Category: Title VII

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Title VII

Religious Rights in the Workplace: E.E.O.C. v. Abercrombie & Fitch Stores, Inc.

This post is the next in our series regarding recent cases from the U.S. Supreme Court.

Samantha Elauf is a practicing Muslim who wore a headscarf to her interview with Abercrombie & Fitch (“Abercrombie”). While she received a rating that qualified her to be hired, she was ultimately denied the position because her headscarf would violate Abercrombie’s “Look Policy,” which prohibited employees from wearing “caps.” Subsequently, the Equal Employment Opportunity Commission (“EEOC”), acting on Elauf’s behalf, filed suit against Abercrombie, alleging a violation of Title VII of the Civil Rights Act of 1964, which prohibits a prospective employer from refusing to hire an applicant because of the applicant’s religious practice when the practice could be accommodated without undue hardship. The lower court ruled for Abercrombie, holding that an employer could not be liable under Title VII unless the applicant provided the employer with actual knowledge of the need for an accommodation.

The question before the Supreme Court was whether the Title VII prohibition applies only when the applicant has informed the employer of his need for an accommodation. The Court reversed the lower court, holding that a job applicant seeking to prove a Title VII disparate treatment claim need only show that the need for religious accommodation was a motivating factor in the prospective employer’s adverse decision, and thus, they need not show that the employer actually knew that the applicant’s practice was a religious practice that required an accommodation. The Court went even further explaining that Title VII doesn’t just require the employers to be neutral when it comes to religious practices, but goes beyond that by giving religious practices “favored treatment,” which means that policies which would otherwise be neutral must “give way to the need for an accommodation” of an applicant’s religious practices.

This case is significant because, to date, it is one of the strongest statements from the Court on Title VII protections for religious discrimination, and as such, is a major victory for religious rights in the workplace.

 

 

 

Categories
Sex Discrimination Title VII

Workplace Accommodations for Pregnancy: The Supreme Court and Young v. UPS

This is the second post on recent Supreme Court cases.  This one is of special interest to me for two reasons.  First, I attended the oral argument at the Supreme Court in December.  Second, I’ve been asked to speak on this topic at the Judicial Conference for the U.S. Court of Appeals for the Sixth Circuit.  My presentation is in Detroit on Thursday of this week, but the following is a sneak peak.

Congress passed the Pregnancy Discrimination Act, or PDA, in 1978. The Act amended the definition of “on the basis of sex” in Title VII. 42 U.S.C. § 2000e(k). The Act has two parts. The first part explicitly defines “on the basis of sex” to include “pregnancy, childbirth, or related medical conditions.” The second part provides that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.” It also provides that a seniority or merit system provided for in other parts of Title VII cannot excuse this different treatment.

While the Supreme Court and other federal courts have examined the meaning of “pregnancy, childbirth, or related medical conditions” many times, the second, equal treatment provision had seldom been addressed before the recent decision in Young v. UPS. In 2014, the Young v. UPS case went before the Supreme Court, asking the Court to interpret this second part of the PDA. The Court’s March 25, 2015, decision does just that.

Peggy Young, the plaintiff in Young v. UPS, worked as a part-time delivery driver for UPS. As a driver, she was responsible for loading and unloading her van and making deliveries. In 2006, following two unsuccessful rounds of in vitro fertilization, Ms. Young requested leave to try a third round. When she became pregnant, she asked to extend her leave. During her leave, she indicated to her supervisor that she would be unable to lift more than 20 pounds for the first twenty weeks of her pregnancy or more than 10 pounds thereafter. Upon Ms. Young’s request for extended leave, UPS informed her that she would not be permitted to work as long as she had the 20-pound restriction, despite Ms. Young’s asserts that she rarely had to lift packages weighing more than 20 pounds and that coworkers had agreed to help her when necessary. Eventually, UPS informed Ms. Young that she would not be able to return to work until after she was no longer pregnant. She returned to work after giving birth.

