how the Court will view religious liberty issues in the future within an employment context, especially how they relate to sexual orientation and gender identity discrimination.

In a 7-2 decision, the Court concluded that:

As we have explained, RFRA [(Religious Freedom Restoration Act)] “provide[s] very broad protection for religious liberty.” Hobby Lobby, 573 U. S., at 693. In RFRA’s congressional findings, Congress stated that “governments should not substantially burden religious exercise,” a right described by RFRA as “unalienable.” 42 U. S. C. §§2000bb(a)(1), (3). To protect this right, Congress provided that the “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability” unless “it demonstrates that application of the burden . . . is in furtherance of a compelling governmental interest; and . . . is the least restrictive means of furthering that compelling governmental interest.” §§2000bb–1(a)–(b). Placing Congress’ intent beyond dispute, RFRA specifies that it “applies to all Federal law, and the implementation of that law, whether statutory or otherwise.” §2000bb–3(a). RFRA also permits Congress to exclude statutes from RFRA’s protections. §2000bb–3(b).

The essence of the decision is that the government acted lawfully to expand the contraception exemption for employers like the Little Sisters of the Poor. Justices Alito and Gorsuch wished to go further and rule that the RFRA required the government to do so, but that issue was not necessarily ripe at the time. Of course, that will likely be one of the major cases before the Court in the future.

Our Lady of Guadalupe School v. Morrissey-Berru

In this case, the Supreme Court applied the ministerial exception to teachers at religious schools. The ministerial exception bars ministers from suing churches, synagogues, mosques, and religious institutions for employment discrimination. The Court, in a 7-2 decision, found that the school and religious institution meet the exception because the teachers are responsible for instructing the students in their faith. Whether the exception applies depends heavily on the beliefs of the particular faith and the employee’s role in teaching or developing it.

As a reminder, the ministerial exception grew out of the idea that religious institutions should be able to remove ministers without interference from the government. This makes sense for many reasons. For example, it would be weird, and unjust for a Lutheran church to be sued for discrimination because the pastor became a Buddhist and the church terminated his contract. The minister of a Lutheran church or the minister (or equivalent position) of any faith should obviously believe the teachings of that particular faith to hold that position.

Other issues and forms of discrimination are a little less clear (such as disability issues) but the Supreme Court determined that the employees subject to the ministerial exception do not have that protection. The reach of the exception will generally be limited as it only applies to people that teach the faith (i.e. are ministers). It is not going to be broadened to apply to those that work at religious institutions that are not tasked with ministerial duties (teaching the faith) such as janitors, administrators, and even those that work at many nonprofits that are owned by religious institutions (such as universities and hospitals).

Conclusion

This was a huge year for labor and employment decisions from the Supreme Court. The Court altered the impact of Title VII by finding that it protects individuals from discrimination based on their sexual orientation and gender identity. It also decided three cases regarding protections for religious beliefs (it found for the religious institutions in all three cases) including one case where the Court found that states cannot bar taxpayer aid to parochial and other religious run schools if they provide aid to nonreligious schools (essentially the Court found that states cannot discriminate against schools based on their religion). It seems inevitable that there will be a clash between religious protections and issues involving gender identity and sexual orientation. Courts will need to determine how these rights interact.

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

Manager’s Guide to Discrimination in the Workplace

Published by Brett Holubeck on April 27, 2020

Image of umbrellas at the beach to represent diversity in the workplace and demonstrate that diversity is beneficial to an — Photo by XiaoXiao Sun on Unsplash

Discrimination in the workplace is not something that ended in the 1960’s with the passing of the civil rights act and desegregation of public schools. It continues today.

A recent Glassdoor survey found that 61 percent of U.S. employees “have witnessed or experienced discrimination based on age, race, gender or LGBTQ identity in the workplace.”

In particular the survey found that:

Forty-two percent of working adults in the US have either been a victim of racism or have witnessed racism at work.
Around 45 percent of workers in the US have either experienced or witnessed ageism at work, which makes it the most common form of discrimination in the workplace

Most people will eventually witness some form of discrimination while they are at work. Sometimes people will shrug off the discrimination or think that it is no big deal, but should they have to? Discrimination in the workplace is something that no one should have to tolerate and one that no business should want to occur.

