Racial Slurs and Retaliation Drive EEOC to File New York Lawsuit

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Is it ever okay for a supervisor to use a racial slur at work? Should an employer be allowed to fire you in retaliation for filing a harassment complaint? The Equal Employment Opportunity Commission (EEOC) recently drew its line in the sand against these forms of racial discrimination by filing a lawsuit in New York’s federal district court.

In this blog I will review the recently filed lawsuit, EEOC v. A & F Fire Protection Co., Inc. in the U.S. District Court for the Eastern District of New York. I will summarize Title VII of the Civil Rights Act as to racial discrimination and retaliation, and explain what made A & F’s conduct cross the line for the organization.

Company Supports Racial Slurs Against Black and Hispanic Employees

Black and Hispanic employees of the sprinkler installation company, A & F Fire Protection Co. Inc., located in Massapequa, New York, came to the EEOC with very specific and disturbing complaints. They said their supervisors and co-workers were calling the minority workers the “N-word”, “spics”, “jigaboos” and “wetbacks”. The company knew this was happening, according to the complaints, and refused to step in to protect its employees from racial harassment and discrimination.

Instead of addressing the racism and bigotry happening among its employees, the EEOC alleges the Long Island-based company retaliated against the minority workers who raised the issue, firing them or forcing them to quit. According to the complaint, when the company received notice that two EEOC charges had been filed against it, the owner instructed the complaining workers’ supervisor to fire them. The supervisor refused, and the company retaliated against him as well.

The EEOC attempted pre-suit conciliation. When no settlement could be reached, it filed a lawsuit in the Eastern District of New York on behalf of the employees for back wages, compensatory and punitive damages, and changes to the company’s employment policies to prevent future harassment.

Title VII and Racial Discrimination

Title VII of the federal Civil Rights Act makes it illegal for an employers to discriminate based on a person’s race, color, or national origin (among other protected traits). When racial harassment happens at work, whether by supervisors or co-workers, an employer is legally required to take reasonable steps to stop the behavior. Depending on the situation this may include changes to or enforcement of company policy, discipline against the harassers, or reassignment of the parties involved.

While racial slurs like those used at A & F Fire Protection Co. Inc. are not the only form of racial discrimination, they can easily create a hostile working environment that violates the law. EEOC Trial Attorney Kirsten Peters said in a statement:

Federal courts have held that even one utterance of a racial slur by a supervisor in the workplace can constitute legally actionable harassment. In this case, the use of racial slurs was a regular occurrence. Employers cannot permit widespread harassment of this sort to occur.

EEOC New York District Office Regional Attorney Jeffrey Burstein added:

The use of racial slurs in the workplace is unacceptable. . . . The abuse was so pervasive in this case that its tolerance was especially troubling. Upon learning of racial harassment in the workplace, it is an employer’s obligation under the law to ensure that it does not continue.

Retaliation for EEOC Complaints

When A & F employees asked their company to address the racial slurs being thrown around at work they faced retaliation for raising the issue. This kind of retaliation is illegal under Title VII (and many other anti-discrimination laws on the state and federal level). An employer may not discipline, punish, or make employment decisions about a worker who:

  • Speaks to a supervisor or manager about discrimination or harassment
  • Refuses orders that would result in discrimination
  • Registers internal complaints about racial slurs or a hostile working environment
  • Files an EEOC charge, complaint, or lawsuit
  • Acts as a witness or answers questions during an internal or EEOC investigation.

This is true even if the allegations turn out to be false, or the person incorrectly believes that the behavior is illegal racial discrimination.

However, all too often employers facing EEOC investigations resort to retaliation in an effort to remove the problem. It often demonstrates that the biases behind the statements exist at even the highest levels of the organization. When that happens, it creates a new Title VII claim for the targeted employees and only compounds the company’s problems. EEOC New York District Office Director Kevin Berry explains:

An employer only makes a bad situation worse and violates federal law when it retaliates against an employee for raising concerns about discriminatory behavior. Preventing retaliation against employees who come to the EEOC for help is one of the agency’s top priorities.

