Articles Posted in Employment Discrimination

Allegations of sexual harassment and misconduct against business leaders, politicians and artists, have become a front page staple of newspapers across the country.  Many are shocked by the allegations and claim to wonder how they could have stayed secret for so long.  Despite the numerous cases of sexual harassment filed each year in courts throughout the country, rendering the allegations a matter of public record, a bipartisan group in Congress is blaming the increased use of nonpublic arbitrations for keeping allegations quiet.  As a result, they seek passage of a bill intended to prohibit sexual harassment and gender discrimination cases from being resolved privately in arbitration.

The bill, Ending Forced Arbitration of Sexual Harassment, would prohibit businesses from enforcing predispute arbitration agreements of sex harassment and discrimination claims covered under Title VII of the Civil Rights Act of 1964, as amended.  A “predispute arbitration agreement” is defined by the bill as “any agreement to arbitrate a dispute that had not yet arisen at the time of the making of the agreement.”  It targets arbitration agreements that an employee might be asked to sign as a condition of getting hired or remaining employed.  The bill does not seek to eliminate predispute arbitration agreements in connection with other types of discrimination claims.

The bill does not address class action waivers, which increasingly have been included in arbitration agreements and require that claims be asserted individually and not on a class basis.  Class action waivers can exist outside the context of arbitration, but they are not addressed in the bill. The bill also does not address the use of confidentiality agreements following the settlement of sexual harassment claims.

The New York City Human Rights Law (“NYCHRL”) was amended back in May 2017 to prohibit employers and employment agencies from inquiring into the salary history of job applicants Employers and employment agencies had six months to prepare for that ban, which takes effect on October 31, 2017.

Although we previously covered the amendment in May 2017, a quick summary of its material provisions is in order:

  • The salary history inquiry ban applies to all employers and employment agencies, regardless of size, that are hiring job applicants in New York City. This also includes situations where the job is located outside of New York City, although interviews occur in New York City.  Consequently, the law affects employment outside of New York City as well.

President Trump’s 2018 budget, released on May 23, proposes to merge the Office of Federal Contract Compliance Programs (OFCCP) with the Equal Employment Opportunity Commission (EEOC) by the end of FY 2018.  The proposed merger purports to result in “one agency to combat employment discrimination.”  The Trump administration asserts that the merger would “reduce operational redundancies, promote efficiencies, improve services to citizens, and strengthen civil rights enforcement.”

Both business groups and employee civil rights organizations have opposed the measure, albeit for different reasons.  The OFCCP is a division of the U.S. Department of Labor, while the EEOC is an independent federal agency.  Although both deal with issues of employment discrimination, their mandates, functions and focus are different.  The OFCCP’s function is to ensure that federal government contractors take affirmative action to avoid discrimination on the basis of race, color, religion, sex, national origin, disability and protected veteran status.  The OFCCP, which was created in 1978, enforces Executive Order 11246, as amended, the Rehabilitation Act of 1973, as amended, and the Veterans’ Readjustment Assistance Act of 1975.  The EEOC administers and enforces several federal employment discrimination laws prohibiting discrimination on the basis of race, national origin, religion, sex, age, disability, gender identity, genetic information, and retaliation for complaining or supporting a claim of discrimination.  Its function is to investigate individual charges of discrimination brought by private and public sector employees against their employers.  The EEOC was established in 1965, following the enactment of Title VII of the Civil Rights Act of 1964.

Business groups oppose the OFCCP’s merger into the EEOC due to concerns that it would create a more powerful EEOC with greater enforcement powers.  For example, the OFCCP conducts audits, which compile substantial data on government contractors’ workforces, while the EEOC possesses the power to subpoena employer records.  Combining these tools could provide the “new” EEOC with substantially greater enforcement power.  Civil rights and employee organizations oppose the merger, believing that overall it would result in less funding for the combined functions currently performed by each agency.

