sexual discriminationWho, What, Why . . .

Who does it apply to: The law applies to all employers with 15 or more employees.

What is the issue: Title VII was passed in the 1960s to protect against discrimination based on race, color, religion, sex or national origin.

What am I required to do: Employers are required not to discriminate against employees on the basis of sex. More specifically, employers are required not to treat an employee adversely because of his or her sex in relationship to any significant aspect of employment.

What constitutes a violation: There are two kinds of violations – direct mistreatment and disparate impact. Direct mistreatment is straightforward. If an employer affirmatively mistreats an employee because of sex by failing to hire, firing, demoting or any other type of significant slight someone might dream up, it can be actionable as sex discrimination.

Disparate impact is more subtle. If an employer creates a policy that is neutral or non-discriminatory on its face, that policy might have a consequence of negatively impacting workers of one sex more significantly than others. If an employer institutes a policy that it prefers to hire people with military service, the policy itself does not seem discriminatory because it may affect any applicant. That said, there are statistically fewer women in the military and hence the rule has an adverse effect on women applicants. This facially neutral rule has a disparate impact against female applicants and may create a claim.

What counts as a sex: The answer appears straightforward but really is not. While homosexuality and gender identity are not expressly protected under Title VII, actions based on sexual stereotypes are permissible. For example, if a man brings a claim for being treated differently becuase he does not act manly enough (instead of alleging discrimination based on homosexuality) a jury may be allowed to award damages.

What if my employee violates without consent: Choose carefully who you place in charge. Employees placed in positions of authority with the power to control the circumstances of other employees are not personally liable. Their liability is placed with the employer even if the employee acts without authority. The same is true of independent contractors (whether properly characterized or not) placed in positions of authority over employees.

What if gender is a requirement of the job: Sometimes a person’s sex may affect their ability to get a job based on a Bona Fide Occupational Qualification (BFOQ). There are, however, very few circumstances where such a requirement will stand up in court outside of the entertainment industry in which a particular sex is cast for a role. BFOQs are complicated and you should always check with your employment counsel before implementing one.

Can retaliation play a part: Title VII protects employees who engage in protected activities such as supporting another employee’s claim of discrimination, resisting instruction to discriminate, and filing a complaint about discrimination with the employer or EEOC. Employers cannot negatively impact a significant aspect of employment for an employee who supports another’s sexual identity or their complaint against sex discrimination. Employers also cannot retaliate against an employee for complaining of sex discrimination or making a charge of sex discrimination with the EEOC.

What about harassment: Even if an employer does not discriminate against an employee directly, the employer may be liable if its employees harass an employee about his or her sex. Sex harassment is such a pervasive concern that it receives its own topic. See the Employer Handbook edition on Sex Harassment for more guidance.

Common Situations:

Babymaker: Doowe Cheatum & Howe is a prestigious law firm filled with go-getter attorneys that are willing to sacrifice almost anything for their careers. The few women working at the firm gave up on having children from the outset to convince the firm’s leaders they would not take time to raise a family. Can the firm select only women disinterested in having children? Of course not, but businesses do it every day.

I ain’t working for her: Tom’s Construction is looking for a new superintendent to oversee two of its crews. Megan, a well qualified graduate of Texas Tech’s Construction Engineering department, applies for the position. Tom, who is interviewing applicants, takes a moment to call Megan to let her know she
shouldn’t get her hopes up because he simply cannot hire a woman for the position even though she is well qualified. Tom tells Megan almost apologetically, “Those men won’t work for a lady.” Has Tom strayed out of bounds? Yep. While we can identify with the concern he raises, it is Tom’s job to create an
environment in which women can work side by side with men, even if it means he has to make changes to his crews.

Equal pay: Sally has worked for Bob’s Banjos for 23 years. Ted started with the company at about the same time. Each has risen to the job of Shift Manager, yet while at lunch one day, Ted mentions to Sally how much he earns – 10% more each year. Does Sally have a claim? Yes, it is sex discrimination, but it is
also a violation of the Equal Pay Act, covered in more detail in the Employer Handbook edition on that topic.