Racial discrimination and retaliation are unfortunate realities for many American workers. But employees do not have to put up with this kind of hostile work environment. Whether through the EEOC or a private Title VII lawsuit, they can see changes at work and be compensated for their suffering, time, and trouble.

Whether you are facing racial slurs, retaliation, or other, more subtle forms of racial discrimination at work, the employment discrimination attorneys at Eisenberg & Baum, LLP, based in New York City, are here to help. We will meet with you to review your claims, help you choose the best course of action, and see it through to the end. Contact Eisenberg & Baum, LLP, today to talk to an employment discrimination attorney.

Is an Employer Responsible for Sexual Harassment by Its Employees?

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When many people think of sexual harassment in the workplace, it brings to mind coercive bosses and oppressive business owners taking advantage of younger workers beneath them. But what about when the harasser is a coworker? Is an employer responsible for sexual harassment by its employees?

In this post I will discuss whether an employer can be held liable for sexual harassment or discrimination by its employees. I will explain when an employee can sue under federal law for the behavior of his coworkers or supervisors. And I will lay out what an employee should do if she wants to hold her employer responsible for sexual harassment committed by its employees.

The Civil Rights Act Protects Employees Against Sexual Harassment

Title VII of the federal Civil Rights Act is designed to protect American employees against discrimination and sexual harassment in the workplace. It gives workers the ability to file complaints with the Equal Employment Opportunity Commission (EEOC) or in federal court when inappropriate sexual advances affect a person’s employment.

Legally speaking, sexual harassment takes two forms:

  • Quid pro quo situations where an employer makes employment decisions based on an employee’s willingness to engage in sexual conduct
  • Hostile work environment claims where an employee’s coworkers or supervisors make repeated sexual statements or advances that are so severe that a reasonable person would find them inappropriate

In some cases, sexual harassment can also lead to retaliation claims, when an employer decides to remove the source of sexual harassment complaints, instead of the person committing the inappropriate behavior.

In either case, Title VII entitles the employee to a variety of financial and practical remedies, depending on the claimant’s circumstances and desired outcome:

  • Reinstatement into the same or similar position
  • Transfer to a different unit or shift
  • Removal or transfer of the offending employee or supervisor
  • Payment for lost wages, both past and future
  • Reimbursement for the costs of finding replacement employment
  • Punitive damages in some cases

Is an Employer Responsible for Sexual Harassment by Its Employees?

Sexual harassment is often caused by a desire to exert power and control over another person. In a traditional case, this is usually done by a boss, supervisor, or manager against an subordinate. In these cases, Title VII provides a clear path to recovery. When the harasser has the ability to significantly change the employee’s employment status, the United States Supreme Court has said the employer can be held directly responsible if those decisions are motivated by a person’s sex or sexuality.

But what about when the harasser is just a co-worker? A 2013 Supreme Court decision, Vance vs. Ball State University, 133 S.Ct. 2434, says that an employer will not automatically be responsible for a coworker’s independent intentional act. An employer is generally liable for actions done as part of the job, but discrimination and harassment aren’t part of anyone’s job description. According to the Court, an employee trying to hold an employer responsible for sexual harassment by its employees will have to do more than show that the behavior was offensive and happened at work.

Instead, if the sexual harassment didn’t involve a negative employment action, like hiring, firing, shift assignments, promotions, or pay raises, the employee must show that the employer was negligent in response to complaints. In other words, the company must have failed to prevent harassment it knew (or should have known) was happening on its dime.

For example, in September 2017, the EEOC sued coffee manufacturer Massimo Zanetti for sexual harassment and retaliation after the company allegedly fired an employee rather than respond to her complaints. LaToya Young was employed at the company’s Suffolk, Virginia roasting facility. After only two weeks of employment, a male co-worker began harassing her, asking for sexual favors, and making crude comments and gestures. The EEOC says Young filed three complaints about the behavior, but the harassment continued. Soon after her third complaint, Young was fired for alleged performance issues. The EEOC sued saying this was retaliation for Young’s sexual harassment complaints, which Massimo Zanetti had negligently failed to address.

