EEOC Sees Discrimination at Lakeland Eye Clinic

Title VII, the federal anti-discrimination, harassment, and retaliation law in employment, does not explicitly name gender identity or homosexuality as protected classes, but broadly prohibits sex discrimination.  Over the years, sex discrimination has been interpreted to include pregnancy-based discrimination, as well as sex stereotyping.  However, sexual orientation discrimination has typically not been held to be prohibited by Title VII, but that may be changing with the help of the EEOC.  

The EEOC is the federal administrative agency responsible for the investigation and enforcement of the provisions of Title VII and other anti-discrimination laws.  In 2012, the EEOC announced that one of its objectives over the next few years would be to address "emerging and developing issues" including "coverage of lesbian, gay, bisexual and transgender individuals under Title VII's sex discrimination provisions, as they may apply."  

The critical phrase is "as they may apply" because the EEOC must recognize that the statuses of being transgendered or homosexual are not directly covered by the language of Title VII.  Thus, what the EEOC has done to effectuate its policy goal is take the position that discrimination on the basis of one's transgender or homosexual status violates Title VII because the traits affiliated with such individuals fall into the category of gender stereotyping.

 Gender stereotyping has been recognized as covered by Title VII since the United States Supreme Court's 1989 holding in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).   In the Hopkins case, a female employee suffered discrimination due to management's perception that she did not fit the "traditional" profile of femininity in her appearance and attitude.  The Court held that discrimination on the basis of such sex stereotyping was prohibited under Title VII.  The interpretation of Title VII in the Hopkins case is critical to the EEOC's move to enforce the rights of LGBT individuals in the workplace. 

In 2014, the EEOC filed suit on behalf of a transgender woman who worked for a Lakeland, Florida eye clinic.  The employee was transitioning from male to female, and began to present at the workplace as a female.  Although her work product remained satisfactory, she was fired.  The EEOC alleged that the employee was unlawfully fired on the basis of sex, in that she did not conform to the employer's sex-based stereotypes.  

A settlement was approved in April 2015, with Lakeland Eye Clinic agreeing to pay $150,000 to the terminated employee. According to the EEOC, this case was one of the first two to be filed where the employee's transgender status was the protected class.  

While the EEOC does not make law, employers should definitely take note that the EEOC is actively pursuing the rights of LGBT employees.  Although a strict reading of Title VII does not indicate homosexuality or transgender status as protected classes, there is court precedent that could support such claims under the umbrella of gender stereotyping.  Therefore, as with any employees, employers are best served by making employment decisions on the merits of the employee's work and not on the employee's gender-based attributes.   

DOL Pushes for Paid Family Leave

Sometimes, we forget that the United States is only one of three countries in the world that does not offer paid maternity or paternity leave.  Despite many preaching the importance of family values in American culture, we have no nation-wide laws that provide paid leave to individuals working in the private sector upon the birth or adoption of a child.  The closest we come to providing help to new parents is under the Family and Medical Leave Act of 1993 ("FMLA").

However, the FMLA DOES NOT guarantee paid leave to employees.  Rather, it only guarantees up to twelve weeks of unpaid leave for qualifying employees who work for covered employers.  So, even assuming an individual has worked for at least a year for an employer and worked 1250 hours in that year, if the employer does not have at least 50 employees in a 75-mile radius, that employee does not benefit from the protections of the FMLA.  As a result, employees who work for small to mid-size businesses or individuals who work as independent contractors have no FMLA-based leave rights.

Of course, nothing stops any employer from voluntarily providing unpaid or paid leave to its employees.  Some private sector employers provide paid leave for a few weeks or partially-paid leave over a longer period of time.  

The Department of Labor is hoping to change the way Americans treat our new parents, and urging us to essentially put our money where our mouths are.  Perhaps, in time, we will join almost ever other country in the world in providing the security of a paycheck to new parents, who already have the enormous task of raising a newborn in front of them.

No Charity Shown for Pregnant Employees by United Bible Fellowship Ministries

Although United Bible Fellowship Ministries claims its vision is to "be a visible, working, reflection of the body of Christ throughout the Houston area and the world by loving and glorifying God, serving others in love, and reaching out to those in need," that vision apparently doesn't include employing pregnant women.   

Sharmira Johnson, a former employee of the 501(c)(3) organization, was discharged after she became pregnant.  However, unlike many cases of pregnancy discrimination, which rely on circumstantial evidence, Ms. Johnson's claim rested on United Bible's written policy against pregnancy during employment.  

In fact, when Ms. Johnson informed her boss of her pregnancy, her boss gave her a memo entitled "Relief of Duty Due to Pregnancy."  U.S. Equal Employment Opportunity Commission v. United Bible Fellowship Ministries, Inc., 4:13-cv-02871 (S.D. Tex. May 19, 2015).  That memo further stated "in accordance to the Policy of Pregnancy in the Workplace,...you will be relieved of duty pending your pregnancy and that upon your delivery you will be eligible for rehire for any direct care position we have available at that time."  Id.  Ms. Johnson filed a charge of discrimination alleging sex and pregnancy discrimination, after which the EEOC pursued legal relief on her behalf.  

