Have You Audited Your Pay Practices Lately?

By Kathleen Jennings (kjj@wimlaw.com)

A Maryland county learned the hard way that attacking wage discrimination based on sex, race, and other protected characteristics is an EEOC enforcement priority. Last week, Prince George’s County, Maryland entered into a Consent Decree with the EEOC and agreed to pay $145,402 in lost wages, damages, and costs to settle an EEOC lawsuit for a female engineer who was paid thousands less per year than male employees doing substantially the same job. (EEOC v. Prince George’s Cnty., D. Md., No. 15-2942, consent decree entered 6/1/17). In addition, the County agreed to hire a consultant to ensure future wage parity between female and male employees who perform substantially similar work in the county’s Department of Environment, provide equal employment opportunity training for its managers and supervisors, file periodic reports with the EEOC, and post workplace notices about the settlement. The county also increased the female engineer’s annual salary from $82,294 to $107,017 to align her pay with her male counterparts.

The EEOC’s lawsuit alleged, among other things, that the County paid the female engineer less than male colleagues even though she did equal, and in some cases, more complex and superior work. In March, the Court ruled that the EEOC proved the county was liable under the Equal Pay Act by paying the female engineer a lower salary than male engineers performing substantially equal work. The EEOC and the county settled to avoid “the time and expense of continued litigation,” according to the Consent Decree.

Pro Tip: Have you audited your pay practices lately? Employers should regularly review their pay practices to make sure that they are not engaging in discrimination. If any differentials do exist, employers should make sure that they are based on legitimate and nondiscriminatory factors and supported by written documentation, and if they are not, they should correct them promptly. By doing so, employers may dramatically reduce the chance that they will be faced with a claim for wage discrimination.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

Does Title VII cover discrimination based on sexual orientation? The Seventh Circuit says yes, moving the issue one step closer to the U.S. Supreme Court.

By Kathleen Jennings (kjj@wimlaw.com)

This week, the full U.S. Court of Appeals for the Seventh Circuit (which covers Illinois, Indiana, and Wisconsin) ruled that Title VII’s ban on sex discrimination precludes employers from discriminating against lesbian and gay workers based on their sexual orientation. (Hively v. Ivy Tech Community, Coll. of Ind., 7th Cir., No. 15-1720, en banc decision, 4/4/17). With the 8-3 ruling, the Seventh Circuit becomes the only federal appeals court to hold Title VII covers sexual orientation bias.

Writing for the Seventh Circuit, Chief Judge Diane P. Wood said the court’s ruling “must be understood against the backdrop” of Supreme Court decisions addressing sexual orientation more broadly, as well as its employment discrimination cases. Those rulings, including the 2015 decision recognizing a constitutional right to same-sex marriage, reflect societal changes about the meaning of sex that can’t be ignored, the Court said. To that end, the Court stated 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.”

Three-judge panels in the Eleventh and Second Circuits both recently held Title VII does not prohibit sexual orientation bias. The Seventh Circuit case holding otherwise creates a split in the Circuits, which makes it more likely that the U.S. Supreme Court will be called upon to resolve the conflict. However, the employer in the Seventh Circuit Hively case has said that it will not appeal that decision, so that decision will not be the one that the Supreme Court considers.

In the Eleventh Circuit case, which we discussed in a previous post, the plaintiff, Tameka Evans, has requested reconsideration by the entire Eleventh Circuit. If the entire Eleventh Circuit decides to reconsider the decision of the 3-judge panel, it is likely that Ms. Evans’ attorneys will use the Seventh Circuit opinion in the Hively case to try to persuade the Eleventh Circuit to rule in their favor. It is interesting to note that the Seventh Circuit utilized the gender non-conformity theory that Judge Rosenbaum also noted in her dissent in the Evans case. Under that theory, discrimination based on a person’s failure to conform to traditional gender stereotypes is a form of sex discrimination.

We will continue to monitor the developments in this area.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

Discrimination Based on Sexual Orientation and Discrimination Based on Gender Stereotypes–Is There a Difference? The 11th Circuit Says Yes, For Now.