What an Employee Should Do When Faced By Sexual Harassment by Co-Workers

The added step in proving an employer responsible for sexual harassment by its employees puts the pressure on the harassed employee. If you are facing harassment by coworkers on the job, you will need to take some proactive steps to protect your claim.

1. Say Something About the Harassment

Your employer needs to be on notice that sexual harassment is happening. So say something. Tell your supervisor, or your HR department what is happening and give them a chance to respond.

2. Write a a Formal Complaint

The larger your company, the more likely they are to have a formal discrimination policy with reporting procedures. Follow it. Make a formal written complaint and keep a copy for yourself.

3. Document the Employer’s Response

Start gathering documentation to support your sexual harassment claim and your employer’s investigation, or lack thereof. Follow up as often as it takes, in writing or via email, and keep track of every response you receive.

4. Track Continued Sexual Harassment

Along with your formal written complaint and the employer’s response, start tracking any continued sexual harassment happens: who, what, when, where, and who witnessed it. You will need this sexual harassment log to show your employer did not take reasonable steps to resolve the hostile work environment.

5. Get a Sexual Harassment Attorney to Help

Proving an employer responsible for sexual harassment of its employees isn’t easy. Don’t feel like you need to do it alone. At Eisenberg & Baum, LLP, we have sexual harassment attorneys ready to help you fight back against sexual harassment at work. We can help you stand up to your employer and demand that they protect you from sexual harassment by your coworkers. Whether all it takes is informal negotiations with your company’s attorney, or formal litigation in federal court, we can help you stand up for your rights. Contact us today to schedule a free consultation.

When is it Legal for Women to be Paid Less than Men?

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Employees often don’t like to share information about salary. Some employers even try to forbid it to prevent hard feelings in the workplace. But the secrecy around compensation also allows women to be paid less than men, without anyone realizing it. What can you do if you find out this is happening to you? Is it ever legal for women to be paid less than men for the same work?

In this blog post, I will review the Ninth Circuit Court of Appeals opinion, Rizo v. Yovino, and the exceptions included in the Equal Pay Act. I will explain when the Equal Pay Act makes it legal for women to be paid less than men, and what employees can do to see if those exceptions apply to them.

The Equal Pay Act Protects Against Wage Discrimination

The federal Equal Pay Act ensures that men and women are paid the same compensation for the same work. This doesn’t mean that every server, assembly line operator, or attorney needs to be paid exactly the same wage. But it does mean that women must be paid as much as men for substantially equal work. The Equal Pay Act includes all forms of compensation, including:

  • Salary
  • Hourly wage
  • Overtime pay
  • Bonuses
  • Stock options
  • Profit sharing and bonus plans
  • Life insurance
  • Vacation and holiday pay
  • Expense allowances
  • Hotel accomodations
  • Travel reimbursement
  • Other benefits

In determining whether the EPA has been violated, it is the content of the job that counts, not the title. Courts will look at:

  • The skill, experience, and education required to do the job
  • The physical or mental exertion needed to complete tasks
  • The accountability employees have, including direct reports and additional assigned tasks
  • Working conditions including physical surroundings and potential hazards
  • Other positions within the same business establishment

If an employee believes the EPA has been violated, he or she can file a claim in federal court directly. However, many violations of the Equal Protection Act also amount to gender discrimination under Title VII of the Civil Rights Act. These claims must be filed with the EEOC first, so many employment discrimination attorneys will take EPA cases through the EEOC’s investigation and voluntary settlement process to preserve those claims. If the court finds that an employer willfully violated the Equal Pay Act, the employee could be awarded back pay, raises or additional benefits, penalty fees, attorney fees, and costs.

Exceptions That Make it Legal for Women to Be Paid Less Than Men

A plaintiff in an Equal Pay Act lawsuit only has to prove that she was paid less than her male coworkers for substantially the same work. But that doesn’t mean that every case ends there. Employers can avoid paying damages if they are able to show their compensation fits into one of four exceptions that make it legal for women to be paid less than men:

  1. A seniority system
  2. A merit system
  3. A compensation system based on quantity or quality of production
  4. “A differential based on any other factor other than sex.”

