Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘EEOC’

"Bow at the Altar . . . of Political Correctness"

Thursday, October 24th, 2013

philip_miles_smallGender stereotyping claims, meet the super-manly world of ironworkers – men’s men. Macho men. Masculine men. What “real men” should be (you get the idea). In EEOC v. Boh Brothers Construction Co. (opinion here), the Fifth Circuit, sitting en banc, provided us with 68 pages of analysis on same-sex gender stereotyping harassment.

Let’s start with the harassing conduct. The crew superintendent called the plaintiff “pu–y,” “princess,” and “fa–ot”; often approached him from behind and simulated intercourse; exposed his penis while urinating in front of him; and teased him for using Wet Ones instead of toilet paper because (and I quote) that’s “kind of gay.”

The majority concluded that the evidence was sufficient to support a jury verdict that the defendant was liable for the harassment under Title VII. The divergent opinions in this case highlight a rift among judges when analyzing “shop talk” types of cases. One particular dissent pulled no punches in its condemnation of the majority (pardon the lengthy cut-and-paste, but this really highlights the differences among the judges):

By deftly extending the applicable law, Judge Elrod and the en banc majority—with the best of intentions—take a deep bow at the altar of the twin idols of political correctness and social engineering. Because that is a demonstrable departure from reason and experience and imposes an unsustainable burden on private employers in Texas, Louisiana, and Mississippi, I respectfully dissent . . . .

In a world in which comments on Wet Wipes or pink shirts can be considered discrimination on account of sex, the American workplace becomes more like a prison than a place for personal achievement, individual initiative, and positive human interaction; one’s speech is chilled as a condition of keeping one’s job. As Judge Jones accurately observes, the majority opinion “portends a government-compelled workplace speech code”—“a ‘code of civility’ [imposed] on the American workplace.” Instead of resisting such an Orwellian regime, in which Big Brother (in the form of the EEOC or otherwise) constantly monitors the worksite to detect “improper” words and thoughts, the en banc majority fosters it without Congressional mandate.

The hypersensitivity that is blessed unintentionally by the majority nudges the law in a direction that hastens cultural decay and undermines—if even just a little bit—an important part of what is good about private employment in the United States. Societies, and the legal systems of which they are mutually supportive, decline slowly, but ultimately with tragic consequence: “Not with a bang but a whimper.”

Wow, tell us how you really feel! So, what’s the takeaway for employers? Crackdown on same-sex harassment and gender stereotyping. The dissent demonstrates that employers might have a receptive ear in litigation – but trust me, if you’re counting votes at a circuit court in an en banc review of a jury verdict then you’ve already lost even if you win. That type of legal battle doesn’t come cheap.

This article was originally printed on Lawffice Space on October 11, 2o13.  Reprinted with permission.

About the Author: Philip K. Miles III, Esq. is the creator of Lawffice Space.  He is an attorney with McQuaide Blasko, a full-service law firm headquartered in State College, Pennsylvania.  He belongs to the Labor and Employment, and Civil Litigation Practice groups.  Lawffice Space is an independent law blog focusing on labor and employment law.

Hijab accommodation: Will Abercrombie's victory stand?

Wednesday, October 9th, 2013

robin sheaAbercrombie & Fitch has won a huge victory in one of its Muslim hijab-accommodation cases — but will the decision stand? As you know, the Equal Employment Opportunity Commission has filed two lawsuits against Abercrombie in California — both of which have now settled — but there was another one in Oklahoma, and it may be the most interesting of them all.

The EEOC won summary judgment against Abercrombie, but two judges on a three-judge panel of the U.S. Court of Appeals for the Tenth Circuit  reversed, finding not only that the EEOC was not entitled to summary judgment against Abercrombie, but also that Abercrombie was entitled to summary judgment against the EEOC.

Ouch, baby. Very ouch.

I would love to hear what you think about this case. If you aren’t already familiar with it, you may want to read about Abercrombie’s “Look policy” here. (It is my understanding that the store has adapted its policy since these lawsuits were filed.)

Samantha Elauf, a Muslim, interviewed for a job at an Abercrombie store in Tulsa. She wore a black hijabto her interview. The interview, with a store assistant manager, went fairly well. Although religion and the hijab were never discussed, the assistant manager assumed that Ms. Elauf was Muslim and wore ahijab for religious reasons. The assistant manager rated Ms. Elauf eligible for hire. However, after the interview, the assistant manager sought some guidance about the hijab and the Look policy, and eventually consulted with her district manager. According to the assistant manager, they discussed the fact that Ms. Elauf was, in all likelihood, Muslim.