Basically, every company needs to be aware of the issues surrounding discrimination in the workplace so they can act. You do not want workers (or the business itself) to discriminate against people. The average cost of an employment lawsuit can cost tens of thousands of dollars. One survey by Hiscox found that the average cost of defense and settlement was $160,000. Companies need to deal with employees, managers, and even clients that discriminate against workers. Businesses that fail to do so will subject themselves to lawsuits, have less productive employees, poor morale, and a higher turnover.

What is Discrimination?

Discrimination comes in many forms. Title VII protects employees from discrimination based on a person’s sex, race, color, national origin and religion. The ADEA protects employees from discrimination based on age (at least if the person is over 40) The Americans with Disabilities Act Amendments Act (ADAAA) protects individuals with disabilities from discrimination. You can read more about accommodating individuals with disabilities here. The Equal Pay Act prohibits paying employees doing the same work differently unless certain conditions are met.

Stereotypes, jokes about someone’s racial characteristics, concerns that someone cannot do something or would not want a promotion because they are pregnant, and the idea that disabled people are somehow less able to complete a task have no place in the workplace.

For example, most people think that young people are best apt to start a business or run a company based on the companies that we frequently see in the news that were started by young founders (Facebook, Apple, and a number of other tech companies). These are not typical companies. One study found that “a 50-year-old founder is 1.8 times more likely to achieve upper-tail growth than a 30-year-old founder.” Many older founders benefit from their experience in founding a company, experience that younger people have not been able to achieve yet. Everyone’s unique experience brings some benefit to the workplace.

Creating a Culture that Does not Allow Discrimination

The most important thing that companies and managers can do to correct discrimination is to take an active role in preventing it in the workplace.

First, companies need to educate their managers, supervisors, and other leaders about discrimination issues and gather information about it. Supervisors need to understand the laws on discrimination and the areas where discrimination is most likely to occur so that they can take an active role in preventing it. Moreover, companies should gather data about terminations, promotions, and pay to ensure that they are not inadvertently discriminating against any members of any protected category.

Managers need to understand that discrimination in the workplace is not something that will ever be tolerated and they need to act quickly when they witness it, or someone reports it to them. This is the way that you fight discrimination or any bad behavior in the workplace. You have to act! You have to call things out! You cannot let things slide! Managers need to be acutely aware that a joke or a comment is a lot more than that to the person on the receiving end.

Culture is not something that you learn at a one-hour seminar where the speaker uses a ton of buzzwords and everyone leaves excited. It takes an incredible amount of hard work and leadership at the top to create an organization with the right culture. It is something that is built day by day and person by person in the organization. A bad leader can create a culture of discrimination very easily.

In the context of preventing discrimination, there are a few different types of bad leaders that can destroy the culture pretty quickly and cause discrimination issues. Any leader that actively participates in making inappropriate jokes in the office will cause problems. A boss that ignores complaints and let’s things go will create a welcome environment for discrimination.

To be effective, a manager or supervisor needs to set the tone in the workplace. In a lot of ways, it is like parenting. If you tolerate behavior that is inappropriate, then people will think it is permissible and will continue to do it. Managers need to be willing to step in and stop any instances of discrimination in the workplace.

To do this, managers also need to set the tone about appropriate behavior and make employees aware that they can report issues to the managers. Managers can do this by having short meetings at the beginning or end of a shift reviewing procedures and practices at the company. For example, managers refresh employees’ minds about the appropriate ways to report a complaint, to request a disability accommodation, and perform other actions that will reduce the possibility of discrimination.

Acting to Reduce Hiring Biases

The only way to reduce bias in hiring and terminations is to examine your data.

In general, you need to know what the makeup of your workforce is compared to the workforce available in your area if possible and your applicant pool. If you are not hiring enough of a certain group or never hire any qualified applicants of a certain group, then it can start to look like you are either purposefully not hiring individuals with a certain protected characteristic or there is a disparate impact on certain individuals in the hiring process.

If you do have a disparate impact in hiring, then you need to consider where you are hiring individuals. For example, if you are a tech company and only hire on college campuses, then there is a good chance that you are discriminating against older individuals through your hiring methods. Older people tend not to be college students.

Another common issue that some worksites have is paying women different than men in the same job and that they are doing similar work. The Equal Pay Act states that you cannot pay men and women differently for doing the same job. As noted in the Act, you can have different pay for people in the same job doing the same work when the salary is determined by:

(i) a seniority system;
- (ii) a merit system;
- (iii) a system which measures earnings by quantity or quality of production; or
- (iv) a differential based on any other factor other than sex

One final point, a person’s ability to negotiate a better salary is not a factor other than sex. If you pay people differently because they negotiated differently, then you may be subject to a discrimination claim.