What the last exception means was the topic of a recent Ninth Circuit case, Rizo v. Yovino. The opinion is currently under consideration by the entire en banc panel of the Ninth Circuit. Aileen Rizo was a math consultant for the Fresno County pubic schools. After working there for a time, she discovered that her male counterparts were all paid substantially more than she was.

The district used a “Standard Operation Procedure 1440” to set starting salaries of management-level employees like Rizo. The procedure laid out 12 levels with steps within each. A new employee’s salary was set on the step 5% above his or her last salary. For Rizo, that meant she was paid the lowest starting salary, or $62,733. But others in the same position came in at more than $80,000.

The school district admitted that it paid its male math consultants more than Rizo, but said that its procedure was “based on any other factor other than sex”, specifically the employee’s past wages. The EEOC said that wasn’t enough, because it ran the risk of perpetuating discriminatory wage disparity between men and women across the industry.

The Rizo court said that “an employer could maintain a pay differential based on prior salary (or based on any other facially gender-neutral factor) only if it showed that the factor ‘effectuate[s] some business policy’ and that the employer ‘use[s] the factor reasonably in light of the employer’s stated purpose as well as its other practices.'” The school district had argued the business purposes supporting its business policy included:

  • Objectivity in calculating starting salaries
  • Encouraging candidates to leave their current jobs to receive a 5% pay increase
  • Preventing favoritism and ensuring consistency in application
  • The judicious use of taxpayer dollars

But the District Court hadn’t weighed the validity of those purposes, or whether the school district had applied them reasonably, so the Ninth Circuit sent the case back for a more thorough consideration.

What to Do If You Are Facing Wage Discrimination

The Equal Pay Act does a lot to protect the victims of wage discrimination. It puts the onus on the employer to show any discrepancy is excusable. It also allows complainants to go straight to federal court, without pursuing administrative remedies first. However, if you have a claim under the EPA, you need to be prepared for your employer’s defense. That’s where an experienced employment discrimination attorney can help.

At Eisenberg & Baum, LLP, our gender discrimination attorneys can help you prepare your case to stand up to industry defenses. If you believe that you are being paid less than your counterparts because of your gender, contact Eisenberg & Baum, LLP, today to schedule a free consultation.

Do Men Have a Right to Paternity Leave?

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There is a lot to think about when a man’s partner is expecting a child. Many new fathers want to take time off work to address the practical issues of caring for a newborn, and to bond with their new children. But will doing so put your job at risk? Do men have a right to paternity leave from work?

In this blog post, I will review the federal laws related to parental leave in the United States, including the Family Medical Leave Act. I will discuss the EEOC v. Estee Lauder Companies, Inc., and how Title VII of the Civil Rights Act can be used to protect men’s right to paternity leave. I will also explain when and how an employment attorney can help get fathers time off after their children come home.

Do Men Have a Right to Paternity Leave Under the FMLA?

The answer to the question “Do men have a right to paternity leave?” depends on what you mean by the question. When you are looking into parental leave, it is important to distinguish between paid and unpaid time off. The United States is the only country among 41 nations surveyed by the Organization for Economic Cooperation and Development (OECD) that does not have any level of mandatory paid parental leave. Instead, the decision to offer paid parental leave is left to the individual companies. If they choose not to offer this employment benefit, there is little an employee can do short of finding another job.

However, there is a national right to unpaid parental leave under the Family Medical Leave Act (FMLA). The law requires public agencies, public and private schools , and companies with at least 50 employees to provide employees with up to 12 weeks of unpaid leave each year. This leave can be used for:

  • Serious health conditions
  • Care of a spouse, child or parent with a serious health condition
  • Placement of a foster or adoptive child with the employee
  • Parental leave for the birth and care of a newborn child of the employee

To be eligible, employees must have worked for their employer for at least 12 months and at least 1,250 hours in the past 12 months. They must also work in a location where the company employs at least 50 employees within 75 miles.