Uh-oh.

The district manager instructed the assistant store manager to lower Ms. Elauf’s job interview scores so that she would not be hired. They never contacted her first to determine whether a religious accommodation was needed or possible.

I can see how someone would find that the EEOC was entitled to summary judgment on these facts, can’t you?

Well, Abercrombie appealed, and the decision came down this week. The EEOC lost big, and the court said that it was because Ms. Elauf had not informed Abercrombie of her need for a religious accommodation.

Here is what the court said, in so many words:

*Generally, the obligation for an employer to provide religious accommodations does not kick in until the employee requests an accommodation. The belief or practice must be a requirement (as opposed to a nice thing to do), the requirement must be “religious” in nature (as opposed to “cultural,” or an ethical or political belief, or a matter of personal preference), and the religious requirement mustconflict with a workplace requirement — otherwise, no accommodation would be necessary. In most cases, none of these things is self-evident, even if the employer knows that the employee is an adherent of a particular faith.

So far, I’m with the majority. This is an accurate statement of the law and also makes perfect sense.

*It is generally unlawful for an employer to consider religion in making employment decisions(unless you’re interviewing for your next pastor, rabbi, or imam), and therefore it is generally unlawful for an employer to ask about an applicant’s religion in a job interview. Therefore, it’s not fair to penalize an employer for not affirmatively asking about religion or religious accommodation needs in the hiring process.

Agreed. Still with ya.

*Therefore, an employee or applicant is not entitled to religious accommodation unless the employer has actual, particular knowledge of the employee’s or applicant’s accommodation need.This would usually require that the employee or applicant specifically tell the employer about the need.

Here’s an example as to why: Let’s say an applicant wears a crucifix necklace to her job interview and has on her resume that she’s a member of Our Lady of Reasonable Accommodations Catholic Church. Would this be enough for the employer to know that she needed to take All Saint’s Day off every year? Probably not. First, the employer may not be Catholic and may not know anything about this kind of thing. Second, even though All Saint’s Day is a holy day of obligation, most Catholics work as usual, and go to Mass either the evening before, or at lunch time, or the evening of. Some even skip Mass. (Not that I’m condoning that!) So, even if the employer knew something about the Catholic faith (or was Catholic him- or herself), the employer would not know of the applicant’s particular need based only on the known fact that she was Catholic. The employer would have to know how this particular individual interpreted her religious obligations.

I am still with the majority on the Tenth Circuit panel.

Until I get to the facts of this Oklahoma case, and then I hit a wall.

Here is my problem with this case. Ms. Elauf wore the hijab to her job interview. The hijab itself conflicted with a policy (the Look policy) of the employer. The assistant manager went over the Looks policy with Ms. Elauf but did not ask whether she had to wear the hijab as a requirement of her religion. In fact, the hijab was never discussed at all.

I am still OK with this because the assistant manager considered Ms. Elauf eligible for hire. Why go there if you don’t have to?

But then the assistant manager took it up with her boss, who apparently did not want a hijab-wearing employee in his store.

At this point, don’t we have a “conflict” between the applicant’s presumed religious beliefs and the workplace requirement? A conflict of which the employer is, or should reasonably be, aware?

So, at this point, doesn’t Abercrombie have the duty to call Ms. Elauf back and start talking about whether she needs to wear the hijab at all times, and if so, whether her need is a requirement that is religious in nature, and if so, whether accommodations are possible?

Before unilaterally reducing her interview scores and rejecting her as an applicant?

I think so. So did the EEOC. So did the lower court judge. So did the dissenting judge on the Tenth Circuit panel. Of course, this doesn’t mean I am right – only that I have company.

I would be surprised if the EEOC didn’t petition for rehearing by the full Tenth Circuit, and they might even try to take the case to the Supreme Court. Of course, Abercrombie may just go ahead and settle this one now, too, while it has some leverage.

What do you all think about this decision, or about religious accommodation in general? I would love to hear from you. Meanwhile, you may be interested in this recent bulletin by my law partner, Tommy Eden, about religion and the “Mark of the Beast.”

This article was originally printed on Employment & Labor Insider on October 4, 2013.  Reprinted with permission.

About the Author: Robin Shea is a partner at Constangy, Brooks & Smith, LLP.  She has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations.

Runkel: Supreme Court Jumping the Gun on Section 1983 ADEA Case?

Saturday, October 5th, 2013

secunda-paulAt RossRunkel.com today:

SCOTUS: Can public sector employees skip the ADEA and sue directly under the constitution?

