Tag archives: Title VII

Expanding definition of “sex discrimination” under Title VII

The Judiciary continues to act where Congress will not

All employment attorneys—and most employers—know that Title VII bars discrimination based on certain enumerated personal characteristics: race, color, religion, sex, and national origin. It has long been the case that “sex” meant biological sex only, i.e., discriminating against a woman because she is a woman, or against a man because he is a man, is plainly illegal under Title VII.

By contrast, unlike some equivalent state laws, it has long been clear that Title VII does not guard against discrimination based on sexual orientation.  Indeed, Congress has on a number … Continue Reading

Title VII sexual orientation claims are gaining traction with more courts

On November 4, 2016, a federal judge in Pennsylvania became the latest jurist to side with the U.S. Equal Employment Opportunity Commission (EEOC) in endorsing the viability of claims based on sexual orientation under Title VII of the Civil Rights Act of 1964. In U.S. EEOC v. Scott Medical Health Center, the EEOC brought suit on behalf of a gay male employee based on a sexually hostile work environment allegedly caused by his male supervisor.  During the EEOC’s investigation into charges filed by the employee’s co-workers, the agency learned of sex-based comments being directed towards the employee, including terms … Continue Reading

“Promising practices” encouraged by EEOC to prevent retaliation

The U.S. Equal Employment Opportunity Commission (EEOC) has issued its final “Enforcement Guidance on Retaliation and Related Issues” following a six-month public comment period. The guidance replaces the EEOC’s 1988 Compliance Manual section on retaliation.

Workplace retaliation claims have been on the rise in recent years and have been the focus of several opinions of the U.S. Supreme Court in the past two decades. In fact, charges of retaliation exceeded race discrimination claims in 2009 and comprised nearly 45 percent of all charges received by the EEOC in 2015.

In addition to defining retaliation and providing over thirty … Continue Reading

Fair pay, safe workplaces, and federal contractors telling it like it is

On August 24, 2016, the U.S. Department of Labor (DOL) and the Federal Acquisition Regulatory (FAR) Counsel issued a final rule to implement President Obama’s Executive Order 13673, entitled “Fair Pay and Safe Workplaces,” first announced by the President over two years ago on July 31, 2014.

According to the Federal Acquisition Institute, the purpose of E.O. 13673 is “to help [federal] contractors come into compliance with labor laws – not to exclude contractors.” The final rule implementing the order requires both current and prospective federal contractors and subcontractors to disclose labor law violations and establishes how federal … Continue Reading

Does Title VII cover sexual orientation claims? It depends.

In July 2015, the EEOC officially took the position that sexual orientation claims may be brought under the non-discrimination provisions of Title VII of the Civil Rights Act of 1964. However, in the recent case of Hively v. Ivy Tech Community College, the Seventh Circuit refused to accept the EEOC’s position and affirmed the dismissal of a sexual orientation discrimination claim holding that such claims are not cognizable under Title VII.

Following the United States Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins, federal courts have consistently recognized sexual stereotype or gender non-conformity claims as a species … Continue Reading

DOL issues sex discrimination final rule

On June 14, 2016, the United States Department of Labor (DOL) Office of Federal Contract Compliance Programs (OFCCP) issued a Final Rule to revise its sex discrimination policies, updating its guidelines to provide additional guidance on what constitutes discrimination based on sex. The updated guidelines define “sex” to include gender identity, transgender status, pregnancy, and sex stereotyping.  OFCCP also clarified some aspects of the old rule, including which parts contractors are subject to, whether a contractor’s good-faith efforts to expand employment opportunities for women could result in a violation of the Rule, and whether contractors may seek exemptions under the … Continue Reading

EEOC continues its efforts to incorporate sexual orientation and gender identity into Title VII protections

On March 1, 2016, the EEOC filed two cases with one clear goal: to expand the meaning of “sex” under Title VII. In EEOC v. Scott Medical Health Center, P.C., Case No. 2:16-cv-00225-CB (W.D. Pa.),  the agency alleges that the defendant harassed an openly gay male employee because of his sexual orientation, thereby committing unlawful sex discrimination under Title VII.  The Complaint suggests the employee’s manager repeatedly directed homophobic slurs at the employee, conduct the agency characterizes as “motivated by [the employee’s] sex (male), in that sexual orientation discrimination necessarily entails treating an employee less favorably because of his … Continue Reading

U.S. Supreme Court to rule on circuit split regarding timeliness of constructive discharge complaints

On November 30th, 2015, the U.S. Supreme Court will hear oral arguments in the case of Green v. Donahoe, 760 F.3d 1135, 1137 (10th Cir. 2014) regarding the timeliness of an Equal Employment Opportunity Commission (“EEO”) complaint alleging constructive discharge under Title VII. Currently five circuits have held that the filing period begins when an employee resigns. In contrast, three circuits have found that the employer’s last discriminatory act triggers the filing period.

