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.

 

The Role of Salary History in Pay Discrimination

By Kathleen Jennings (kjj@wimlaw.com)

A recent decision form the Eleventh Circuit of Appeals shows us that an employer cannot rely on salary history as a defense to a claim that it paid a female employee consistently less money than a male predecessor in the same position. (Bowen v. Manheim Remarketing, Inc., 11th Cir., No. 16-17237 (2/21/18)).

Manheim hired Qunesha Bowen as an automobile detailer, and three years later, the assistant general manager promoted her to arbitration manager. Bowen replaced a male arbitration manager. Manheim paid that male predecessor $46,350 during his first year as arbitration manager, but the assistant general manager and general manager set Bowen’s starting salary at $32,000. Bowen’s salary did not reach $46,350 until her sixth year as arbitration manager.

Bowen offered documents and testimony showing that, although she was an effective arbitration manager, her salary for a few years was below the minimum salary for arbitration managers and it was consistently well below the midpoint salary for arbitration managers. In response, Manheim asserted that factors other than sex—prior salary and prior experience—justified the pay disparity between Bowen and her male predecessor. The predecessor worked for Manheim for six years before his promotion to arbitration manager, he had prior managerial and mechanical experience, and he earned $46,350 per year at Manheim before the promotion. In contrast, Bowen worked for Manheim for only three years before her promotion to arbitration manager, she had limited prior managerial and mechanical experience, and she earned around $26,000 per year at Manheim before the promotion.

The District Court granted summary judgment to Manheim, but the Eleventh Circuit reversed that decision. The Eleventh Circuit held that a jury could find that Manheim failed to satisfy its heavy burden of showing that sex provided no basis for the disparity. The Court noted that Manheim did not simply pay Bowen’s male predecessor a much greater starting salary; it set the predecessor’s salary near the midpoint of the compensation range for arbitration managers but consistently set Bowen’s salary at the bottom of the range. A jury could find that prior salary and prior experience alone do not explain Manheim’s disparate approach to Bowen’s salary over time. Most notably, the Court stated that once Bowen established herself as an effective arbitration manager, prior salary and prior experience would not seem to justify treating her different than the predecessor.

There was some especially damaging evidence of sex discrimination at Manheim that was offered in the form of an affidavit form Manheim’s human resources manager, Mikiya Peoples. Peoples’ affidavit testimony established that sex-based pay disparities were common at Manheim, that the managers refused to remedy the disparities, and that the managers repeatedly exhibited an unwillingness to treat women equally in the workplace.

The role of salary history in perpetuating gender discrimination in pay is being hotly debated. To date, California, Oregon, Massachusetts, Delaware, New York City, San Francisco, and Puerto Rico have all enacted laws banning employers from asking about a job applicant’s salary history. Know the law of your jurisdiction before you ask candidates about salary history.

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.

Once again, Retaliation is the Most Frequently Filed Charge With EEOC

By Kathleen Jennings (kjj@wimlaw.com)

The EEOC released its fiscal year 2017 charge data, and once again, retaliation tops the list as the most frequently filed charge. Next on the list are are race, disability, and sex. Specifically, the charge numbers show the following breakdowns by bases alleged, in descending order:

  • Retaliation: 41,097 (48.8 percent of all charges filed)
  • Race: 28,528 (33.9 percent)
  • Disability: 26,838 (31.9 percent)
  • Sex: 25,605 (30.4 percent)
  • Age: 18,376 (21.8 percent)
  • National Origin: 8,299 (9.8 percent)
  • Religion: 3,436 (4.1 percent)
  • Color: 3,240 (3.8 percent)
  • Equal Pay Act: 996 (1.2 percent)
  • Genetic Information: 206 (.2 percent)

[These percentages add up to more than 100 because some charges allege multiple bases].

84,254 workplace discrimination charges were filed with the EEOC nationwide during fiscal year (FY) 2017. This is down from 91,503 charges of workplace discrimination filed in fiscal year 2016.

The EEOC also received 6,696 sexual harassment charges and claims that it obtained $46.3 million in monetary benefits for victims of sexual harassment. We expect the number of sexual harassment charges to increase in 2018 due to increased public awareness of sexual harassment.

Why is retaliation the most filed charge? For starters, it is very difficult to prevent an employee from claiming that he or she has been retaliated against after he or she has made a complaint or filed a charge of discrimination or harassment. From that point forward, that employee is likely to perceive anything bad that happens as retaliation for making that complaint or filing that charge, even if it isn’t. Any writeup, any poor performance evaluation, change in schedule, or even something as seemingly minor as moving an employee’s desk, even if completely justified, will be perceived as retaliation if it occurs after the employee has made a complaint or filed a charge.

Although an employer often cannot prevent an employee from alleging retaliation, it can take measures to build a strong defense to such a claim. Document the reasons for the action. Do not let a supervisor who is accused of harassment or discrimination be the sole decisionmaker for actions taken against the employee who made the complaint. At a minimum, add a level of review by another supervisor or manager or an HR professional. If there is a concern that an action may be considered retaliation, consult with legal counsel.

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.

 

Expanded EEO-1 Form Put on Hold

By Kathleen Jennings (kjj@wimlaw.com)

Human resources professionals at companies with 100 or more employees are breathing a sigh of relief today because the Trump administration has put the implementation of the “expanded” EEO-1 form on hold.

On August 29th, the Office of Management and Budget (OMB) informed the Equal Employment Opportunity Commission (EEOC), (via a memo from Neomi Rao, Administrator, Office of Information and Regulatory Affairs to EEOC Acting Chair Victoria Lipnic) that it is initiating a review and immediate stay of the effectiveness of the pay data collection aspects of the EEO-1 form that was revised on September 29, 2016. Among other things, OMB is concerned that some aspects of the revised collection of information lack practical utility, are unnecessarily burdensome, and do not adequately address privacy and confidentiality issues.