Or should this case even be before the Supreme Court?

Madigan v. Levin [Briefs at SCOTUSblog] is set for argument [this Monday] October 7.

‘Harvey Levin, a state employee, claimed he was fired because of his age. He sued his boss under the ADEA and the constitution. The boss claimed qualified immunity.

The trial court threw out the ADEA claim, kept the constitutional claim, and decided the boss did not have immunity.

The boss brought an interlocutory (pre-trial) appeal to the 7th Circuit, which decided (1) no immunity and (2) Levin can go ahead with his constitutional claim.

Primary issue: Whether a public sector employee can bring an age bias claim directly under the Constitution without following ADEA procedures. That’s the issue everyone is talking about. For a good explanation, see Lyle Denniston’s discussion at SCOTUSblog.

Wait, wait, one more issue: Notice that the appeal to the 7th Circuit was interlocutory. Unusual. Allowed here because of the immunity issue. But the 7th Circuit also went forward with the ADEA-vs-constitution issue. I’d like to see the Court kick this case back to the 7th Circuit, telling them they jumped the gun. Wait for a trial to take place, and then appeal from a final judgment. Am I trying to be too orderly here?

FWIW, I think the Court should kick back the case for a trial before deciding the case on appeal.  I am very much a proceduralist on such matters.

As far as whether a public employee should be able to bring a constitutional claim based on age discrimination in addition to a claim under the ADEA, I think they should be able to do so. My primary thinking is that you can get individual liability in a Section 1983 case, whereas you cannot under the ADEA.  Also, in light of Grosschanging the causation standard to “but for” in ADEA cases, there might be an easier cauasation standard under Section 1983.  In any event, this analysis is supported by a similar conclusion come to by the Court in the Title IX realm in the Barnstable case a few years ago.

The one difference between this case and Barnstable is that you do not have to exhaust administrative remedies in Title IX cases like you do under the ADEA, so that may be a distinction which might make this case come out differently.  Court might place importance on the gatekeeping function the EEOC plays in ADEA cases and this may be seen as an end-around for some public employees (though Madigan brought both claims so must have exhausted administrative remedies).

This article was originally printed on Workplace Prof Blog on October 3, 2013.  Reprinted with permission.

About the Author: Paul Secunda is an associate professor of  law at Marquette University Law School.  Professor Secunda is the author of nearly three dozen books, treatises, articles, and shorter writings. He co-authored the treatise Understanding Employment Law and the case book Global Issues in Employee Benefits Law.  Professor Secunda is a frequent commentator on labor and employment law issues in the national media.  He co-edits with Rick Bales and Jeffrey Hirsch the Workplace Prof Blog, recently named one of the top law professor blogs in the country.

It’s the Final Countdown: How the Government Shutdown Affects Labor and Employment Law

Tuesday, October 1st, 2013

HymanJonathanTIn case you haven’t heard, as of 12:01 a.m. this morning, the federal government is closed. Your business will feel this shutdown in many ways, including in your interactions with the federal agencies that enforce the various labor and employment laws. Each has posted on its website a contingency plan for operations during the shutdown.

For example, the Equal Employment Opportunity Commission:

  1. Will accept and docket new charges, and examine if immediate injunctive relief is necessary.
  2. Will not conduct any investigations.
  3. Will not mediate any charges.
  4. Will not have staff available to answer questions or respond to correspondence.
  5. Will not litigate, unless a court denies a request for extension of time.
  6. Will not process any FOIA requests.

The Department of Labor and the National Labor Relations Board have each posted their own detailed shutdown plans. The bottom line, however, is that except for services that are absolutely essential, federal agencies will be closed until Congress works out its financial issues.

Federal courts, meanwhile, will remain open for business as usual for at least 10 business days, after which the Judiciary will reassess the situation.

Other federal services impacting employers that will be temporarily shuttered include e-Verify and the IRS.

While it difficult to predict how long this shutdown will last.The last shutdown of the federal government, spanning the end of 1995 to the beginning of 1996, lasted 28 days.

For now, if you have active matters with any federal agencies, expect for them to be on hold. Please remember is that while the EEOC and other agencies might be temporarily out of business, the laws that they enforce are not.

This article was originally printed on Ohio Employer’s Law Blog on October 1, 2013.  Reprinted with permission.

About the Author: Jonathan Hyman is a partner in the Labor & Employment group of Kohrman Jackson & Krantz.

