EEO-1 Pay Data Due By September 30

By Kathleen J. Jennings (kjj@wimlaw.com)

If your company is required to file EEO-1 reports, then you need to be aware of the latest development in the litigation regarding the addition of pay data to the EEO-1: the federal judge in that case has ruled that EEO-1 pay data must be submitted by September 30, 2019. The federal judge further ruled that employers must turn over two years of pay data to the EEOC. Fiscal year 2018 data is due by Sept. 30, but the EEOC may choose the second year of data it will request from employers: either 2017 or 2019. If the EEOC selects 2017 data, it will be due by Sept. 30, along with the 2018 data. If the EEOC chooses to collect 2019 data, it will be due in Spring 2020. The judge ordered the EEOC to make a decision by May 3 and to inform employers about the 2018 data by April 29 on its website.

EEO-1’s can be filed electronically, but the EEOC’s electronic portal is not ready to accept the pay data in EEO-1’s. However, it was the EEOC that proposed the September 30 deadline, so presumably, it will be ready to accept the pay data by that date. EEOC has stated that it is planning to use an outside contractor to assist with the project.

Who must file an EEO-1? Generally, companies with 100 or more employees and federal contractors with 50 or more employees. These employers will be required to submit employee data, organized into categories of race, sex, ethnicity, and one of 10 job categories. That information is then sorted into one of 12 pay bands.

Employers who are required to file EEO-1s should be collecting the pay data now in preparation for the new filing deadline. There may be further delays or developments, but the best approach right now is to be prepared to meet the new deadline.

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

©2019 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.

 

 

US Supreme Court to Decide Whether Title VII Protects LGBT Employees

By Kathleen Jennings (kjj@wimlaw.com)

Today, the US Supreme Court agreed to consider three appeals court cases involving the issue of whether Title VII’s prohibition of discrimination on the basis of sex covers sexual orientation or gender identity. Currently, there is a split among the Circuits on this issue; the Seventh and Second Circuits have held that sexual orientation is protected by Title VII, and the Eleventh Circuit has held that it is not. In addition, the Sixth Circuit has held that Title VII protects a worker from discrimination on the basis of gender identity. Because of this split in the Circuits, it was only a matter of time until the US Supreme Court decided to take up this issue.

Title VII of the 1964 Civil Rights Act prohibits job discrimination because of “sex.” The narrow interpretation of Title VII does not expand the word “sex” to include sexual identity or transgender status. In 1989, the US Supreme Court held that discrimination on the basis of sex encompasses “sex stereotyping,” and prohibits discrimination against an employee on the basis of non-conformance to sex-based stereotypes. This interpretation has been utilized in some cases where LGBT have alleged that they were discriminated against because they did not conform to the stereotypes of their gender.

Others are urging the courts to adopt a more modern understanding of “sex” that encompasses job bias against a worker who is gay, lesbian, bisexual, or transgender.

Keep in mind that while we wait for the Supreme Court’s decision on this issue of federal law, which should be issued by this summer, several states and localities have enacted their own laws that protect LGBT workers from discrimination. Companies need to keep up with all of the laws in the states where they do business.

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

©2019 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.

You Might Be a Redneck If—You Believe You Were Retaliated Against for Complaining About Being Called a Redneck

By Kathleen J. Jennings (kjj@wimlaw.com)

Those of a us of a certain age remember comedian Jeff Foxworthy’s routine about “You Might Be A Redneck If….” Now a case out of Georgia cautions us that if an employee complains that another employee has called him a redneck/hillbilly, the employer may need to take that complaint seriously. [Bland v. Sam’s East, Inc. , M.D. Ga., No. 4:17-CV-190 (CDL), 1/9/19 ].

Joshua Bland, a white tire technician employed by Sam’s Club, sued his employer claiming, among other things, that he was terminated for complaining to his supervisor that another employee, Edgar Cornell Robinson, who is African-American, called him a “dumb redneck/hillbilly” during a very heated argument at work but was not disciplined for doing so.

When Bland and Robinson were scheduled to work together a couple of days after their argument, Bland was not happy and spoke with their supervisor. Bland argued that he felt Robinson should have been disciplined for calling him a redneck/hillbilly because Bland would have been fired immediately if he had used the “N word” during his confrontation with Robinson. (Whether those two different statements are, in fact, equivalent, is an argument for another day). The employer claimed that during this conversation, Bland acted aggressively toward his supervisor and was rude and disrespectful, and Bland was terminated the next day. Bland claims otherwise; he alleged that he was calm and respectful. This set up a dispute of material facts that caused the judge to deny summary judgment to the employer.