[Backstory: EEOC Acting Chair Victoria Lipnic reportedly opposes the “expanded” EEO-1 form, but she does not have enough conservative members on the EEOC to get rid of it. The action by the OMB is basically an “end run” around that problem.]

The “expanded” EEO-1 form was developed during the Obama administration and would have required private employers with 100 or more employees to report annually to the Equal Employment Opportunity Commission summary pay data categorized by sex, race, and ethnicity. The purpose of the revised form was greater pay transparency which was supposed to result in more pay equality. It was strongly opposed by business groups due to concerns about the cost of compliance and the potential litigation risks created by the organization of the pay data.

For now, employers with 100 or more employees and federal government contractors and first-tier subcontractors with 50 or more employees and at least $50,000 in contracts should plan to comply with the earlier approved EEO-1 (Component 1) by the previously set filing date of March 2018. The more onerous reporting requirements of Component 2 have been placed on hold.

The EEOC now must decide whether they want to withdraw the “expanded” EEO-1 form altogether or submit a revised form. In the meantime, EEOC Acting Chair Victoria Lipnic expressed the hope that “this decision will prompt a discussion of other more effective solutions to encourage employers to review their compensation practices to ensure equal pay and close the wage gap.”

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.

Can an Employer Fire an Employee for Posing with a Nazi Symbol?

By Kathleen Jennings (kjj@wimlaw.com)

This past weekend, an alt-right rally in Charlottesville, VA featured numerous men (and some women) wearing white hoods, Nazi symbols, and other symbols of what they considered “white pride.” Many others consider these symbols of racial hatred, and there was a movement on social media to identify some of the attendees of the rally and ask their employers to fire them. Of course, that piqued the interest of this employment lawyer.

Can an employer fire an employee for posing with a Nazi symbol or other expression of racial and/or religious animosity? Even though this behavior occurred outside the workplace?

In an at-will employment state such as Georgia, a private employer can terminate an employee who does not have a written contract of employment at any time, for any reason, or no reason at all. So the answer is Yes. This power to terminate is limited by federal law, which means that an employment decision should not violate federal anti-discrimination laws (which generally apply to employers with 15 or more employees). In the case of the employee posing with the Nazi symbol, he will be hard-pressed to a show that his termination is motivated by discrimination. To show discrimination, he would need to show that similarly situated (i.e., posing with a known symbol of racial animosity) non-white employees were not terminated. The answer is still Yes.

Should an employer fire an employee for posing with a Nazi symbol? If the employee is a supervisor or manager, the answer is Absolutely Yes. That picture will forever carry a taint of racial animus that will affect any employment decision that the employee makes, including any decisions in his chain of command, and that taint will be imputed to the company.

If the employee is not a supervisor or manager, the answer is slightly less definitive. Has this employee shown any discriminatory attitudes or beliefs in the workplace? Has he had conflicts with other employees? Are other employees aware of his beliefs, and does that cause disruption in the workplace? Are others likely to associate this employee’s beliefs with the company? If the answer to any of these questions is yes, then he probably needs to go.

If the employer decides not to terminate the employee, it needs to set some ground rules. First, there needs to be a documented conversation with the employee about the company’s EEO policy and a reaffirmation that the company will not tolerate discrimination. Second, the employee needs to be made aware that he will not be considered for any supervisory or managerial positions. If the employee shows any resistance to either of these concepts, then it is not a good idea to keep him around.

Finally, there is no First Amendment “right to free speech” in a private (non-government) workplace. That means an employee may have to choose between posing with a Nazi symbol and keeping his job.

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.

 

 

The EEOC Frowns on Stereotyping of Older Applicants

By Kathleen Jennings (kjj@wimlaw.com)

A parking management company in Atlanta is facing a discrimination lawsuit filed by the EEOC because an operations manager told a 60-year-old female applicant for a valet job that she would not be successful as a valet because of the “physicality of the job.” Instead, the operations manager told applicant, Valerie Hayden, that she would be perfect for a customer service position and told her to come back the following week to attend orientation.

Then the company made things even worse: the day before she was scheduled to begin her new position, Hayden called to ask what time she should report. However, the operations manager told Hayden that the job had already been filled. The company’s records show that after Hayden was interviewed, it hired several male valets and customer service employees who were substantially younger than Hayden. After this kind of treatment, it is not surprising that Hayden went to the EEOC and filed a charge of discrimination.

The EEOC’s lawsuit asserts that this alleged conduct violates Title VII of the Civil Rights Act and the Age Discrimination in Employment Act (ADEA). In the press release issued by the EEOC, Antonette Sewell, regional attorney for the Atlanta District Office, stated, “What is most disturbing about this case is that the hiring official automatically assumed that Ms. Hayden was not qualified to work as a valet or customer service parking manager because of her age and the fact that she is a woman. Such managerial behavior is not legal or acceptable in the 21st century.”

Do not make assumptions about a job applicant’s physical ability to perform a job based solely on age or gender. Consider this: Diana Nyad swam from Cuba to Florida at the age of 64. 92-year-old Harriette Thompson completed the San Diego Rock ‘N Roll Marathon in 2015 (and became the oldest person to complete a half-marathon 2 years later).

Pro tip: During the job interview process, an employer can ask an applicant if he/she is able to perform the essential functions of the job. Once a conditional job offer is made, the employer may ask more detailed questions about abilities and disabilities and require medical examinations as long as this is done for all entering employees in that job category.

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.