Ms. Young’s suit revolves around three UPS policies. First, UPS defined the essential functions of driver as including the ability to lift up to 70 pounds and assist in lifting up to 150 pounds. Second, under a collective bargaining agreement, UPS must provide light duty to employees who are injured on the job or suffer from permanent impairments cognizable under the ADA; this provision specifically does not include pregnant workers. Third, another collective bargaining agreement provision required that UPS give an “inside job,” which is not considered light duty, to drivers who lost their certification due to a failed medical exam, lost or suspended driver’s license, or involvement in a car accident. Ms. Young asserts that, because UPS’s policies, which allow light duty for on-the-job injury and disability but not for pregnancy, violate the PDA by failing to treat pregnant women the same “as other persons not so affected but similar in their ability or inability to work.”

The district court ruled in favor of UPS on summary judgment; on appeal, the Fourth Circuit affirmed. The Fourth Circuit found that UPS’s policy of limiting accommodations to workers injured on the job, disabled, or without certification was “pregnancy-blind.” Turning specifically to the second clause of the PDA, the court then concluded that the potentially broad language was limited by the specific definition in the first clause. The court determined that the PDA worked only to expand the definition of “sex” to include pregnancy, not to allow special treatment for pregnant workers above that accorded to other workers who may also suffer disqualified illness or injury. Thus, the court held, the second section did not create a separate cause of action. In doing so, the Fourth Circuit explicitly declined to follow Sixth Circuit precedent in Ensley-Gaines v. Runyon, 100 F.3d 1220 (6th Cir. 1996), where the Sixth Circuit held that showing a pregnant plaintiff was treated differently than a nonpregnant employee similar in their ability or inability to work established a prima facie case of pregnancy discrimination.

            The Supreme Court specifically addressed the following question: The PDA requires giving the same accommodations to an employee with a pregnancy-related work limitation as it would give that employee if her work limitation stemmed from a different cause but had a similar effect on her inability to work. Suppose the employer would not give that pregnant employee the same accommodations as another employee, but the employer’s reason for the difference in treatment is that the pregnant worker falls within a facially neutral category (for example, individuals with off-the-job injuries.) What is a court then to do?

Young argued that the second clause of the Act should be interpreted broadly and literally. She argued that as long as an employer accommodates only a subset of workers with disabling conditions, pregnant workers who are similar in the ability to work must receive the same treatment, even if still other nonpregnant workers do not receive accommodations.

UPS argued that the second clause does no more than define sex discrimination to include pregnancy discrimination.

Ultimately the Court did not accept either interpretation. It found that Young’s approach would grant pregnant workers a “most-favored-nation” status, which could not have been Congress’ intent in passing the PDA. Adopting UPS’ interpretation of the second clause would render the first clause superfluous, which the Court chose to avoid. The Court also declined to follow the EEOC’s July 2014 guidelines which provided an example of disparate treatment of pregnant workers that mirrored the facts in Young’s case exactly. Specifically because these EEOC guidelines were released after the Court granted certiorari in this case and took a position about which the previous guidelines were silent, the Court did not rely on them.

Rather, the Court held that a plaintiff alleging that the denial of an accommodation constituted disparate treatment under the PDA’s second clause may make out a prima facie case by showing, as in McDonnell Douglas that she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others “similar in their ability or inability to work.” The employer may then seek to justify its refusal to accommodate the plaintiff by relying on legitimate, non-discriminatory reasons for denying her accommodation. That reason normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those whom the employer accommodates.

If the employer offers an apparently legitimate, non-discriminatory reason for its actions, the plaintiff may in turn show that the employer’s proffered reasons are in fact pretextual. A plaintiff may reach a jury on this issue by providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers and that the employer’s legitimate nondiscriminatory reasons are not sufficiently strong to justify the burden. What is a significant burden? The Court says the plaintiff can create a genuine issue of material fact as to whether a significant burden exists by providing evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers.