Title VII prohibits employment discrimination because of sex.  It does not, however, expressly prohibit discrimination based on an individual’s actual or perceived sexual orientation.  Recently, federal courts have started to disregard this distinction in favor of concluding that discrimination on the basis of sexual orientation is a form of sex discrimination because it inherently involves gender stereotyping.  Although the U.S. Court of Appeals for the Second Circuit, which covers New York, Connecticut and Vermont, has been reluctant to find that sexual orientation discrimination is illegal under federal law, Chief Judge Katzmann of the Second Circuit explained just last month in Christiansen v. Omnicom Grp., Inc., that sexual orientation discrimination should be considered sex discrimination because “such discrimination is inherently rooted in gender stereotypes.”  A prior opinion from the Second Circuit suggested that stereotypical “notions about how men and women should behave will often necessarily blur into ideas about heterosexuality and homosexuality.”  In light of these statements from the Second Circuit, lower courts have started to accept that federal law does, in fact, prohibit sexual orientation discrimination.

Most recently, on May 3, 2017, Judge Alvin Hellerstein of the U.S. District Court for the Southern District of New York refused to dismiss a claim for sexual orientation discrimination under Title VII in Philpott v. State of New York, insisting that sexual orientation discrimination is a form of sex discrimination because “sexual orientation cannot be defined or understood without reference to sex.” In refusing to dismiss the claim, Judge Hellerstein stated that he “decline[d] to embrace an ‘illogical and artificial distinction between gender stereotyping discrimination and sexual orientation discrimination. . . .”  The court viewed the plaintiff’s allegations as supporting a claim of gender stereotyping discrimination.  These allegations included statements attributed to the President of SUNY Optometry that referred to the plaintiff as “sensitive,” “flamboyant,” and “frenetic.”  This same official told the plaintiff that “separate but equal treatment of gay people might be best,” and that upon learning that plaintiff’s relationship with his domestic partner had ended, this official told the plaintiff that “this marriage, or whatever you want to call it, is a distraction to the College.”

A finding that Title VII prohibits sexual orientation discrimination as a form of sex discrimination would not affect employers and employees in states such as New York, Connecticut and Massachusetts that already prohibit such discrimination.  Nevertheless, the federal court’s decision in Philpott highlights that even high-level management officials in states like New York, where sexual orientation discrimination is already illegal, require workplace training to instill that stereotyping is discrimination, and cannot form the basis for workplace decisions.

Earlier this week, I reported in Murtha Cullina’s Labor and Employment Group News that the Second Circuit, which covers New York, Connecticut and Vermont, clarified that a single racist comment could support a claim for a discriminatory hostile work environment on the basis of race, where the comment constituted a “severe racial slur.”  To read the full article, simply click on the following link:    A Single Racist Comment Can Create a Hostile Work Environment.

Last week the EEOC released data for FY2016 indicating that the number of workplace charges filed with the EEOC increased for the second year in a row.  According to the data, the EEOC received 91,503 charges of employment discrimination during FY 2016, which is a bit higher than the 89,385 charges it received in FY 2015.  The breakdown of charges reflects that once again more charges were filed alleging retaliation than any other category.  In FY 2016, there were 42,018 charges filed with the EEOC, which reflected 45.9% of all charges filed.  The newly released data also provides information about LGBT claims, and show that the number of LGBT filings in FY 2016 (1,768) were more than double those filed in FY 2013 (808).  The EEOC’s press release details other more specific information concerning charge resolutions and litigation.

It will be interesting to see the data for FY 2017 following the new administration’s EEOC priorities.  Yesterday, President Trump named Victoria Lipnic as acting chair of the EEOC.  Ms. Lipnic has been a Commissioner of the EEOC since 2010, and is well regarded by Democrats.  From 2002 to 2009, she was Assistant Secretary of Labor for Employment Standards under President Bush.  It is likely that she will ultimately be appointed chair because she is the only Republican Commissioner at the EEOC.

The New York State Human Rights Law (NYSHRL) and New York City Human Rights Law (NYCHRL) prohibit discrimination on the basis of sex or gender.  Despite the “liberal construction” applied to the interpretation of sex discrimination under the NYSHRL and NYCHRL, a Manhattan Supreme Court held on May 11, 2016, that it does not include terminating an employee because of concerns that the employee is “too cute.”