By Kathleen Jennings (kjj@wimlaw.com)

Last week, the 11th Circuit Court of Appeals (which covers the states of Georgia, Florida, and Alabama) issued a decision regarding a claim of discrimination by a woman who worked as a security guard Georgia Regional Hospital. (Evans v. Ga. Reg’l Hosp., 11th Cir., No. 15-15234, 3/10/17). The plaintiff, Tameka Evans, alleged that she was discriminated against on the basis of her sex and targeted for termination because of her sexual orientation. The Hospital moved to dismiss the Complaint on the ground that discrimination on the basis of sexual orientation is not actionable under Title VII. The majority of the three judge panel of the 11th Circuit agreed, and made a distinction between discrimination based on sexual orientation and discrimination based on gender stereotyping. This distinction is critical because a 1989 U.S. Supreme Court decision held that discrimination based on gender stereotypes is a form of sex discrimination. In that case, the discrimination took the form of company managers telling a female financial professional that she did not act or dress feminine enough. In contrast, Title VII does not explicitly protect sexual orientation, and the majority opined that it is for Congress, not the courts, to amend Title VII to add any additional protected categories.

The dissent, however, argued strongly that any lesbian worker who alleges an employer discriminated because of her sexual orientation essentially is claiming the employer discriminated because she’s attracted to women and therefore doesn’t conform to gender stereotype

It should be noted that Ms. Evans brought the initial Complaint herself without an attorney. The Complaint was not very artfully drafted, and the court has given her an opportunity to amend it. Further, she has since had counsel appointed to represent her, and many observers believe that this case will be reviewed by the full 11th Circuit.

Ultimately, the issue of whether discrimination based on sexual orientation is actionable under Title VII may be decided by the US Supreme Court. We will continue to monitor this case.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

Does Your Company Have a Social Media Policy? A Cautionary Tale.

By Kathleen Jennings (kjj@wimlaw.com)

Harriet the Human Resources Manager is sitting at her desk at Acme Corporation on Monday morning enjoying a cup of coffee when the email arrives from Will E. Kyote. Harriet is aware that Will is a frequent purchaser of Acme’s products. Harriet figures his latest order was forwarded to her by mistake.

This email, however, is not an order. In it, Will states as follows: “I have attached a screenshot of a comment by your employee, Rhoda Runner, on a social media page of a local news station. I clicked on her picture, and the link showed her to be a supervisor at your company. I am disgusted and I will no longer do business with Acme.”

The screenshot shows a news story about immigration, and shows several comments, including one by Rhoda that states: “I am so tired of hearing the Mexicans speak Spanish at work all day. If they can’t speak English, they need to go back to where they came from!” Will has also sent a screenshot of Rhoda’s Facebook page which shows that she identifies herself as a supervisor at Acme.

To make Harriet’s morning worse, she sees that Acme’s President was copied on the email. Sure enough, the President calls Harriet and tells her, “We cannot allow our employees to represent our company with these kinds of statements. It is disrespectful to our employees. It is disrespectful to our customers. We have lost one customer already. Make sure it does not happen again.”

Harriet calls Rhoda to her office. Rhoda also invites Rhoda’s supervisor to the meeting as a witness. Harriet asks Rhoda if she posted the statement on a social media page. Rhoda admits that she did, adding, “I just got caught up in things. I probably should not have said it.” Harriett asks Rhoda if the difference in language prevents the Spanish-speaking workers from doing their jobs. Rhoda admits that it does not because there are several bilingual line leaders and supervisors available to translate.

Harriet shows Rhoda Acme’s Social Media policy, as well as a copy of Rhoda’s signed acknowledgement of receipt of the policy. “I’m sorry, Rhoda, but your statement is a clear violation of this policy. As a supervisor, you represent the company. Acme does not tolerate these kinds of statements. You are suspended without pay for 1 week, you are being demoted to a non-supervisory position and your pay will be reduced accordingly, and you will be required to attend diversity training. Any further incidents of this type will result in your immediate termination.”

Rhoda is stunned. “How can you do this; I didn’t say this at work?! I have a right to express my opinions on social media.”

Harriet responds: “Rhoda, the Company’s Social Media Policy clearly states that

All of Company’s policies, as well as the terms of any agreement between you and Company, apply to communications (“posts”) made on social media. This includes for example, policies regarding discrimination, sexual harassment, non-violence, confidentiality, use of Company’s electronic systems and use of company time, as well as contractual provisions regarding disclosure of confidential information and restricting competitive activities. Sexual harassment, confidential information and other terms defined by other policies and agreements between you and Company have the same meaning as in those policies and agreements. ”

“Rhoda, while you may have the ability to express your opinion publicly, when those opinions violate our discrimination or harassment policies, we have to take action. We do not tolerate those kinds of statements by any employee, and especially not by a supervisor. That kind of statement also can undermine your effectiveness as a supervisor of a diverse workforce.”