Unpaid FMLA leave applies to mothers and fathers, natural and adoptive parents alike. If your family has the financial means to do so, this means that men have the right to up to 12 weeks of paternity leave to connect with their children.

How Can Title VII Help Fathers Seeking Paid Paternity Leave?

Many two-income families would rather not resort to unpaid FMLA leave, especially given the costs connected to bringing home a new child. There may be no universal right to paid paternity leave, but where a company offers paid maternity leave, Title VII of the federal Civil Rights Act requires that benefit to apply to fathers too, regardless of gender.

Earlier in 2017, the Equal Employment Opportunity Commission (EEOC) took Estee Lauder to court on this issue. The EEOC’s complaint said the makeup and skin care manufacturer had violated Title VII and the Equal Pay Act by offering different parental leave benefits to men and women in their employ. Under the company’s parental leave program, Estee Lauder would pay for leave provided to new mothers to recover from childbirth, as well as an additional 6 weeks of parental leave to bond with their children. New fathers were only granted 2 weeks of child bonding time. The lawsuit said that new mothers also receive flexible return-to-work benefits when their maternity leave expired, but fathers didn’t have the same opportunities.

Title VII and the Equal Pay Act prohibits discrimination in pay or benefits based on sex. The EEOC said in its complaint that Estee Lauder’s policy violated those laws by setting different time limits and conditions on maternity leave and paternity leave of their employees. The case is still ongoing, but it makes clear that an employer cannot treat men seeking paternal leave differently because of their sex.

Where to Start to See if You Have a Right to Paternity Leave

If your wife or partner is expecting a child, now is the time to start investigating your right to paternity leave. The employment discrimination attorneys at Eisenberg & Baum, LLP, can help you uncover your options and determine if there are any claims under state or federal laws. We will start by reviewing your contract or employee handbook to see what the policies are at your place of employment. Next, we will see if you qualify for unpaid FMLA leave. We may also be able to negotiate with your employer to correct civil rights violations or other illegal policies, and take the matter to court if necessary. If you need help exercising your right to paternity leave, contact us today to schedule a free consultation.

What if Your Boss Finds Out You Talked to a Sexual Harassment Attorney?

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If you are facing sexual harassment at work, you may feel torn between wanting to explore your legal options and not wanting your boss to find out you talked to a lawyer. You may be worried that you could be fired — or your work life could get worse — if your boss finds out you talked to a sexual harassment attorney. Find out what an attorney can do to protect your privacy and what you can do to protect yourself.

In this blog post, I will review attorneys’ professional responsibility of confidentiality, and what that means for employees facing sexual harassment. I will also explain how federal civil rights laws protect against retaliation. Finally, I’ll provide five tips to protect yourself from retaliation if you decide to talk to a sexual harassment attorney.

Sexual Harassment Attorneys Commit to Confidentiality

All lawyers are required to comply with professional responsibility rules designed to protect our clients from harm caused by our work. One key rule is attorney-client confidentiality. Every state’s language is slightly different, but generally speaking, this rule says attorneys may not reveal information relating to their representation of a client without the client’s consent. Lawyers are also required to take reasonable steps to prevent accidental disclosure of a client’s information.

Attorney-client confidentiality starts at the consultation. Even if we determine that you don’t have a claim, or you decide to proceed without us, it is our job to make sure your privacy is protected.

Sexual harassment lawyers take attorney-client confidentiality very seriously. We understand the sensitive nature of our work, and the possible effects of early disclosure. We will work with you to ensure that you are safe before your employer learns you have sought private legal advice.