A jury will now decide whether Bland was terminated for his aggressive behavior toward his supervisor or because he complained about what he perceived as race-based favoritism toward Robinson.

The takeaway: When an employee makes a complaint of discrimination or harassment, he or she is protected from retaliation regardless of whether the complaint itself has any merit. So here, Bland just had to show that had a good faith, reasonable belief that he was complaining about discrimination when he complained that Robinson was not disciplined for calling him a “dumb redneck/hillbilly,” and Bland was then protected from retaliation because he made that complaint. Therefore, an employer has to be extra cautious when taking any disciplinary action that is close in time to a complaint.

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

©2019 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.

Some Things Are Better Left Unsaid, At Least In An Email

By Kathleen J. Jennings (kjj@wimlaw.com)

A case out of Pennsylvania deals with an issue that keeps HR professionals up at night: emails giving direction to a supervisor with regard to handling the discipline of a long-time employee. In these emails, the HR manager advised the employee’s supervisor supervisor to follow every step of the company’s progressive discipline policy, even though company policy did not require him to do so. The HR manager also said that because the employee in question had been working for the company for more than 20 years and was in the “over 40 protected class,” all steps should be taken to avoid the risk of “a situation where this [could] potentially drag out longer with complications.”

The employee, who was eventually terminated, filed a lawsuit for age and disability discrimination. In that lawsuit, the employee’s attorney argued that the HR manager’s email was direct evidence of age-related bias. [In a discrimination case, direct evidence of discrimination is extremely harmful to the employer because it essentially shifts the burden of proof.]

The Court rejected that argument, instead finding that the emails showed that the employer was trying to avoid creating grounds for a potential age discrimination claim by the employee by skipping a step in its progressive discipline program. The Court also found that the employee could not prove that she was terminated because of her age or disability. Rather, she was terminated due to documented problems with her job performance.

The takeaway: There is a big evidentiary gap between acknowledging that an employee is over the age of 40 and proving that such knowledge equals discriminatory motive. Nevertheless, some things are better left out of an email or written communication (that is not covered by attorney-client privilege), and saying that “Employee is in a protected class and might sue us if we are not careful” is probably one of them. Although the Judge did not find the email in question to be direct evidence of discrimination, the employer had to expend resources fighting that argument. Sensitive matters such as possible legal action by an employee should be confined to written communications with counsel.

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

©2018 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.

 

“You Can’t Teach an Old Dog New Tricks,” and Other Ageist Comments

By Kathleen J. Jennings (kjj@wimlaw.com)

In the U.S., there are projections that the number of Millennials may soon exceed the number of Baby Boomers. Millennials, whom are defined as ages 20 to 35 in 2016, numbered 71 million, and Baby Boomers (ages 52 to 70) numbered 74 million. Millennials are expected to overtake Baby Boomers in population in 2019 as their numbers swell to 73 million and Boomers decline to 72 million. Generation X (ages 36 to 51 in 2016) is projected to pass the Baby Boomers in population by 2028.

In the meantime, many of the massive Baby Boomer generation keep working, and all of them are old enough to be covered by the Age Discrimination in Employment Act (ADEA) (as are some Generation Xers). That means that all of them are protected against discrimination on the basis of age. So this means that when your company is conducting anti-harassment and anti-discrimination training, make sure that everyone, especially managers and supervisors, understand that negative comments about an employee’s age are among the behaviors that are not tolerated.

A subsidiary of Time Warner Cable learned how expensive an ageist comment can be. In Westmoreland v. TWC Admin. LLC , 2018 BL 145052, W.D.N.C., No. 5:16-cv-00024, the plaintiff, Glenda Westmoreland was in her 60s when she was terminated by her employer TWC Administration LLC, ostensibly because she asked a subordinate to falsify a document. Westmoreland alleged that she was discriminated against, and the case was eventually tried to a jury (twice, due to a mistrial in the first trial). At trial, the jury heard testimony that the manager who fired Westmoreland told her to “go home and take care of those grandbabies.” The jury also saw or heard evidence that Westmoreland had a stellar performance record prior to the document falsification charge and that TWC could have imposed discipline short of termination for the infraction. In short, that ageist comment from the manager completely undermined the company’s non-discriminatory justification for Westmoreland’s termination.