What Should I Do:

Good: Count up your workers every few months to know whether the law applies to you. Once you have more than 15 employees institute an anti-discrimination policy including sex discrimination.

Better: In addition to developing a policy, control who is permitted to interview and make material decisions about employees to be sure they are aware of the concerns of sex and other discrimination.

Best: In addition to the items above, create job descriptions for each position. Use the job descriptions to prepare advertisements for positions, to ask objective interview questions, and to create a uniform and objective performance review system to avoid accidentally discriminating against someone based on sex.

On September 25, 2014, the EEOC filed lawsuits in Florida and Michigan accusing employers of discriminating against transgendered employees. These are the first two cases ever filed seeking to protect transgender workers under Title VII.

In the Florida Case, EEOC v. Lakeland Eye Clinic,  the EEOC claims that Lakeland terminated an employee, Branson, in violation of Title VII. Specifically, the lawsuit alleges that “[a]t the time of hire, Branson presented as male (e.g., used the male name ‘Michael,’ wore male attire, and otherwise appeared to conform to traditional male gender norms).” During the course of employment, however, Branson began identifying herself as a female, and presented herself as female. She also informed Lakeland that she was undergoing a gender transition and was in the process of legally changing her name from Michael to Brandi. Lakeland claimed that Branson’s position was being eliminated.  The EEOC, however, alleges that Branson was discriminated against because of sex when she was terminated because she was replaced by a male in the same position two months later.

The Michigan Case is similar to the Florida case. In EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., a funeral home fired an employee who presented himself as male at the time he was hired but was terminated two weeks after the employee notified her employer that she planned to undergo a gender transition and planned on presenting herself as female—wearing female clothes and conforming to female gender roles. In the lawsuit, the EEOC alleges that the employer terminated the employee by “telling her that what she was ‘proposing to do’ was unacceptable.”

Two years ago I wrote about the EEOC’s position on protecting transgender employees.  These cases are proof the EEOC was serious.  If successful, the EEOC will have legal precedent to rely upon to pursue employers under a broader definition of “sex discrimination” under Title VII. Employers must think twice before terminating an employee for making the decision to change gender. I strongly recommend employers check with counsel to obtain guidance about how to proceed if this issue presents itself.

The Fifth Circuit Court of Appeals recently updated employees’ guide to southern manners. Don’t worry, employees should still say “yes ma’am” and “no ma’am.” But you know the old saying that you should never discuss politics or religion at work? Well employees better forget that saying ever existed. Not only should employees discuss their religion at work, they should make their religious beliefs known to management when religious accommodations are necessary. Yes. You read that right. Employees should tell their bosses about their specific religious beliefs to establish their inclusion in a protected class.

In Nobach v. Woodland Village Nursing Center, Inc., et al., the Fifth Circuit ruled that if a company’s decision makers involved in an employee’s termination are unaware of the employee’s religious beliefs, then the company cannot be liable for religious discrimination. Nobach, a certified nurse’s aide at Woodland Village Nursing Center, was terminated for refusing to pray the rosary with a patient. Nobach refused because she was a former Jehovah’s Witness and still held many of the same beliefs.

Unfortunately, Nobach made a big mistake. She didn’t discuss her religious beliefs with her boss. I know most people are thinking, “well of course she didn’t!” But the Court held that because the managers involved in her termination were not made aware of her religious beliefs until after her termination, they could not have discriminated against her based on those beliefs. So the Fifth Circuit overturned her sizeable monetary award granted by a jury.

Employers, I’m not suggesting that you go out on a “witch hunt” and attempt to identify the religious beliefs of all of your employees. I’m suggesting quite the opposite. While most employers know not to ask about these sensitive issues in an interview, if a current employee does not tell you about their religious beliefs or need for a religious accommodation, DON’T ASK! This is one case where what you don’t know actually can’t hurt you. If you’re not aware of someone’s inclusion in a protected class—age, sex, religion, race, color, ethnicity, pregnancy, military status, disability, genetic information, and national origin—then it will be hard for a court to find that you to discriminated against an employee without knowledge of their protected status. Now you can’t turn a blind eye or bury your head in the sand. But some classes are more discreet than others. Obviously, if an employee is wearing a burqa and refuses to pray the rosary – you probably have some idea that the employee was may be Muslim (and, hence against her religious beliefs).