In Edwards v. Nicolai, 160830/2013, NYLJ 1202758050107, at *1 (Sup., NY, Decided May 11, 2016), Edwards was employed as a yoga and massage therapist by Wall Street Chiropractic and Wellness (“WSCW”) for approximately a year and a half.  WSCW was co-owned by Nicolai and his spouse, Adams.  According to the complaint, Nicolai maintained a strictly professional relationship with Nicolai and had only met Adams once, at a cordial meeting.  Approximately two months into Edwards’ employment, Nicolai told her that is wife might become jealous of her because she was “too cute.”

A year and a half after she was hired she received a text message from Adams “out of the blue,” which stated “[y]ou are NOT welcome any longer at Wall Street Chiropractic.  DO NOT ever step foot in there again, and stay the [F….] away from my husband and family!!!!!!! And remember I warned you.”  The next day Nicolai emailed Edwards, “You are fired and no longer welcome in our office.  If you call or try to come back, we will call the police.”

Last month, Governor Cuomo signed five bills into law that strengthen New York law’s prohibitions against sexual discrimination. Each of these bills form a part of the Women’s Equality Act, and collectively address such areas as equal pay for equal work, sexual harassment, familial status discrimination, attorneys’ fees in sexual discrimination and sexual harassment cases, and reasonable accommodations for pregnant employees. The laws, which are described below, will take effect on January 19, 2016.

Pay Equity

Although New York law already prohibits employers from paying women less than men for performing the same work, the bill strengthens such prohibitions by (1) making it unlawful for an employer to prohibit employees from sharing their wage information with each other, thereby enabling employees to determine whether there exists a salary disparity between them and their coworkers; (2) requiring an employer to show that pay differentials between men and women are due to “a bona fide factor other than sex, such as education, training and experience,” and otherwise limiting the circumstances under which pay disparities between men and women might be permitted; (3) increasing the amount of damages in cases of sexual pay disparities based upon sex from 100% liquidated damages to 300%.

On June 29, 2015, Mayor Bill De Blasio signed into law the Fair Chance Act, which was passed earlier in the month by the New York City Council.  The law amends the New York City Human Rights Law (NYCHRL) to prohibit New York City employers with four or more employees from inquiring into or otherwise considering a job applicant’s criminal background history prior to making a conditional offer of employment.  The law effectively “bans the box” contained in job applications, which generally inquire into an applicant’s criminal history.

The law does not prevent an employer from asking about an applicant’s criminal history, but simply delays the inquiry until after a conditional job offer is made.  The term “inquiry” is defined broadly by the law and means “any question communicated to an applicant in writing or otherwise, or any searches of publicly available records of consumer reports that are conducted for the purpose of obtaining an applicant’s criminal background information.”  After an employer extends a conditional offer of employment, and explains that employment is conditioned on the applicant’s responses to a criminal history inquiry or background check, the employer must do the following:

  1.  Provide a written copy of the inquiry or background check to the applicant in a manner still to be determined by the New York City Commission on Human Rights;

Today, the U.S. Supreme Court held in an 8-1 decision that to prevail in a disparate-treatment case under Title VII based upon religion, a job applicant is only required to prove that the need for a religious accommodation was a motivating factor in the employer’s decision not to hire him or her; the job applicant is not required to prove that the employer had actual knowledge of the applicant’s need.

The case, EEOC v. Abercrombie & Fitch Stores, Inc. (No. 14-86), involved a claim by Samantha Elauf, a practicing Muslim, who applied for a job with Abercrombie & Fitch, but was rejected because the headscarf she wore conflicted with Abercrombie’s dress code policy.

The job interviewer did not know for a fact that Elauf was Muslim, but the record established that the interviewer correctly inferred that Elauf was a practicing Muslim.  Abercrombie argued that an applicant cannot show disparate treatment (or intentional discrimination) without first showing that the employer had “actual knowledge” of the applicant’s need for a religious accommodation (i.e., one that would have permitted Elauf to wear the headscarf at work).  The Court rejected this argument stating that an applicant did not need to show actual knowledge, but only that the need for an accommodation was a motivating factor in the decision not to hire her.  In this case, failing to hire Elauf because of her headscarf was synonymous with refusing to accommodate her religious practice, even though Abercrombie might not have had specific knowledge that she needed the accommodation for religious (and not secular) purposes.