Sexual Harassment Retaliation Is Illegal

Title VII of the Civil Rights Act says that sexual harassment at work is illegal. It also goes further to protect employees investigating possible sexual harassment claims by prohibiting retaliation. It is unlawful for an employer to punish job applicants or employees when they assert their rights under Title VII. Your employer may not retaliate you for any “protected activity” including:

  • Filing an internal complaint, union grievance, EEOC complaint or federal lawsuit
  • Participating in an employer or EEOC investigation as a party or witness
  • Communicating with a supervisor or manager about workplace harassment
  • Refusing to participate in harassment or discrimination
  • Resisting sexual advances or intervening to protect others
  • Asking about salary information

You are protected from retaliation even if it turns out you don’t have a valid sexual harassment claim. You employer could face charges for retaliating against you as long as you reasonably believed you were working to protect your rights or the rights of other employees to be free from discrimination. You could potentially be terminated or disciplined for unrelated reasons during an investigation, but your employer cannot legally do anything to discourage someone else from complaining about future discrimination.

Retaliation is its own cause of action. That means it applies even if your meeting with a sexual harassment lawyer ends without a case being filed. If an employer disciplines you for meeting with a lawyer to discuss your rights, that alone is enough to file an EEOC charge or federal lawsuit.

5 Ways To Protect Yourself From Retaliation If You Talk to a Sexual Harassment Attorney

Retaliation may be illegal, but it still happens. It is always better to avoid the hurt and financial damage caused by an unlawful termination than to be compensated after the fact. Here are some things you can do to protect yourself if you talk to a sexual harassment attorney and are worried about retaliation.

1. Don’t Talk About Your Complaints With Coworkers

It can be tempting to vent your frustrations about sexual harassment with your coworkers at the office. But if you are concerned about retaliation, it is better to keep your complaints to yourself. The unfortunate truth is that even your closest working friends may feel pressure to reveal what they were told to save their own jobs or advance their careers. Open offices, communal break areas, and factory floors are also great places for gossip. If your conversation is overheard it could quickly get back to your supervisor.

2. Don’t Use a Company Email or Smartphone

It is easy to assume that what happens through email or private message will stay between you and the recipient. But if you are using a company email server or smartphone, your boss may have the ability to view your communications. Always use private equipment to connect with your sexual harassment attorney. It may be inconvenient, but it is the only way to ensure your privacy and protect against retaliation.

3. Don’t Keep Your Harassment Logs in the Office

In many sexual harassment cases, your attorney will advise you to create a harassment log. Whether in electronic form or a paper binder, this log gathers the evidence your employment discrimination lawyer will need if the case goes to court. But the log can also be used against you and prompt retaliation if your manager gets a hold of it. Be sure to bring your harassment log home with you every day, or better yet, keep it outside the office altogether.

4. Don’t Take Attorney Calls on the Clock

Developing a sexual harassment claim often takes time, and repeated communication with your lawyer. But even if your boss hasn’t figured out how to monitor your emails, he or she probably knows how to eavesdrop. When your sexual harassment lawyer calls while you’re on the job, don’t take the call. Unless you are immediately able to step away to someplace private, let it go to voicemail. You may also want to schedule calls for your lunch break (off site) or after the end of your shift.

5. Don’t Post on Social Media

Today many people choose to live a very public life. They post about every aspect of their lives on social media, from the death of a loved one to what they ate for dinner. But if you are at all concerned about retaliation, you should make an exception for your sexual harassment matter. When it comes to ongoing legal issues, mum’s the word on Facebook, Twitter, Instagram, or any other social media platform. Don’t post anything about the issue — you meeting with the lawyers, your decision, or even what is happening at work. Remember that if your case goes to trial, whatever you post could become evidence for your employer.

By the time sexual harassment pushes you to speak to an attorney, it can seem all-consuming. You may rightfully fear that your boss will find out and retaliate against you. But by being discrete and protecting your privacy, you and your lawyer can help you ensure that a consultation doesn’t cost you your job.

At Eisenberg & Baum, LLP, our experienced workplace harassment attorneys take your privacy seriously. We will meet with you confidentially to review your case, and your options, and help you decide when, where, and how to file your claim. Contact us today to schedule a free initial consultation and get your case started.

Retiring Judge Posner’s Legacy on Employment Discrimination Cases

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Judge Richard Posner’s sudden retirement from the 7th Circuit Court of Appeals in September took many lawyers and commentators by surprise. But Posner’s legacy on employment discrimination cases promises to live on for some time to come.