Thereafter, Rhoda sent an email to all company employees reminding them of Acme’s Social Media Policy as well as its EEO Policy and its Policy Against Harassment. She also sent an email to Will thanking him for his email and assuring him that Rhoda’s words did not reflect the views of Acme. Will responded shortly thereafter, thanking her for a prompt response to his concern.

The moral of the story: Can a private company like Acme really take action against an employee for making a statement on social media? Yes—a private company has a right—and a duty– to manage how its employees represent themselves and communicate on social media. The dissemination of a written social media policy puts employees on notice of the company’s expectations. A private employer can take action against an employee for making statements on social media that are contrary to the Company’s policies and values. The statements of supervisors and/or managers can be imputed to the Company and can be used against the Company in legal proceedings, so it is especially important for those persons to understand the parameters of the Company’s social media policy and the consequences of speech the Company deems improper or harmful.

If your company needs a Social Media policy, or wishes to update an existing policy, please contact one of the attorneys at Wimberly, Lawson, Steckel, Schneider & Stine, P.C. for assistance.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

No, the ADA Does Not Require an Employer to Allow an Employee to Wear Flip Flops to Work

By Kathleen Jennings (kjj@wimlaw.com)

The Americans With Disabilities Act (ADA) allows a person with a disability to request a reasonable accommodation from his/her employer that will allow him/her to perform his/her job. However, the ADA does not require an employer to give an employee the exact accommodation that the employee wants; rather, the ADA requires the employee and employer to work through an interactive process to reach a reasonable accommodation that meets the needs of both parties.

What happens when an employee is unreasonable? An example comes to us from beautiful Sedona, Arizona. (Steely-Judice v. Taylor Fine Art, LLC, No. CV-14-08238-PCT-GMS, D. Ariz. Jan. 09, 2017). Ms. Steely-Judice worked at the Taylor Gallery, an art gallery in Sedona, Arizona, as a sales consultant. Taylor Gallery employs sales consultants throughout the gallery, and expects these employees to have “great attitudes, be good team players, and have the desire to succeed.” Taylor Gallery also upholds a professional dress code among its employees, and specifically prohibits its employees from wearing “flip-flop or thong sandals” while working.

Ms. Steel-Judice suffered from back problems due to an injury. She found that changing her shoes throughout the day helped to alleviate her back pain. Steely-Judice switched between two shoes in particular; a pair of orthopedic Dansk clogs and a pair of sandals.

Ms. Steely-Judice lasted all of 4 days at the gallery. On her first day of work, she wore her clogs. On the second day, she started with the clogs and changed into the sandals. The gallery director and Steely-Judice’s supervisor, Ms. Krista Drake, informed her that the sandals did not comply with Taylor Gallery’s dress code, and that she could not wear them to work. Steely-Judice told Drake that she needed to switch between shoes to manage her pain. Drake told Steely-Judice that she would ask the owner, Michael Taylor, whether she could wear the sandals despite the fact that they violated the dress code. On the third day, Steely-Judice was informed that she could not wear the sandals during her shifts because they did not comply with the dress code. Michael Taylor discharged Steely-Judice on the morning of her fourth day.

Taylor Gallery asserted that it discharged Steely-Judice due to her allegedly combative personality. According to Drake, Steely-Judice was “angry, combative and pushy” during her shifts. Steely-Judice argued that she was discharged due to her disability and her resulting request for an accommodation to wear shoes that did not comply with the dress code.

The District Judge granted summary judgment in the employer’s favor, finding that Steely-Judice failed to present significant and substantial evidence to challenge Taylor Gallery’s nondiscriminatory rationale for discharging her. Furthermore, the Court found that Steely-Judice’s subjective belief that she was doing a good job was insufficient to challenge her employers’ rationale for dismissing her.