The case ended up pending in the United States District Court for the Southern District of Texas, where, after a bench trial, federal judge Vanessa D. Gilmore determined that United Bible violated the law.  The court awarded Ms. Johnson back pay as well as punitive damages, for a total of almost $75,000.  You can read more about the case here.

Although this case is somewhat unusual in the sense that most employers do not have policies that are so blatantly contrary to the law, it does serve as a good reminder for employers to periodically review their policies with legal counsel to ensure legal compliance. 

Walking the Fine Line: Drafting NLRA-Compliant Employment Policies

On March 18, 2015, the National Labor Relations Board's General Counsel issued Memo GC 15-04, shedding at least some light on the issue of what employment policies are permissible under the NLRA.  The last few years have seen the NLRB cracking down on employers with employment policies which reasonable employees would construe as limiting their right to engage in protected, concerted activity.  

The General Counsel speaks through examples, and through those examples, at least points out verbiage that the NLRB would find unlawful.  For example, the following policy language was held to be violative of the law:

  • Language prohibiting employees from discussing "customer or employee information" outside of work;  
  • Language requiring employees to "be respectful to the company, other employees, customers, partners, and competitors;" and
  • Language stating "[m]aterial that is fraudulent, harassing, embarrassing, sexually explicit, profane, obscene, intimidating, defamatory, or otherwise unlawful or inappropriate may not be sent by e-mail. ..."

Most employers are unlikely to see the danger in including the above statements in their handbooks until a charge has been filed against them by a current or former employee.  Furthermore, the parameters of lawful and unlawful employer policies are always being evaluated and better-clarified.  

In short, because this is a developing area of law, where it can be hard to identify potentially unlawful language, it can be difficult for employers to know how to comply. This is why it is crucial to have an attorney skilled in this area of law help you draft and evaluate employee policies.

Employers Can’t Act as Protectors for Pregnant Employees

The EEOC has achieved another resolution in a pregnancy discrimination case, this time against Washington-based agricultural grower, Tiny’s Organic.  A female worker, who had six years of experience at the company and had even been promoted to supervisor, was terminated 9 days after informing management that she was pregnant with twins.  Management expressed concerns for the employee’s safety, despite the fact that the employee’s doctor had released her to full duty work.  Pursuant to the conciliation agreement, the employer will have to pay $17,500 and engage in other training and remedial efforts.  You can read more about the conciliation agreement here. 

Employers are reminded that they cannot treat pregnant employees differently, even if the employers believe they are acting out of genuine concern for the safety of the employee and/or her fetus(es).  To do so risks violation of the Pregnancy Discrimination Act, as the Supreme Court held in Automobile Workers v. Johnson Controls, Inc., 499 U.S. 187 (1991).  If you are an employer who is concerned with compliance with the Pregnancy Discrimination Act, contact Thorpe & Thorpe, P.A. today.

EEOC Continues to Focus on Pregnancy Discrimination

The EEOC recently obtained $20,000 in relief for a pregnant employee who was on the job for less than 24 hours.  The employee, who was hired to work in the kitchen of an assisted living facility, told her supervisor on her first day of work that she was pregnant.  Within hours, she was terminated.  She was then replaced by a non-pregnant individual.  The EEOC took on the case, filed suit in federal court, and was able to reach an out-of-court resolution with the Mississippi-based employer.  You can read more about the conciliation here.

Because the EEOC has made pregnancy discrimination a top priority, and the law has recently changed in this area, it is essential that employers review their policies and practices to ensure legal compliance.  Likewise, if you are an individual who has suffered pregnancy-based discrimination, you should contact an attorney as soon as possible to discuss your rights.

Comcast Corporation Settles Charges of Sex and Race Discrimination

The Equal Employment Opportunity Commission pursued a claim against cable and internet giant Comcast, which is also a federal contractor, asserting that the provider discriminated against females by steering them toward lower-paying jobs and disproportionately failing to hire non-whites.  Although the events being prosecuted by the EEOC occurred in 2006 and 2007, the parties were not able to resolve the matter until April 30, 2015.  As part of that resolution, called a conciliation, Comcast will have to pay over $150,000 to affected individuals, and must commit to hiring at least 31 individuals of minority status. 

 

You can read more about the conciliation here.

Federal Contractors Must Include Sexual Orientation and Gender Identity in their Equal Employment Opportunity Statements

Executive Order 13672, signed by President Obama on July 21, 2014, mandates that federal contractors not discriminate against employees on the basis of their sexual orientation or gender identity.  The Order requires compliance for any federal contracts entered into on or after August 19, 2014.  If your work involves contracts with federal agencies, you may want to revisit your EEO statements to ensure compliance. 

 

You can read more about this requirement here.