In this blog post, I will review the impact of Judge Richard Posner of the United States Circuit Court of Appeals, Seventh Circuit. I will discuss how his opinions seemed to shift in favor of employees over time, culminating in one of the most controversial employment discrimination cases in recent memory: Hively v. Ivy Tech Community College.

During his 35 years on the federal bench, Judge Posner was known as a prolific writer, and a pragmatic decision maker. Over time, his opinions on employment discrimination cases have shaped the law and the practice, leaving quite the legacy.

Judge Posner on Age Employment Discrimination Cases

Judge Posner didn’t start out as a favorite among employment discrimination attorneys. Many of his early opinions framed employment law in terms of economics. That did not always fair well for the workers, particularly in the area of age discrimination. In his 1995 book Aging and Old Age, Posner questioned the need for a federal age discrimination law at all saying:

The people who make employment policies for corporate and other employers and most of those who carry out those policies about hiring or firing specific workers are at least 40 years old and often much older. … Employers—who have a direct financial stake in correctly evaluating the abilities of their employees and who for the most part are not young themselves—are unlikely to harbor either serious misconceptions about the vocational capacities of the old (so it is odd that employment should be the main area in which age discrimination is forbidden) or a generalized antipathy toward old people.

He went on to compare the situation to a black-majority nation passing laws to protect black people from race discrimination. The position was controversial as it was bold. However, over the years Posner’s legacy on employment discrimination cases began to soften, and the once staunch conservative began to take a more libertarian perspective that benefited American workers.

Posner’s Legacy on Employment Discrimination and Sexual Orientation

Judge Posner was exceedingly prolific. In 35 years he penned over 3,300 opinions. But perhaps one of his most noteworthy opinions was also one of his most recent: a concurrence in Hively v. Ivy Tech Community College. In Hively, a part-time adjunct professor sued her employer, Ivy Tech Community College of Indiana for sexual discrimination. She said she had been passed over for full-time positions between 2009 and 2014 because her employers had learned she was a lesbian. In an en banc decision by the entire 7th Circuit bench, Professor Hively’s claim of sexual orientation discrimination won out.

Posner joined with the majority decision, ruling that Title VII’s prohibition against discrimination based on sex included the sex of a person’s intimate partner. He also went on to pen a concurring decision saying that time and circumstances had changed the way the legal community understood the word “sex” in the Civil Rights Act.

“Sex” in 1964 meant gender, not sexual orientation. What the framers and ratifiers understandably didn’t understand was how attitudes toward homosexuals would change in the following half century. … We should not leave the impression that we are merely the obedient servants of the 88th Congress (1963–1965), carrying out their wishes. We are not. We are taking advantage of what the last half century has taught.

The opinion was true to Posner’s legacy on employment discrimination, placing pragmatic concerns above the letter of the law. It also recognized a key distinction in modern legal discourse: that sex means far more than mere biology.

Posner and the Pro Se Litigant

When he announced his retirement on September 1, 2017, Posner told the Chicago Daily Law Bulletin that his abrupt departure was due to “difficulty” he was having with the other judges and their treatment of pro se litigants (people who represent themselves in court). He believes these people “deserve a better shake”.

According to the Bulletin, about 55-60% of the 7th Circuit’s appeals are filed by people representing themselves without a lawyer. That included Professor Hively. However, most of these cases were decided without a hearing, on the written materials alone. Posner felt this was unfair. Now that he has retired, he intends to continue to teach and publish books, with a focus on social justice reform.

Posner’s legacy on employment discrimination is certain to be a lasting one. From his numerous opinions, to his outspoken advocacy for the individuals who appeared before him in court, he has become a standard for the judiciary over the last three decades. His wit, and his wisdom will be missed.

At Eisenberg & Baum, LLP, our experienced discrimination attorneys are ready to help with anything from age discrimination to sexual orientation cases. We can help you identify options, negotiate solutions, and plead your case before the EEOC or a federal judge. Contact us today to schedule a consultation and review your case.