Practice tip: As the employer did in this case, sometimes it can be better for an employer to “cut its losses” and discharge an employee quickly when she clearly has a problem attitude. There are some people who are going to sue, no matter what happens. In those cases, the employer should carefully document the attitude or performance problems so that it can present actual evidence to support the termination decision when and if the problem employee files a lawsuit.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

How Workplace Drama Can Turn into a Retaliation Action

By Kathleen Jennings (kjj@wimlaw.com)

We always tell our clients that timing is the key to the success or failure of a retaliation action. The shorter the proximity of time between the protected conduct and subsequent action against the employee who engaged in the protected conduct, the more likely it is that the case is not going to be resolved on a motion for summary judgment.

An excellent example of this principle comes to us from New York, where a female regional manager for Anne Fontaine USA Inc. filed a retaliation action against her employer claiming she was fired after complaining that subordinate employees were spreading “rumors” she let a top male executive see her breasts. Last week, a federal district denied the employer’s motion for summary judgment, noting, however, that the former employee’s chances of success on her claims against the clothing retailer might be slim. (Baez v. Anne Fontaine USA, Inc., S.D.N.Y., No. 14-6621, 1/5/17).

Baez was terminated for poor job performance and creating “too much drama” at work. Shortly before her termination, Baez complained about employees spreading rumors that she let the company’s CEO see her breasts. (Baez did admit that she did not wear a bra when she met with the CEO, but denied showing him her breasts). One subordinate employee was issued a written warning for gossiping. The short time period between Baez’s complaints about her co-workers’ gossip and her termination could allow a reasonable jury to find she was fired for opposing suspected sexual harassment, the court said. Moreover, the court said that based on the CEO’s statement that Baez caused “too much drama at work,” a jury could reasonably infer the CEO was referring to the tumult over Baez’s complaints about her co-workers’ speculation that the CEO had seen her breasts.

Practice Tip: There is always a risk of litigation when an employer terminates an employee who has engaged in protected conduct such as complaining about harassment. An employer can enhance its chances of winning that litigation by (a) carefully documenting the reasons for the termination, and (b) avoiding any reference to the protected activity in the termination documentation.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

EEOC Issues Updated Guidance on National Origin Discrimination

By Kathleen Jennings     (kjj@wimlaw.com)

Last week, the EEOC issued new guidance on national origin discrimination in the workplace. This new guidance did not draw a lot of publicity, probably due to the holiday week and the bigger news story involving the injunction of the Department of Labor’s overtime rule. Nevertheless, this new guidance updates previous guidance that was issued back in 2002. The guidance addresses court decisions since 2002 that affect national origin bias and discusses topics including job segregation, human trafficking and “intersectional” discrimination, which refers to cases in which national origin bias occurs along with race discrimination, sex discrimination or another type of unlawful bias.

The EEOC issued a document entitled “Questions and Answers: Enforcement Guidance on National Origin Discrimination,” as well as a Small Business Fact Sheet, which is also presented in a question and answer format, to accompany the new guidance. One of the important issues addressed by the guidance as these documents is the distinction between discrimination on the basis of national origin as opposed to citizenship of immigration status:

2. What is national origin discrimination under Title VII?

National origin discrimination means discrimination because an individual (or his or her ancestors) is from a certain place or shares the physical, cultural, or language characteristics of a national origin (ethnic) group.

•An individual’s place of origin may be a country (such as Mexico), a former country (such as Yugoslavia), or a place that is closely associated with an ethnic group but is not a country (such as Kurdistan).

•A national origin group is a group of people who share a common language, culture, ancestry, and/or other social characteristics (such as Hispanics/Latinos or Arabs).

•National origin does not refer to citizenship or immigration status.

The guidance also notes the overlap between national origin discrimination and discrimination based upon other protected characteristics, such as race, color, or religion:

7. Can applicants or employees allege Title VII employment discrimination based on national origin and another basis, such as race, color, religion, or sex?

Yes. In fact, national origin discrimination often overlaps with other forms of discrimination, such as race, color, or religious discrimination.

A person also could challenge discrimination based on a combination of protected characteristics that are inseparable (often referred to as intersectional discrimination). For example, Title VII prohibits discrimination against an employee because she is an Asian woman, even if the employer has not also discriminated against Asian men or non-Asian women.

This guidance does not have the force of law; it is intended to assist agency employees enforcing Title VII of the 1964 Civil Rights Act as well as instruct employers, workers and other parties subject to Title VII. However, courts often look to the EEOC and its publications for direction on legal issues that fall within the EEOC’s enforcement jurisdiction.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

 

©2016 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.