The Court found a genuine material dispute as to whether UPS provided more favorable treatment to at least some employees whose situation cannot reasonably be distinguished from Young’s. Therefore it vacated the judgment of the Fourth Circuit and remanded the case for decision based on the new interpretation.

Categories
Sex Discrimination Title VII Uncategorized

Michael’s Take on the Hobby Lobby Case

With all the drama that comes from handing down a major decision on the last day of the term, the US Supreme Court issued the much awaited Hobby Lobby decision. Those on the right hailed it as a victory for individual liberty. Those on the left bemoaned the impact that it would have on the healthcare system. In my opinion, the truth lies somewhere in the middle.

The issue was whether a closely held corporation enjoys some or all of the religious protections of the First Amendment. Proponents of the Affordable Care Act argued that companies are not persons. Therefore, they don’t have individual rights. The Supreme Court disagreed. Writing for the majority, Justice Alito said “a corporation is simply a form of organization used by human beings to achieve desired ends.” Therefore, under the First Amendment, closely held corporations cannot be required to provide coverage for contraceptives in their health care plan if that violates their sincerely held religious beliefs.

Sounds simple, right? The implications, however, can be far-reaching. What if a company says it violates their religious beliefs to employ African-Americans? What if the company says it violates their religious beliefs to employ women? What if the company says it is against their religious belief to employ Christians? Taken to an extreme, the reasoning of the Hobby Lobby opinion could produce scary results. At least for now, the decision certainly does not go this far.  It specifically acknowleges that it is a narrow holding.

It does raise a number of questions that those who celebrate the decision might want to consider. There are those with sincerely held religious beliefs who contend it is immoral to have blood transfusions. Does that mean that life-saving blood transfusions should be unavailable to employees of companies who are owned by individuals holding such beliefs? There are religions that believe it is immoral to have virtually any medical care. What happens to their employees?

These are questions that will have to wait for another day. They will surely, at some point, make their way through the courts.

Categories
Sex Discrimination Title VII

The Employment Non-Discrimination Act (ENDA) Passes the Senate

Today, the United States Senate passed the Employment Non-Discrimination Act (ENDA). This piece of legislation had laid dormant for some time. It passed the United States House of Representatives in 2007, but was never passed by the Senate. Now that the current version of the bill has passed the Senate, it must go for approval in the House.

ENDA prohibits discrimination based on sexual orientation and sexual identity. In other words, it extends the employment discrimination prohibition of Title VII, which prohibits discrimination based on race, sex, religion or national origin, to those workers who are gay, lesbian, or transgender.

The bill passed the Senate rather easily, including receiving a number of Republican votes. Republicans Susan Collins and Mark Kirk were co-sponsors of the legislation. Republicans Lisa Murkowski and Orin Hatch were also early supporters. Senator Hatch’s support is especially noteworthy, as he is generally not viewed as a more progressive member of the Republican Party.  The final vote tally was 64-32, with ten Republicans voting “yes.”

ENDA now goes to the House of Representatives, where it faces a much more uncertain future. Speaker Boehner has indicated that he opposes the bill and likely would not bring it up for a vote. However, the possibility that it could be attached to another piece of legislation still exists.

This is worth keeping our eyes on. ENDA would potentially alter the landscape of employment discrimination law. Now that it has passed the Senate, we must wait on the House. That could be a long wait.

Categories
Age Discrimination (ADEA) FLSA Title VII

Employment Agreements that Limit a Statute of Limitations. Enforceable?

Employers love arbitration agreements. Employers are beginning to love agreements that have provisions that limit an employee’s statute of limitations. The Sixth Circuit just handed down a decision that addressed such an agreement from Federal Express. In that case, Boaz v. FedEx Customer Information Services, Inc., et al., the Plaintiff filed a Fair Labor Standards Act and Equal Pay Act case. Federal Express tried to convince the court to dismiss the FLSA case because it was brought more than six months after the statute of limitations.