Pro tip: During any termination meeting, stick to the facts supporting the termination and avoid any unnecessary comments that might refer to the employee’s age, sex, disability, race, or any other protected characteristic. Seems obvious, but as the case above illustrates, it may be easier said than done.

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.

©2018 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.

 

Title VII Prohibits Discrimination Against Transgender Workers, Says Appeals Court

By Kathleen J. Jennings (kjj@wimlaw.com)

In another example of a federal appellate court using an expansive definition of the word “sex” (for another, see this blog post), the Sixth Circuit Court of Appeals ruled that Title VII’s prohibition of discrimination “on the basis of sex” includes discrimination based on gender identity or because the person is transitioning between genders. (EEOC v. R.G. &. G.R. Harris Funeral Homes, Inc., 6th Cir., No. 16-2424, summary judgment reversed 3/7/18).

This case involves Aimee Stephens (formerly known as Anthony Stephens), who was born biologically male. While living and presenting as a man, she worked as a funeral director at R.G. & G.R. Harris Funeral Homes, Inc. Stephens was terminated from the Funeral Home by its owner and operator, Thomas Rost, shortly after Stephens informed Rost that she intended to transition from male to female and would represent herself and dress as a woman while at work. Stephens filed an EEOC Charge alleging sex discrimination. An interesting fact that came out of the investigation of Stephens’ EEOC Charge was that the Funeral Home provided its male public-facing employees with clothing–at no cost to the male employees–that complied with the company’s dress code while female public-facing employees received no such allowance. This is the kind of low-hanging fruit that will definitely get the EEOC’s attention.

The court below granted summary judgment to the Funeral Home and dismissed the case. The Sixth Circuit reversed, finding that this case was controlled by the U.S. Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228 , 109 S. Ct. 1775 , 104 L. Ed. 2d 268 (1989), which held that discrimination based on a failure to conform to stereotypical gender norms is a form of sex discrimination prohibited by Title VII.

Moreover, the Sixth Circuit expressly held that that discrimination on the basis of transgender and transitioning status violates Title VII. The Court also rejected the Funeral Home’s owner’s argument that compliance with Title VII’s prohibition of discrimination against transgender employees substantially burdened his religious practice. The owner was concerned that permitting Stephens to represent herself as a woman would cause him to “violate God’s commands” because it would make him “directly involved in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift. Nope, said the Court: “as a matter of law, bare compliance with Title VII—without actually assisting or facilitating Stephens’s transition efforts—does not amount to an endorsement of Stephens’s views.”

This is a significant decision, and we will wait and see if other Circuits will embrace this interpretation of Title VII. Employers should be watching these developments closely.

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.

©2018 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.

 

 

 

Appeals Court Rules that Title VII Covers Discrimination Based on Sexual Orientation; Sets Up Possible Showdown at U.S. Supreme Court

By Kathleen Jennings (kjj@wimlaw.com)

Earlier this week, the Second Circuit Court of Appeals (covering New York, Connecticut and Vermont), in an en banc decision, ruled that Title VII’s prohibition on discrimination on the basis of sex extends to discrimination based on sexual orientation. (Zarda v. Altitude Express, Inc., 2d Cir., No. 15-03775, opinion 2/26/18).

“Sexual orientation discrimination—which is motivated by an employer’s opposition to romantic association between particular sexes—is discrimination based on the employee’s own sex,” the appeals court said in an opinion by Judge Robert Katzmann.

This decision reversed one by a three-judge panel of the same court. The case drew a lot of interest: a group of 50 companies and organizations—including Microsoft Corp., Alphabet Inc.’s Google and Viacom Inc.—filed briefs arguing discrimination based on sexual orientation should be illegal. On the other side, the Trump administration supported the employer and argued against the protection of sexual orientation from discrimination under Title VII. Attorney General Jeff Sessions has been critical of the decision.

This is the second Appeals Court (the Seventh Circuit is the other) to find that discrimination on the basis of sexual orientation is covered by Title VII. However, the Eleventh Circuit Court of Appeals (covering Georgia, Florida and Alabama) ruled last year that Title VII does not cover discrimination on the basis of sexual orientation. A request for the U.S. Supreme Court to hear the Eleventh Circuit case was denied. Nevertheless, there is an obvious split among the Circuits on this issue, and the U.S. Supreme Court is the place to resolve these types of splits, so stay tuned!

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.

©2018 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.