EEOC loses battle (but not war) on discriminatory background checks

Wednesday, August 21st, 2013

Christian SchreiberWhen it dismissed a federal lawsuit last week, the U.S. District Court for Maryland made it even harder for workers with poor credit histories and past criminal convictions to find a job.  Civil rights advocates hope the decision is not a bellwether for similar cases pending around the country.

The lawsuit, brought by the federal Equal Employment Opportunity Commission, charged Freeman, a privately-held event-management company, with violating Title VII of the Civil Rights Act through its use of credit and criminal background checks.  According to the EEOC’s complaint, the employer’s decision to use background checks to screen out job applicants amounted to discrimination because it disproportionately impacted African-American and male job applicants.

Freeman’s hiring process involved detailed inquiries into both the applicant’s credit histories and criminal backgrounds.  Freeman “regularly ran credit checks for 44 job titles,” and excluded all applicants from certain positions who met any of 12 different categories of purported credit-unworthiness.  Even common credit blemishes, such as credit card charge-offs, medical liens, unpaid student loans, or foreclosures would result in the applicant being rejected.

The Freeman court joined the chorus of employers extolling what some consider the “common sense” of performing credit and criminal background checks.    These proponents also ignore the studies demonstrating that credit problems do not predict employee performance, as well as those that document atrocious error rates on credit checks.   A report released by the Federal Trade Commission earlier this year found that a quarter of consumers identified errors on their credit report that might affect their credit scores.

In 2011, California limited the use of credit checks in employment.  After three prior attempts were vetoed by Governor Schwarzenegger, the bill was itself an object lesson in persistence.  However, the law also established broad exceptions to the “prohibition” on employment-related credit checks, effectively blessing their use across jobs and industries where the need or utility has never been demonstrated.

In addition to the credit-check hurdle, Freeman’s standard employment application form asked, “Have you ever pleaded guilty to, or been convicted of, a criminal offense?”  Applicants were told certain convictions would not be considered in the hiring process (yeah, right), but the company acknowledged a “bright-line rule” that disqualified any applicant who “failed to disclose a conviction, seriously misrepresented the circumstances of a criminal offense, or made any other materially dishonest statement on the application.”

In June, the EEOC filed two similar complaints against Dollar General Corp and BMW, alleging that the companies’ use of criminal background checks resulted in a disparate impact against African-American job applicants.  Referred to as “disparate impact” cases, these types of challenges stand or fall on the persuasiveness of the parties’ statistical evidence.  In the EEOC v. Freeman case, the court let loose on the EEOC’s expert, excoriating his methodology and ultimately calling his findings “an egregious example of scientific dishonesty.” (Ouch.)  Though it may be possible to blunt the impact of Freeman simply by putting on better statistical evidence, the decision nonetheless entrenches practical misconceptions and legal standards that are hostile to workers.

These cases are being watched closely by consumer and civil rights advocates, who still hold out hope that the EEOC’s oversight of these employment policies will curtail the increasing use of background checks to screen out applicants.   Advocates hope Freeman doesn’t signal that more bad news lies ahead.

This article originally appeared on CELA Voice on August 19, 2013.  Re-posted with permission. 

About the Author: Christian Schreiber is an active member of the California Employment Lawyers Association, where he serves on CELA’s Legislative Committee and Wage and Hour Committee.  He is also a member of the American Constitution Society, the Public Justice Foundation, and the Consumer Attorneys of California. Mr. Schreiber received his B.A. from UCLA in 1996.