The case involved claims under both the FLSA and the Equal Pay Act. Many people associate the Equal Pay Act with discrimination lawsuits. However, for purposes of this case, it is important to remember that the Equal Pay Act was an amendment to the FLSA. The Sixth Circuit framed the issue as follows: “Although Boaz’s claims were timely under the multi-year limitations. Under those Acts, her claims were untimely under the six month limitations in her employment agreement.”

Her employment agreement said “to the extent the law allows an employee to bring legal action against Federal Express Corporation, I agree to bring to that Complaint within the time prescribed by law or six months from the date of the event forming the basis of my lawsuit, whichever expires first.”

Because the lawsuit was filed after the six month limitation, Federal Express thought they had a get-out- of-jail-free card.

Fortunately for the employee, the Sixth Circuit did not agree. The Sixth Circuit said that “the issue is whether Boaz’s employment agreement operates as a waiver of her rights under the FLSA.” They noted that employees may waive their rights under Title VII. However, employees cannot waive their rights under the FLSA. Therefore, they reasoned that the six month limitation period is not valid in an FLSA case. This left the question of whether the Equal Pay Act claim was also barred. While an employee can waive a claim under Title VII, the Sixth Circuit said that the Equal Pay Act is different. The Equal Pay Act was an amendment to the FLSA. Because the statute of limitation cannot be contractually shortened for FLSA claims, it cannot be contractually shortened for Equal Pay Act claims either.

What is the takeaway? Employers can have contracts that shorten the statute of limitations for some claims, such as Title VII. However, an employer cannot have a contract that shortens the statute of limitations for a Fair Labor Standards Act case in the Sixth Circuit. Likewise, because the Equal Pay Act was an amendment to the FLSA, Equal Pay Act claims also cannot be subject to contracts that shorten the statute of limitations. The court does not say so, but presumably the Age Discrimination in Employment Act is similar to the Equal Pay Act. It also is based on the statutory construction of the Fair Labor Standards Act.

There are two other nuggets the Sixth Circuit addressed in the Boaz case. However, you will have to stay tuned for our next blog post to find out about those.

Categories
Sex Discrimination Sexual Harassment Title VII

Vance v. Ball State Part 3: What does it mean to prevent sexual harassment?

Here’s my final installment of my thoughts on the recent Supreme Court case addressing an employer’s liability for supervisor sexual harassment.  In a case of co-worker sexual harassment, the question is largely one of negligence.  The Supreme Court had some comments about establishing an employer’s negligence.  They said:

In any event, the dissent is wrong in claiming that our holding would preclude employer liability in other cases with facts similar to these. Assuming that a harasser is not a supervisor, a plaintiff could still prevail by showing that his or her employer was negligent in failing to prevent harassment from taking place. Evidence that an employer did not monitor the workplace, failed to respond to complaints, failed to provide a system for registering complaints, or effectively discouraged complaints from being filed would be relevant. Thus, it is not true, as the dissent asserts, that our holding “relieves scores of employers of responsibility” for the behavior of workers they employ.

Wow!  There’s some good stuff in there for employee rights advocates.  First, “preventative measures” has been thought of as part of the employer’s affirmative defense in a supervisor harassment case.  The Vance Court says that an employer is liable – not only if they are negligent in addressing the harassment – but also if they are negligent in preventing it.  Second, they provide a very useful list of things that an employer should do to prevent harassment:

–          Monitor the workplace for sexual harassment

–          Respond to complaints

–          Provide a system of registering sexual harassment complaints

–          Encourage (rather than discourage) complaints of sexual harassment

The first and third items on this list are noteworthy.  What if a plaintiff shows that an employer did not have a protocol in place to monitor the workplace for sexual harassment?  Is the employer liable?  Must the employer have a formal registry of all sexual harassment complaints it receives?  The Supreme Court suggests that the answer to these questions is . . . yep.