That said, employers need to have open lines of communication with management teams. If a manager learns about someone’s religious beliefs, national origin, or other inclusion in a discreet protected class, there needs to be policies and procedures in place that require reporting up the food chain. Such policies will allow upper management to avoid unlawful discrimination and protect the company from potential lawsuits.

For those who missed it, “Losing My Religion” is the title of a 1991 REM song.  I forget that some people who read this won’t be of my vintage.

Who, What, Why . . .

Who does it apply to: The law applies to all employers with 15 or more employees.

What is the issue: Title VII was passed in the 1960’s to protect against discrimination based on race, color, religion, sex or national origin. Since that time, other laws have been passed adding protection against discrimination toward other groups. The Pregnancy Discrimination Act (“PDA”) was passed in 1978 to modify Title VII to specifically protect against discrimination based on . . . you guessed it . . . pregnancy.

What am I required to do: Employers are required not to discriminate against employees on the basis of “pregnancy, childbirth, or related medical conditions.” More specifically, employers are required not to treat an employee adversely because of these characteristics in relationship to any significant aspect of employment.

What constitutes a violation: There are two kinds of violations – direct mistreatment and disparate impact.  

  • Direct mistreatment is straightforward. If an employer affirmatively mistreats an employee because of pregnancy by failing to hire, firing, demoting, or any other type of significant slight someone might dream up, it can be actionable as pregnancy discrimination.
  • Disparate impact is more subtle. If an employer creates a policy that is neutral or non-discriminatory on its face, that policy might have a consequence of negatively impacting pregnant workers more significantly than others. An employer policy that employees who like pickles and ice cream together must be fired, is not discriminatory on its face because it may affect any worker. That said, conventional wisdom suggests that pregnant women like strange food combinations during pregnancy. This facially neutral rule has a disparate (greater) impact on pregnant workers and may create a claim for discrimination against the employer as to all pregnant employees. Of course, in the real world, the policy, the violation, and the impact will likely be much more subtle so these claims are often much more complicated to bring.

What if my employee violates without my consent: Choose carefully who you place in charge. Employees placed in positions of authority with the power to control the circumstances of other employees are not personally liable. Their liability is placed with the employer even if the employee acts without authority. The same is true of independent contractors (whether properly characterized or not) placed in positions of authority over employees.

Hasn’t this law been in the news lately: Why, yes. Yes it has. The Equal Employment Opportunity Commission (“EEOC”) recently issued new “guidance” for employers regarding the scope of protection for women under the PDA. Even though the PDA does not provide any of these protections in writing and pregnancy is not a “disability,” the EEOC has decided it will enforce the PDA as though pregnant employees must be given the same protections a disabled person is provided under the Americans with Disabilities Act (“ADA”). 

Specifically, the EEOC now insists that employers “reasonably accommodate” pregnant employees. For example an employer would need to redistribute non-essential functions of the pregnant employee’s job duties to others, modify a pregnant employee’s work schedule to take more breaks, or modifying equipment or seating to make the workspace more comfortable for pregnant employees. Additionally, the EEOC wants employers to implement light duty policies for pregnant workers to allow for different job duties during pregnancy or an altered work schedule.

Do I have to follow the EEOC guidance: Yes and no. While the EEOC’s guidance will probably not stand up in court as the law exists right now, it will cost a lot of money to fight it. Plus, there is a law proposed in Congress now entitled the Pregnant Worker Fairness Act which would essentially make the EEOC’s guidance law. In a year or so, the legal requirements will likely match the EEOC’s guidance so it can’t hurt to start abiding by the rules now.