Supreme Court Narrows Definition of "Supervisor" Under Title VII

Monday, July 1st, 2013

sheppard mullinEarlier this week, the United States Supreme Court narrowed the definition of “supervisor” for purposes of employment-related claims.  Specifically, on Monday, June 24, 2013, the Supreme Court ruled in Vance v. Ball State University, et al., that, under the federal Title VII discrimination statute, an employer can be held vicariously liable for an employee’s unlawful harassment only where that particular employee has been empowered with the authority “to take tangible employment actions against the victim.”  The Court’s 5-4 decision resolves a circuit split concerning the extent of authority an employee must exercise and be granted to be classified as a “supervisor.” The term “supervisor” is not defined in Title VII.  Instead, it was adopted by the Supreme Court as a way to identify those individuals whose actions could give rise to vicarious employer liability in the two earlier decisions of Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998).  As established in Ellerth and Faragher, the standard to determine the employer’s liability is different based on whether or not the alleged harasser held a “supervisor” position.  First, where the alleged harasser is only the individual’s co-worker (and not a supervisor), the employer is liable only if it was negligent in failing to prevent the harassment from taking place.  Conversely, where the alleged harasser is the individual’s supervisor, and the harassment results in an adverse tangible employment action, the employer will be strictly liable.  However, if no tangible employment action is taken, the employer can avoid liability if it can demonstrate, as an affirmative defense, that (1) it exercised reasonable care to prevent and eliminate harassment, and (2) that the plaintiff unreasonably failed to take advantage of the preventive or remedial opportunities provided by the employer. Despite the central focus in Ellerth and Faragher on the status of the alleged harasser, neither case presented the Court with the question of what degree of authority an individual must have imbued to him or her so as to be classified as a “supervisor.”  This precise issue reached the court in Vance, and provided the Supreme Court with its first opportunity to address this matter.  In Vance, an African American woman (Maetta Vance) claimed that a white Ball State University employee (Saundra Davis) created a racially hostile work environment in violation of Title VII.  The trial court held that the University could not be liable for Davis’ alleged harassment because she did not have authority to “hire, fire, demote, promote, transfer, or discipline” Vance and, therefore, was not a supervisor.  The U.S. Court of Appeals for the Seventh Circuit affirmed the lower court’s decision and Vance appealed to the Supreme Court. In holding that “the authority to take tangible employment actions is the defining characteristic of a supervisor,” the Supreme Court rejected guidance issued by the Equal Employment Opportunity Commission (“EEOC”) – and adopted by several other circuit courts –that links supervisor status, in part, to an employee’s ability to direct another’s daily tasks.  Accordingly, according to the Majority decision, “an employer may be vicariously liable for an employee’s unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a ‘significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.’” Rather than adopt the EEOC’s definition of a supervisor, which the Supreme Court characterized as “nebulous,” “vague” and “a study in ambiguity,” the Supreme Court emphasized that its own definition is “easily workable.”  Significantly, the Supreme Court explained that, because of its newly-announced definition, parties will be able to determine whether an alleged harasser was a supervisor even before litigation commences, thereby permitting the parties to assess a case’s strength, and to potentially resolve a dispute, before filing suit.  Furthermore, where parties fail to reach an early resolution, the Supreme Court’s framework “can be applied without undue difficulty at both the summary judgment stage and at trial” and will “very often [resolve the question of supervisor status] as a matter of law before trial.”  Indeed, the Supreme Court noted that its definition permits supervisory status to generally be determined by “written documentation,” as opposed to the EEOC’s approach, which requires litigants to engage in a “highly case-specific evaluation” of a number of factors including how often the alleged supervisor directs an employee’s daily activities and how many tasks the individual directs. Conclusion The Supreme Court’s ruling in Vance narrows the class of employees whose actions can potentially hold an employer vicariously liable for creating a hostile work environment under Title VII.  Based on the Supreme Court’s indication that supervisory status generally can be determined through written documentation, employers should review the job descriptions of individuals in supervisory roles to ensure their accuracy.  Additionally, employers should identify which of their employees are vested with the authority to take tangible employment actions and provide them with anti-harassment training which is targeted to the workplace issues that supervisors are likely to encounter.

This article was originally posted on Sheppard, Mullin, Richter & Hampton LLP’s Labor & Employment Law Blog.  For more information, please visit: http://www.laboremploymentlawblog.com/.

About the Authors:

Gregg A. Fisch is a partner in the Labor & Employment Practice Group in Sheppard, Mullin, Richter, & Hampton LLP’s  Century City office

Jonathan Sokolowski is an associate in the Labor and Employment Practice Group in Sheppard, Mullin, Richter, & Hampton LLP’s New York office.

EEOC Issues Revised Publications Regarding the Employment Rights of People with Specific Disabilities

Wednesday, May 22nd, 2013

lizbeth_westOn May 15, 2013, the EEOC issued a press release announcing revised publications regarding employment rights for four categories of individuals with specific disabilities. The publications address how the Americans with Disabilities Act (ADA) applies to applicants and employees with cancerdiabetesepilepsy, and intellectual disabilities.

According to the EEOC, “nearly 34 million Americans have been diagnosed with cancer, diabetes, or epilepsy, and more than 2 million have an intellectual disability.” Further the agency believes that “many of them are looking for jobs or are already in the workplace…” and, “while there is a considerable amount of general information available about the ADA, the EEOC often is asked questions about how the ADA applies to these conditions.”

Therefore, the EEOC said that the revised publications are in plain, easy-to-understand language, and reflect the changes to the definition of disability made by the ADA Amendments Act (ADAAA) that make it easier to conclude that individuals with a wide range of impairments, including cancer, diabetes, epilepsy, and intellectual disabilities, are protected by the ADA. Each of the publications also answers questions about topics such as: when an employer may obtain medical information from applicants and employees; what types of reasonable accommodations individuals with these particular disabilities might need; how an employer should handle safety concerns; and what an employer should do to prevent and correct disability-based harassment.