This blurs the line between co-worker harassment and supervisor harassment.  Proving that an employer did not adequately monitor the workplace for sexual harassment might now be enough to prove negligence and lack of preventative measures.  This would allow the plaintiff to prevail regardless of whether the offender is a co-worker or supervisor.  While the Vance opinion is generally thought to limit an employer’s exposure in sexual harassment cases, this language from Vance might do the exact opposite.

Categories
Sex Discrimination Sexual Harassment Title VII

Vance v Ball State Part 2: What to Make of Footnote 8

In our last blog post, we looked at the US Supreme Court’s decision in Vance v. Ball State. Very generally, Vance says that a “supervisor” under sexual harassment law must be someone who has the authority to hire and fire.

This was not welcome news to employee rights advocates. In my last blog post, I suggested that all of the news from Vance was not bad. This brings us to the Supreme Court’s peculiar footnote 8.

Footnote 8 addresses a situation where an alleged supervisor cannot hire and fire but does have the authority to make hiring and firing recommendations that are given weight. In footnote 8, the Supreme Court suggests that people who have such advisory authority would be “supervisors,” even though they do not personally have the authority to hire and fire.

If footnote 8 means what it says, then the Vance decision could be interpreted very differently than many commentators are now assuming.

Footnote 8 would allow lower courts to understand the term “supervisor” to include those people who have  the ear of those who make hiring and firing decisions, even if he or she does not have that authority themselves. This seems like a rational conclusion. Expect employee rights advocates to advance this interpretation.

So, what to make of footnote 8?  It suggests a more common sense reading of the Vance decision that some folks are advancing.  To take advantage of it, however, counsel for employees must do the hard work in discovery.  We must show that a “supervisor” really is a “supervisor.”  In other words, find out whether they have the ear of the upper management.  Find out whether their advise regarding “hiring” and “firing” is given weight.  Find out if they are classified as FLSA exempt.  If so, this may be probative of the fact they can cause a termination, especially if they are classified as exempt under the executive exemption.  Footnote 8 in Vance can be valuable tool, but only if it is used.

Categories
ADA & ADAA Age Discrimination (ADEA) Bankruptcy Discovery FMLA Overtime/Wage & Hour Retaliation Sex Discrimination Sexual Harassment Title VII Uncategorized Whistleblower Law

17th Annual TBA Labor and Employment Forum

Here’s a great CLE opportunity that will cover a ton of labor and employment topics.  The 17th Annual TBA Labor and Employment Forum is April 12 in Nashville.  I will be speaking about current developments in wage and hour law. 

This is my second year to speak at this event, and it’s an honor to be included among such great employment lawyers from across the state.  This year, the line-up of speakers includes  Judge Clifford Shirley, John Bode, Bob Boston, Stan Graham, and Mark Travis.  Register at http://tinyurl.com/azdyxcl

Categories
ADA & ADAA Age Discrimination (ADEA) Bankruptcy Sex Discrimination Title VII

The Plaintiff’s Bankruptcy Schedule – A Defendant’s Windfall?

Many victims of discrimination must file bankruptcy if they cannot obtain work. 

Those bankruptcy filings can be dangerous.  The schedule of assets and liabilities presumes the new debtor will disclose a wrongful termination lawsuit as an “asset.”  Often, that does not occur.

The failure to disclose a potential lawsuit can occur for any number of reasons:  (1) the debtor not understanding that a contingent legal claim, even if not yet pursued in court, is an “asset”; (2) believing a discrimination lawsuit must be filed in court before it becomes an asset for a bankruptcy; (3) relying upon a hurried bankruptcy paralegal to fill out the forms; and (4) not even knowing a discrimination case exists at the time of the bankruptcy filing.