The facts of Green clearly illustrate the problem that the circuit split presents to employees and employers alike. Marvin Green, an African American man, was a … Continue Reading

What same-sex marriage means for employers

In June the U.S. Supreme Court ruled in a 5-4 decision that the equal protection guarantee provided by the Fourteenth Amendment to opposite-sex marriages extends to same-sex marriages. The opinion in Obergefell v. Hodges, authored by Justice Anthony Kennedy, holds that “same-sex couples may exercise the fundamental right to marry in all States” and that there is “no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.”

While the Supreme Court’s opinion goes on at length about the dignity inherent in the ability to … Continue Reading

The deeper meaning behind Abercrombie besides failing to ask about an accommodation

As widely reported in its recent EEOC v. Abercrombie & Fitch Stores, Inc. decision, the United States Supreme Court held that employers cannot lawfully refuse to hire an applicant if the decision was motivated by the employer’s unwillingness to provide the applicant with an accommodation the applicant needs for religious reasons.

However, in so holding, the Court clarified the causation standard in Title VII discrimination cases such that the more lenient “motivating factor” jury instruction – as opposed to the oft used “because of” instruction – likely will be used going forward.

By way of example, in writing for the … Continue Reading

Current status of legal protections for sexual orientation and gender identity in employment

As the workforce becomes more and more diverse, sexual orientation and gender identity have become very hot topics in discussions regarding employee rights. It may be surprising to learn that neither is considered a protected class under current federal employment discrimination law in the United States.

At last count, however, 32 states, including the District of Columbia, have passed laws prohibiting employment discrimination based on sexual orientation and/or gender identity. While federal government employees and contractors enjoy similar protections, Congress has yet to expand the statutorily protected classes of race, color, sex, religion, national origin, age, disability, and genetic information … Continue Reading

Headwinds and headscarves – Charting a prudent course for employers in the wake of EEOC v. Abercrombie & Fitch

On June 1, 2015, the Supreme Court of the United States, in EEOC v. Abercrombie & Fitch Stores, Inc., held that an employer need not have actual knowledge of the need for religious accommodation to be liable for a hiring decision if the employer refuses to accommodate a perceived need for a religious accommodation. The high court ruled that it is unlawful for an employer to refuse to hire an applicant if a “motivating factor” for the decision is the employer’s unwillingness to provide the applicant with an accommodation that the employer perceives the applicant needs for religious reasons.… Continue Reading

Check state and local laws…

When lawyers advise on federal law, they frequently conclude with a warning to check state or local law for additional requirements.  This probably strikes most readers as boilerplate. It is a warning that is probably ignored as often as it is followed.

However, it is a warning that should be heeded.  Take the state of Missouri, for example. This is not a state that most observers would identify as hostile to employers, or as a hotbed of judicial activism.

But did you know that Missouri has a broad-based, public policy exception to at-will employment? In a trio of decisions handed … Continue Reading

Must employers separate themselves from long-used separation agreement forms?

Recently, a federal judge dismissed an action the EEOC filed against CVS Pharmacy, Inc, in which the EEOC challenged several terms in CVS’s standard separation agreement. (See Mem. Op. & Order, Equal Emp’t Opportunity Comm’n v. CVS Pharmacy, Inc., No. 1:14-CV-863 (N.D. Ill. Oct. 7, 2014)). 

The EEOC asserted that the terms in CVS’s standard agreement were unlawful restraints on departing employees’ rights under Title VII of the Civil Rights Act of 1964.

Although the dismissal marks a victory for CVS, the court’s decision offers little solace for employers concerned about the continued validity of common terms in … Continue Reading

Are scholarship football players employees? NLRB to hear appeal and take comments

Earlier this year, the Regional Director of Region 13 of the NLRB found that scholarship football players at Northwestern University are “employees” under Section 2(3) of the National Labor Relations Act. Northwestern University v. College Athletes Players Association, Case 13-RC-121359 (N.L.R.B. Mar. 26, 2014).

The Regional Director’s decision turned largely on the amount of control exerted by the University and coaching staff on the scholarship players, which the Regional Director viewed as equivalent to the control exercised by employers over their employees.

The Regional Director held that in return for their “valuable” football services, the scholarship players received benefits … Continue Reading

EEOC takes aim at CVS, examining common separation agreements

In what appears to be a test case by the EEOC, CVS Pharmacy is facing a surprising attack on its use of a standard separation agreement. Equal Employment Opportunity Commission v. CVS Pharmacy, Inc., No. 1:14-CV-863 (N.D. Ill.).

The EEOC’s complaint—filed on February 7, 2014, in the Northern District of Illinois—accuses CVS of engaging in a “pattern or practice of resistance” to Title VII by requiring departing employees to sign the agreement in exchange for severance payments.

And what onerous terms amount to an insurgency against Title VII? The EEOC has zeroed in on several provisions, including:

  • former employees
Continue Reading
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