For more information regarding the revised publications, go to:http://www.eeoc.gov/laws/types/disability.cfm

This article was originally printed on The Labor and Employment Law Blog on May 16, 2013.  Reprinted with permission.

About the Author: Lizbeth V. West, Esq. is a Shareholder in Weintraub Tobin’s Labor and Employment, Appeals and Writs, and Litigation groups.

EEOC Can Use Teamsters-style Pattern-or-Practice Theory under Title VII § 706

Monday, November 12th, 2012

Serrano sued in a class action claiming sex discrimination and the EEOC intervened. The trial court ruled for the employer on a number of issues; the 6th Circuit reversed. Serrano and EEOC v. Cintas Corp (6th Cir 11/09/2012).

The main issue was whether EEOC could pursue a pattern-or-practice style claim pursuant to § 706 of Title VII.

The employer argued that under § 706 the EEOC is limited to proving its allegations of discrimination pursuant to the McDonnell Douglas Corp v. Green, 411 US 792 (1973), burden-shifting framework, and cannot use the pattern-or-practice framework announced by the Supreme Court in Teamsters v. United States, 431 US 324 (1977). The court rejected that argument. Even though the Teamsters case arose under § 707, the theory of that case can be used under § 706.

The trial court erred in holding that the employer was entitled to judgment on the pleadings in light of the EEOC’s failure to plead its intent to rely on the Teamsters framework. Although the EEOC’s complaint “is not a model of good lawyering,” a plaintiff need not indicate at the pleading stage which circumstantial evidentiary framework it plans to use.

This article was originally published on November 10, 2012 at LawMemo. Reprinted with permission.

About the Author: Ross Runkel is a Professor of Law Emeritus at Willamette University College of Law. He has spent 35 years specializing in employment law, employment discrimination, labor law, and arbitration. 

Good News for Transgender and Ex-Offender Workers

Monday, April 30th, 2012

eidelson-headshotEqual Employment Opportunity Commission issues major rulings.

Last week the Equal Employment Opportunity Commission released major decisions regarding the rights of two groups of workers that face frequent discrimination. On Monday, the EEOC delivered an opinion finding that Title VII of the 1964 Civil Rights Act, which bans “sex discrimination” in employment, applies to discrimination against transgender workers. On Wednesday, the EEOC approved a new set of guidelines restricting employers’ use of past criminal convictions to disqualify job applicants. Both decisions parallel, and could impact, legislative efforts already underway.

The EEOC was created by the Civil Rights Act and enforces that landmark legislation’s workplace discrimination protections. Its five commissioners are appointed by the president for five-year terms.

Transgender protections.

The EEOC’s new transgender precedent came in the case of Mia Macy, a transgender woman who says she had, as a man, applied for and been promised a job with the Department of Alcohol, Tobacco, and Firearms. When she attempted to take the job after her transition, she was told it had been given to someone else. After ATF’s Office of Equal Opportunity responded to Macy’s discrimination claim by asserting that anti-transgender discrimination was not covered by federal law, she appealed to the EEOC.

Macy’s lawyer argued that Title VII’s ban on sex discrimination applied to discrimination for being transgender. The EEOC agreed, and sent the case back to ATF with the instruction that it evaluate the case in that light. That’s in line with the steady—but by no means unanimous—trend of lower court rulings, notes Jennifer Pizer, the Legal Director of the Williams Institute at University of California Los Angeles. Pizer, a former Lambda Legal Senior Counsel, says the decision is “very significant,” because it “establishes a national understanding that discrimination in a workplace because of a person’s gender identity or expression is a form of gender discrimination.”

In an interview with Metro Weekly, Macy described the EEOC opinion as “one more piece in the puzzle of equality.”

“This isn’t discrimination because a person is male or because a person is female,” says Pizer. “It’s a subset of that discrimination against a person based on how they are male or how they are female, or whether their gender seems to be ambiguous, or whether the way they are and the way they live is consistent with what other people they should do based on what their gender appears to be.”

Pizer notes that courts used to often rule against sex discrimination claims by transgender workers on the grounds that “Congress did not have this in mind” in 1964.  But more recently, judges have increasingly recognized that the protection covers “the range of ways a person might be treated differently because of their sex…If a person was qualified to the job as a man, and isn’t qualified to do it as a woman, or vice versa, that’s sex discrimination.”