You can read more about correcting disparities among protected groups in my article on preparing an affirmative action plan. It only applies to federal contractors, but it has considerations for businesses to help address the issue.

How to Reduce Bias in Termination and Discipline

To eliminate discrimination in the discipline and termination process you can review my article about the questions that you should ask when considering whether to discipline someone, what level of discipline to apply, and whether you should terminate someone.

For purposes of determining whether the action was discriminatory the most important questions are:

Was progressive discipline applied?
Is there any written documentation?
Does this violation warrant termination or the level of discipline applied?
Have all other employees who violated the rule or policy been similarly disciplined or terminated?
Are there extenuating circumstances that would mitigate the level of discipline or termination

Essentially, the questions are focused on whether you have applied your policies consistently and how you have treated individuals in the past. All companies should have a progressive discipline policy where they are consistent in treating violations of company policy the same. Obviously, the most important question for purposes of determining whether there has been discrimination is whether other employees were treated the same in the past. You need to treat everyone the same when disciplining and terminating employees.

It is that simple to say, but it is more difficult in practice. You need to review circumstances and past practices carefully to ensure that you are treating people fairly. Sometimes, there will be extenuating circumstances and you may treat people differently. You need to document why you treated them differently or made an exception to your rule when you discipline employees. A haphazard approach is likely to lead to liability and lawsuits.

How to Respond to an Allegation

As I have said before, all companies need to have a complaint procedure and train your supervisor on those procedures. I also wrote about conducting a workplace investigation before and much of that information is relevant to an allegation of discrimination. The most important part of that article in this context is to keep good records on past behavior; respond in a timely manner to a complaint; gather the information quickly; and take a systematic approach to wrapping up the investigation by examining the evidence, your past practices, and assessing the witnesses’ credibility carefully.

I do have a couple of additional items to add to those articles that are specific to these kind of discrimination claims.

You need to understand that these are sensitive issues for the people that are discussing them. A claim that someone was discriminated against on the basis of their sex or was on the receiving end of jokes about their sex should have investigators or people that they can report the claim to that are both women and men. It can be very uncomfortable to discuss these issues. A woman may not feel as comfortable about reporting discrimination to a man and vice versa. There needs to be other channels for them to report to that take this kind of factor into consideration.

As I said above, a claim that there has been disparate treatment for individuals with a certain protected characteristic may require the company to run a statistical analysis to determine whether the actions of the company in hiring individuals discriminated against a certain group. The best way to fight these lawsuits is to examine your data regularly and adjust your hiring practices if it causes a disparate impact on a protected group.

Conclusion

You can reduce discrimination in the workplace. It takes an effort of all team members, supervisors, and upper management to do so. Managers are in a unique place to reduce discrimination because they witness employee behavior. A good manager knows how to respond to employee problems and quickly stop any inappropriate behavior which helps build a positive and respectful culture over the long term.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

How to Respond to an EEOC Charge

Published by Brett Holubeck on February 21, 2019

What is the EEOC?

The Equal Employment Opportunity Commission (EEOC) is the government agency that enforces several laws relating to discrimination including those that protect employees from discrimination based on their race, color, religion, sex, national origin, age (40 and older), disability, and genetic information. It also protects employees from retaliation because they filed an EEOC charge, complained of discrimination, or testified or participated in an investigation or lawsuit involving an employment discrimination charge. Under the Federal law employers with 15 or more employees must not discriminate against individuals based on any of the above characteristics. Many states have employee thresholds that are less than 15 employees.

If a company has an EEOC charge filed against them, then it needs to be prepared to respond. Obviously, the best practice is to avoid circumstances that could lead to a discrimination lawsuit.

Creating a Record

The first goal of any employer should be to avoid an EEOC charge. It is not possible to ensure that there is no risk of lawsuit when you fire or discipline an employee. Adverse employment decisions can be gray.

However, there are a number of things that can be done to reduce the risk of a lawsuit. Here is an earlier post that discusses many of the items that should be considered. To summarize, any time you discipline an employee (and ultimately terminate them) you need to consider the following to reduce the chance of an employee filing a discrimination charge against a company:

Was the employee aware of the company policy that they violated?
How many times has the employee violated the policy and other policies?
Did the company apply the progressive discipline policy?
Has the company documented the violation and prior violations? Was the corrective action documented?
What level of discipline does the employer’s policy require?
What discipline did other employees that have violated the policy receive?
Is there any reason to reduce the punishment? Are there mitigating circumstances?