Common Situations:

Maternity Leave: Doulas United is a small, Austin based, company providing pregnancy coaching for expectant mothers. Natasha, one of the company’s coaches, has, herself, become pregnant. When the time comes for Natasha to have her baby, she asks for maternity leave to care for her new child. Operating on a bit of a double standard, Doulas tells her the company just can’t afford to grant her time off. If she leaves to care for her newborn, her position will be given to someone else. Natasha makes a claim under the PDA. Is she in for a payday? Nope. The PDA only prevents discrimination. Doulas does not have 50 employees so the federal Family Medical Leave Act (which grants up to 12 weeks unpaid leave) does not apply. With no maternity leave law in Texas, Doulas can let Natasha go without creating a legal issue if she fails to return immediately to work.

Take that, EEOC: Anger Management Trainers, Inc. (“AMT”) hates government intervention and refuses to kowtow to the EEOC’s new guidance. When Sue asks for a new keyboard and desk set up as a reasonable accommodation of her pregnancy-related carpal tunnel syndrome, AMT management tells her to jump in a lake. Has AMT jumped into troubled waters? Unfortunately, yes. Even though the EEOC’s guidance is not law and won’t likely stand up in court at this time, Sue’s request is protected under the ADA. All pregnancy related illnesses are likely disabilities within the meaning of that law and reasonable accommodation must be afforded the employee.

Octomom: Billy operates Billy Bob’s Breeding, a thoroughbred horse breeder. Lilly has been a rising star in the company, but has become pregnant and plans to have more children. Billy, a father himself, treats Lilly perfectly during pregnancy and gives her three month’s maternity leave even though his company is not required to do so. Billy even pays Lilly ½ wages during her leave. When she returns, Billy welcomes her back into the company. Months later, however, when it comes time to choose a manager for the company so Billy can take more time off, Billy selects a male employee who is barely qualified. He just doesn’t feel that he can count on Lilly to handle the reigns with her new baby and plans for a bigger family. Has Billy erred? Yes. Even though he treated Lilly properly during pregnancy and immediately after, he cannot retaliate against Lilly for her pregnancy and plans for a large family.

What should I do:

Good: Count up your workers every few months to know whether the law applies to you. Once you have more than 15, institute an anti-discrimination policy including pregnancy discrimination.

Better: In addition to developing a policy, control who is permitted to interview and make material decisions about employees to be sure they are aware of the concerns of pregnancy and other discrimination.

Best: In addition to the items above, create job descriptions for each position. Use the job descriptions to prepare advertisements for positions, to ask objective interview questions, and to create a uniform and objective performance review system to avoid accidentally discriminating against someone based on pregnancy.

Remember that cruise ship that sank off the coast of Italy last year?  Remember the bumbling captain that ran the ship aground, cost the lives of 32 people, and abandoned the ship before his passengers?  His name is Francesco Schettino and the cruise line he worked for let him go immediately after the incident.  He is is facing charges of the European equivalent of manslaughter, but he is now suing for WRONGFUL TERMINATION!

Seriously?  Seriously.  Schettino’s lawyer, Bruno Leporatti reports to Reuters News:  “It is the right of every worker to appeal against his dismissal and Capt. Schettino has done no more than exercise that right.”

Well maybe, but that seems to be the way things are in Europe.  I really wasn’t planning to address this as a topic until I spoke with a former US, now French, attorney this week and asked about the differences.

I always thought it was less costly to run a business in Europe where they don’t have protections like the ADA, ADEA, and Title VII.  You simply don’t have to worry about those types of claims as much. Apparently I was wrong.  Instead of having many separate laws protecting employees, all of the claims are couched in terms of “wrongful termination” that allow this type of claim and was informed that virtually all European citizens make a claim for wrongful termination.  According to the attorney I spoke with, almost every European employer simply negotiates a severance agreement with their employees to avoid what they know will be the cost of even a poorly executed suit like Schettino is bringing against the cruise line.

Thankfully, Texas does not recognize a claim for wrongful termination.  At-will employment prevails allowing both employees and employers to terminate the relationship at any time.  Employers still have to worry about discrimination claims, but there are very few other claims an employee can make.   With many business owners lamenting the effects of Obamacare, it is nice to know there may still be a few reasons things are better over here.