Williams say there’s no good estimate of what proportion of transgender workers are known to be transgender by their employers. Some employers find out for the first time when a employee undergoes a gender transition, or when management reviews a worker’s health insurance information for an unrelated reason. When that happens, says Pizer, “a hostile reaction” is “sadly common.”

“Everybody is protected against sex discrimination,” says Pizer, “and sex discrimination includes protection against discrimination based on one’s perceived failure to confirm to sex stereotypes.”

Pizer says the EEOC’s logic would also apply to some, but not all, cases of discrimination against non-heterosexual workers: it would apply to a non-transgender lesbian woman, for example, who was treated differently because of a perceived failure to conform to “feminine” norms.

But it would not protect the same woman if she was being treated differently specifically for having, or wanting, same-sex relationships. Pizer acknowledges that’s an “odd line,” and one that could be exploited by employers. A minority of states have their own laws banning workplace discrimination based on sexual orientation.

The Employment Non-Discrimination Act, a bill to ban discrimination based on sexual orientation or gender identity, has been repeatedly introduced in Congress, though it’s drawn less attention than fights over marriage equality. In a November press conference following the announcement of his retirement, Congressman and ENDA sponsor Barney Frank named resistance to transgender protections as one of the reasons the bill has not yet passed.

Pizer says the EEOC’s ruling, which leaves transgender workers with stronger federal protections than other LGBT workers, doesn’t lessen the urgency of passing a broad ENDA, but has the potential to dull some of the opposition.

“What we’ve seen in some states,” says Pizer, “is that when courts and administrative bodies recognize that a kind of discrimination is covered by existing law, then sometimes legislators find it that much more straightforward, if you will, to codify that understanding into a statute.”

Ex-offender protections.

In a Wednesday vote, the EEOC approved a revised set of guidelines for employers regarding the use of criminal background checks in hiring. Advocates hailed the move in a Thursday conference call with reporters.

National Employment Law Project Executive Director Christine Owens said it “was really well past time” for new guidelines, given that the “terrain…had shifted so dramatically” since 1987, when the EEOC first formally recognized the “disparate impact” of such restrictions on African-Americans and Latinos.

In the 25 years since, notes Owens, the pre-employment background check industry has exploded, and the use of such checks has spread from a bare majority of the economy in 1996 to over 90 percent today. NELP has estimated that up to 65 million U.S. adults face potential job restrictions due to past offenses, including 1 in 17 white men, 1 in 7 hispanic men, and 1 in 3 black men.

Compared to its ruling recognizing anti-transgender discrimination as a form of sex discrimination, EEOC law on pre-employment background checks remains less clear: The EEOC warns that such practices can have a potentially illegal—discriminatory effect, but doesn’t consider them inherently to be a form of racial discrimination under Title VII.

Sharon Dietrich, a managing attorney for Community Legal Services of Philadelphia, says the EEOC’s move Wednesday “is not groundbreaking, but it is extremely important.” Dietrich highlighted the change in three areas. First, the EEOC is providing illustrative examples for employers of practices now likely to run afoul of the law, including firing already-hired employees purely on the basis of background checks, or automatically disqualifying all employees with criminal records in an online application. Second, it offers guidelines for how to stay within the law. Third, it advises employers to inform potential employees when ex-offender status is being weighed against them, and provides guidelines for consideration of extenuating circumstances.

Dietrich notes that private-sector employers aren’t the only ones that have been found to use background checks in a manner inconsistent with the Civil Rights Act. She says the EEOC’s new guidance means that “legislators at the state and local level cannot enact over-broad state and local laws that restrict the employment of former offenders.”

In Pennsylvania, Dietrich’s organization successfully brought suit against a state law that imposed imposed a lifetime ban on the hiring of people with a wide range of former offenses by facilities assisting senior citizens.  “Anything that is a lifetime ban,” she says, “pretty clearly is in violation of EEOC’s policies, and is of really questionable legal merit.” Meanwhile, some cities have gone farther than the EEOC, passing “Ban the Box” legislation that forbids some employers from asking about criminal background on initial employment applications.

Owens and Dietrich were joined on the call by Elsie Sacarello Quiles, who says she was fired after three days working for a new school district.

“At the time,” says Sacarello, “I didn’t even remember what the charges were.” She later realized she had lost her job over a nearly four-decade-old “disorderly conduct” arrest. “I was very humiliated. I was very much ashamed, for something occurred 38 years ago, out of my ignorance as an 18-year-old…I’m pretty much at a standstill right now.”

This blog originally appeared in Working in These Times on April 30, 2012. Reprinted with permission.