Whenever a company disciplines an employee it needs to create a record of the discipline. Every company should have a discipline form that tells employees what rule they violated and any corrective action that will be taken. Employers should have employees sign and date the form. If they refuse to sign, then the HR manager or a supervisor can write on the form that “the employee refuses to sign,” and date and sign next to this statement. In this way, every employer can control the record for any actions that it took in response to employee behavior.

Unfortunately, this step will only prevent or limit claims related to actions that the company formally took. It does nothing for discrimination claims that are based on the actions of a supervisor or boss that are acting unprofessionally by joining in or encouraging misbehavior or the result of the actions of fellow employees. These situations are especially common in cases of sexual harassment. You can review how to limit sexual harassment in one of my prior posts.

When You Receive the EEOC Charge

First you need to review the charge to determine what is alleged. You should review the information carefully to determine:

What law was violated?
Who is alleged to have been involved?
When did the alleged action occur? (Note: some actions may be barred by the statute of limitations.)
Are any documents mentioned?
Who, if anyone, committed the alleged unlawful conduct?
Does the company have any record of the unlawful conduct?
If so, did the company take any action to resolve the conduct?

Preserve any necessary records that are related to the allegations. Companies should also quickly alert the team that will be responsible for responding to the allegations including outside counsel, inside counsel, HR, and/or management.

Start Your Investigation and Response

Investigations need to take place quickly so that you can respond to the EEOC in a timely manner. The EEOC will also start its investigation after it issues the charge. The EEOC will generally begin the investigation by requesting a number of documents from the company including the employee’s personnel file, any relevant rules, and the employee handbook. The EEOC will also want to speak with witnesses and possibly come onsite. All of these witnesses, management and non-management, should be prepared to speak with the EEOC. Attorneys for the company may need to meet with these individuals to ensure they are ready. The EEOC will also request that the employer provide a written statement with its position on the allegations.

The EEOC has done a great job outlining how to draft a statement of position:

• Address each alleged discriminatory act and your position regarding it and provide copies of documents supporting your position and/or version of events.
• Provide a description of the organization; include the organization’s legal name and address, the name, address, title, telephone number and email address of the person responsible for responding to the charge, the primary nature of the business, and the number of employees. A staffing or organizational chart is also useful in helping to focus the investigation.
• Provide any applicable practices, policies or procedures applicable to the allegations in the charge.
• Identify any individuals other than the Charging Party who have been similarly affected by these practices, policies or procedures; describe the circumstances in which the practices, policies, or procedures have been applied.
• Explain why individuals who were in a similar situation to the Charging Party were not similarly affected.
• Identify official(s) who made decisions or took action relating to the matter(s) raised in the charge.
• Be specific about date(s), action(s) and location(s) applicable to this case.
• Provide internal investigations of the alleged incidents or grievance hearing reports.
• Inform EEOC if the matter has been resolved or can be resolved; if it can be resolved, please indicate your proposal for resolution.

The statement of position is an important step in responding to the allegations. A good statement of position can make it easier to settle a case or challenge the allegations after the EEOC issues a determination.

Consider Whether to Use Mediation

Companies can settle claims that the EEOC investigates at many stages in the process and can do it before the EEOC gets involved if the claim is settled before the individual files an EEOC charge. In fact, the EEOC has its own mediation/settlement process because it strongly encourages settlement.

The EEOC has a great explanation of why companies should consider mediation:

• It is free.
• It is confidential. Information disclosed in mediation will not be shared with anyone, including EEOC investigators and lawyers, and will not be used against you by EEOC.
• It can save you time and money. Mediation usually occurs early in the charge process, and many mediations are completed in one meeting. If successful, the charge is resolved and you avoid potentially lengthy, uncertain and expensive litigation.
• It allows you to design your own solution. You and the employee determine how to resolve the issue in a mutually acceptable way.

Mediation is often a cheaper option for an employer, but companies must be prepared to accept the consequences of settlement/mediation.

Conclusion

No one wants to face an EEOC charge of discrimination from an employee. These charges often go public and lead to headlines like this: “Absolut Care Denies Pregnant Workers Leave”. The best approach for any company is to have a policy to handle complaints of discrimination and unfair treatment, document any adverse employment action and corrective actions, and train supervisors and staff on issues relating to discrimination.

The information provided is my own and does not reflect the opinion of my firm or anyone else.