Why does the schedule matter so much?  Because, legally, filing bankruptcy creates an estate.  The assets of the estate, including any wrongful termination claims, no longer belong to the debtor.  They are property of the estate, and they include “all legal or equitable interests of the debtor in property as of the commencement of the case.”  11 U.S.C. § 541(a)(1).   

See the issue yet?  Yep, it’s one of standing to sue.  Filing a wrongful termination suit where the lawsuit was not first disclosed in bankruptcy can result in a legal challenge by the former employer for lack of standing to sue. 

So, what should experienced Plaintiff’s counsel do if he/she learns that a victim of employment discrimination has filed bankruptcy?

  • If the bankruptcy is still ongoing, check the bankruptcy schedules to see whether the potential lawsuit has been disclosed.  If not, amend the schedule to include the lawsuit and surrounding information.  Then, with the cooperation of the Bankruptcy Trustee, file the discrimination lawsuit.
  • If the bankruptcy already has been discharged, check the bankruptcy schedules to see whether the discrimination claim was disclosed in the first place. 
    • If it was, then the bankruptcy Trustee has chosen to “abandon” the discrimination claim and the individual regains standing to file the lawsuit. 11 U.S.C. §554(c); Auday v. Wet Seal Retail, Inc., 2012 U.S. App. LEXIS 22180 (6th Cir. Tenn. 2012).  
    • If the discrimination claim was not disclosed in bankruptcy, consider reopening the bankruptcy estate and making the claim known.  The Trustee may choose to abandon it, or may choose to pursue it.  If the Trustee makes known its intention to abandon, the plaintiff may fairly argue she has standing.  If the Trustee pursues the claim, the Trustee will likely cooperate with the filing of a discrimination suit in order to recover proceeds for creditors.  Technically, the Trustee becomes the “Real Party in Interest” in this situation, but the lawsuit is preserved and any recovery beyond the bankruptcy debt will revert to the debtor.

In summary, it pays to closely evaluate the bankruptcy schedule before filing a discrimination lawsuit.  Do not assume the bankruptcy attorney listed a discrimination lawsuit, or that the client’s ignorance of bankruptcy schedules will be a safeguard.  Instead, be proactive, fixing the schedule where necessary, even if the bankruptcy has already been discharged.

Categories
Sexual Harassment Title VII

Supreme Court Hears Argument in “Supervisor” Harassment Case

On Monday, the U.S. Supreme Court heard oral arguments in a sexual harassment case, Vance v. Ball State University, that will decide who is a “supervisor” for purposes of sexual harassment law.  A day later, my good friend and Nashville lawyer J.K. Sims (who represents employers in sexual harassment cases) was sworn into the bar of the U.S. Supreme Court.  Two ground breaking events in one week.  Washington will never be the same.

Anyway, back to the sexual harassment case. As I mentioned in a previous post,  sexual harassment law is very different depending on whether the harasser is a “supervisor” or “co-worker.”  You can read more about the importance of this distinction in my other post.

One of the primary issues is whether a person must have the authority to hire and fire in order to be a “supervisor.”  The Seventh Circuit said, “yes.” Interestingly, even the lawyer for the defendant seemed to concede that this would be too restrictive of a definition.  Justice Roberts suggested that he might favor a definition of “supervisor” that was more narrow than either lawyer was advocating.  He acknowledged that a requirement that a supervisor be able to hire and fire might lead to some “harsh” results, but he suggested that such a bright line rule might nevertheless bring some certainty to the law.

Justice Kagan, who was previously dean of Harvard Law School, pointed out that professors do not have the authority to hire and fire their assistants.  Therefore, such a bright line rule would lead to a situation where a professor could make life a “living hell” for his assistant, yet not be a “supervisor” for purposes of sexual harassment law.  Such a result would seem silly.

It remains to be seen whether this opinion will drastically change sexual harassment law.  Despite the suggestions of Justice Roberts from the bench, my guess is that the Court will adopt some sort of case case-by-case test that will give great deference to the trial courts in making these decisions.