About the Author: Josh Eidelson is a freelance writer and a contributor at In These Times, The American Prospect, Dissent, and Alternet.  After receiving his MA in Political Science, he worked as a union organizer for five years.  His website is http://www.josheidelson.com.

Employment Commission Ruling Protects Transgender Individuals from Workplace Discrimination

Tuesday, April 24th, 2012

Our guest bloggers are Jeff Krehely and Crosby Burns, who work on the LGBT Research and Communications Project at American Progress.

Late yesterday, the Equal Employment Opportunity Commission (EEOC) issued a comprehensive ruling giving transgender individuals sorely-needed federal protections against discrimination in the workplace. According to the ruling, employers who discriminate against employees or job applicants on the basis of gender identity can now be found in violation of Title VII of the Civil Rights Act, specifically its prohibition of sex discrimination in employment.

This ruling marks the first time that the EEOC has held that transgender people are protected from discrimination by federal law. Chris Geidner broke the story late last night in Metro Weekly:

“The opinion came in a decision delivered on Monday, April 23, to lawyers for Mia Macy, a transgender woman who claims she was denied employment with the Department of Alcohol, Tobacco, Firearms and Explosives (ATF) after the agency learned of her transition. It also comes on the heels of a growing number of federal appellate and trial courts deciding that gender-identity discrimination constitutes sex discrimination, whether based on Title VII or the constitutional guarantee of equal protection of the laws.

The EEOC decision, issued without objection by the five-member, bipartisan commission, will apply to all EEOC enforcement and litigation activities at the commission and in its 53 field offices throughout the country. It also will be binding on all federal agencies and departments.

The implications of this ruling are far-reaching. Prior to yesterday’s ruling, only 16 states and the District of Columbia prohibit employment discrimination based on gender identity. Going forth, this precedent-setting decision puts in place comprehensive protections for transgender workers that apply to both private and public employees across the entire United States.

Specifically, thanks to the ruling in this case (brought forward by the Transgender Law Center) transgender people are now protected by federal law and have legal recourse if they are denied a job or fired because they are transgender. Should a transgender person file a complaint with the EEOC and should the EEOC determine that case has merit, the EEOC now has the legal standing to sue the employer for discrimination under Title VII.

This ruling comes at a time when transgender Americans face near-universal discrimination and harassment in the workplace. According to the most comprehensive study on transgender discrimination to-date, 90 percent of transgender individuals have experienced harassment or mistreatment on the job, or took actions to avoid it. This includes 47 percent of transgender individuals who have experienced an adverse job outcome, such as being fired, not hired, or denied an otherwise deserved promotion based solely on their gender identity. What’s more, race multiplies the effect of discrimination, with transgender people of color reporting especially high rates of discrimination on the job.

Unfortunately, workplace discrimination poses a significant threat to the economic livelihood of transgender individuals and their families, who report higher rates of unemployment, underemployment, and poverty than their non-transgender counterparts. Workplace discrimination leaves far too many transgender individuals without a steady income to buy groceries, pay the utility bills, and make ends meet in an already struggling economy. That’s why yesterday’s ruling from the EEOC is so important for transgender workers and their families.

EEOC’s ruling has the potential to substantially impact the legal landscape for transgender workers—not to mention their employers. Companies in jurisdictions where gender identity-discrimination was already illegal prior to this ruling have wisely taken steps to avoid financially painful lawsuits by ensuring discrimination does not go unchecked against their workers, including those who are transgender.

Given yesterday’s decision, companies in all 50 states would also be wise to take similar steps. These steps include adding “gender identity” to existing company nondiscrimination and anti-harassment workplace policies as well as updating any staff diversity training programs. It is worth mentioning, however, that many companies both big and small already have these policies in place. As detailed in this report from the Center for American Progress, companies adopt these policies in large part because they actually help improve the bottom line (in addition to just being the right thing to do).

Employment is fundamental for people to support themselves and their families. Yesterday’s ruling by the EEOC helps ensure workers are not forced out of a job and into the ranks of the unemployed based solely on their gender identity. To that end, we urge Congress to pass theEmployment Non-Discrimination Act and the president to sign an executive order requiring federal contractors to have corporate policies that prohibit discrimination on the basis of sexual orientation and gender identity. Federal policymakers should take advantage of all tools at their disposal to put LGBT people on a level playing field in the workplace. It’s the right thing to do – both for people and for business.

This blog originally appeared in ThinkProgress on April 24, 2012. Reprinted with permission.

Your Rights Job Survival The Issues Features Resources About This Blog