Articles Posted in Employment Discrimination

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.

Last week, the New York City Council passed the Stop Credit Discrimination in Employment Act, which amends the New York City Human Rights Law to prohibit employment discrimination on the basis of an individual’s consumer credit history.

The law defines “consumer credit history” as “any information bearing on an individual’s credit worthiness, credit standing, or credit capacity, including but not limited to an individual’s credit score, credit account and other consumer account balance, and payment history.”

Specifically, the law prohibits an employer, labor organization, employment agency or licensing agency from (1) requesting a consumer credit history for employment purposes, (2) using it for employment purposes, or (3) retaliating or otherwise discriminating, against an applicant or employee with respect to employment decisions, including hiring, firing, promotion, and terms, conditions or privileges of employment, based upon information contained in the consumer credit history.

On March 25, 2015, the United States Supreme Court issued its awaited decision in Young_v._UPS_(12-1226), in which the Court set forth the standard to be used in analyzing sex discrimination cases involving an employer’s failure to provide pregnant employees with work accommodations.  Although the  Court did not rule that employers are required to provide reasonable accommodations to pregnant employees per se, the effect of its analysis compels that accommodations be considered and provided.

The case involves a driver for UPS, Peggy Young, whose physician restricted her from lifting more than 20 pounds for the first 20 weeks of her pregnancy, and then 10 pounds for the remainder of her pregnancy.  UPS policies required that employees be able to lift 70 pounds alone, and up to 150 pounds with assistance.  As a result, UPS did not permit Young to work during her pregnancy, and she ultimately lost her medical coverage.  UPS’s policy did, however, provide accommodations to employees who could not meet the lifting requirements, but only where workers  (i) were injured on the job; (ii) had a “disability” under the Americans with Disabilities Act (ADA); and (iii) lost Department of Transportation certifications.  According to UPS, because Young was not included within one of these three categories, UPS did not discriminate against her.  Young argued that UPS  discriminated against pregnant employees because it maintained light duty policies for the three categories of employees, but not for workers who were pregnant.  Consequently, she argued, UPS violated the Pregnancy Discrimination Act of 1978 (PDA), which extended the prohibitions of sex discrimination contained in Title VII of the Civil Rights Act of 1964 to discrimination on the basis of pregnancy.

The Supreme Court rejected both Young’s and UPS’s interpretation of the PDA as they related to the issue of pregnancy accommodations.   According to the Court, the law permits “an employer to implement policies that are not intended to harm members of a protected class, even if their implementation sometimes harms those members, as long as the employer has a legitimate nondiscriminatory, nonpretextual reason for doing so.”  As a result of this principle of employment discrimination analysis, a pregnant worker can establish a prima facie case by showing that she belongs to the protected class, sought an accommodation, that the employer failed to accommodate her, and the employer accommodated others “similar in their ability or inability to work.”  If the employee is able to meet this burden, then the employer must come forward with some evidence of a legitimate nondiscriminatory reason for not granting the accommodation to the pregnant worker.  Although under the traditional analysis, the employee would only be able to rebut the nondiscriminatory reason by showing that it was not the real reason motivating the employer’s refusal to accommodate, the Supreme Court appears to have taken a slightly different approach.  According to the Court, the employee would be permitted to a jury trial if she could produce sufficient evidence that the employer’s policy places a “significant burden on pregnant workers,” and the employer’s legitimate nondiscriminatory reasons are not strong enough to “justify the burden.”  Under such circumstances, with due consideration given to the burden imposed, an inference of intentional discrimination could arise.  Thus, an employee might be able to prove pregnancy discrimination where she could show that the employer accommodates a large percentage of nonpregnant workers, while refusing to accommodate a large percentage of pregnant workers.

Last month, we wrote that the Equal Employment Opportunity Commission (EEOC) had challenged an employer wellness program that was implemented by Orion Energy Systems.  In that case, the EEOC alleged that the employer had violated the Americans with Disabilities Act (ADA) by requiring employees to submit to medical examinations that were not job related or consistent with business necessity.  Several days ago, the EEOC challenged Flambeau, Inc.’s wellness program as violating the ADA’s prohibition against mandatory medical examinations.  According to the EEOC the wellness program required that employees submit to biometric testing and a health risk assessment.  The consequences for failing to agree to these exams were, among other things, the possible cancellation of medical insurance coverage and other potential disciplinary action.

The EEOC alleged in this lawsuit, EEOC v. Flambeau, Inc., Civil Action No. 3:13-cv-00638, which was filed in United States District Court for the Western District of Wisconsin,  that when an employee, Dale Arnold, failed to complete the biometric testing and health risk assessment, the employer cancelled his health insurance coverage.  Although the EEOC does not disapprove of wellness programs, it asserts that the programs must be voluntary in all respects.  Otherwise, they constitute a disability-related inquiry and must, therefore, be related to the job in question and consistent with business necessity.

Flambeau disagreed with the EEOC’s characterization of its program and claimed that it had “adopted a health program that allowed employees to assess their health status and participate in programs to improve their health if they so chose.”  Yet, the fact that employees faced repercussions for refusing to undergo the testing in the first place renders the legality of the program questionable under the ADA. The inquiry, and not participating in any health programs proposed as a result of the inquiry, is what may have violated the ADA.

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