#MeToo: Hollywood Sexual Harassment Scandal Takes Social Media By Storm

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When the average person looks at the Hollywood film industry, celebrity, parties and even sex are often seen as just part of the lifestyle. But a recent Hollywood sexual harassment scandal is showing that when it comes to movie mogul Harvey Wienstein, much of that sexual energy was non-consensual. News reports show the scandal has spanned over 20 years and include some of the industry’s most famous actresses.

In this blog post I will review the New York Times investigation into sexual harassment claims against Hollywood movie mogul Harvey Weinstein. I will address how the news spread to Twitter and other social media outlets in the form of the #MeToo movement. And I will explain how the victims of sexual assault and sexual harassment can get help from employment discrimination attorneys.

Harvey Weinstein and the 20-Year-Old Hollywood Sexual Harassment Scandal

On October 5, 2017, the New York Times released its investigative report “Harvey Weinstein Paid Off Sexual Harassment Accusers for Decades”. The report by Jodi Kantor and Megan Twohey uncovered how Hollywood producer Harvey Weinstein had been sexually harassing women in his industry for more than two decades. The story was told by now-famous famous actresses, including Ashley Judd, Gwyneth Paltrow, and Angelina Jolie, as well as assistants like Lauren O’Connor and interns and temporary employees like Emily Nestor.

Several women described how Weinstein would invite them to the Peninsula Beverly Hills hotel on the pretext of a business meeting. When they arrived, they would be greeted by Weinstein, nude, or nearly so, who asked them to do everything from give him massages to watch him shower. He would promise to bolster their careers and help them make it in a highly competitive industry. Judd told the New York Times she remembered thinking:

How do I get out of the room as fast as possible without alienating Harvey Weinstein?

The problem was that Mr. Weinstein was such a powerful player in the Hollywood film industry. His films won Oscars, his company was flourishing, and he had a business reputation as a “liberal lion”. But behind closed doors, women in the industry, even his own advisor, described him more like a “old dinosaur” caught up in the ways of the past. And that included a lengthy pattern of sexual harassment.

Sexual Harassment Awareness Hits Social Media in the #MeToo Movement

When the Hollywood sexual harassment scandal went public, it got far more attention than other recent allegations within the tech industry or among California venture capitalists. Because of the celebrity names involved, the matter quickly caught fire on social media in the form of a hashtag: #MeToo.

The “Me Too” movement was started by Tanara Burke, a public speaker and community organizer in New York. It was intended to “support and amplify the voices of survivors of sexual violence, assault, and abuse.” But the movement hadn’t gained much traction until Actress Alyssa Milano responded to the Weinstein Hollywood sexual harassment scandal by giving the movement a Twitter hashtag on October 15.

Within 24 hours, more than 1 million tweets and 12 million Facebook posts had flooded social media, including everyone from Lady Gaga, to Anna Paquin, and even Senator Elizabeth Warren. The social media storm threw light on just how prevalent sexual harassment is in the movie industry, and across the country. Nationwide, women, and some men, came out with their own stories of abuse, violence, and gender discrimination.

Going Beyond Awareness to Help Sexual Harassment Victims

This was not the first time Harvey Weinstein had been the center of sexual harassment allegations. In fact, his company is reported to have settled at least eight sexual harassment and assault complaints dating back to 1990. However, each settlement brought with it a confidentiality agreement that prevented Weinstein’s victims from speaking up in favor of more systemic changes.

A toxic culture in a business or industry doesn’t change overnight. Since the New York Times article and the #MeToo movement, Weinstein has been fired from his company and removed from the Academy of Motion Picture Arts and Sciences (the organization that gives out the Oscars). But even if Weinstein’s career is over, the #MeToo movement shows that the problem of sexual harassment and assault is far larger, and more pervasive.

Perhaps the biggest advantage of a social media movement like this is that it empowers more sexual harassment victims to seek out help. Whether in the Hollywood movie industry or in a blue-collar factory job, every employee has the right to be free from gender discrimination and sexual harassment. When the owner of a company, manager, supervisor, or coworker crosses the line, an employment discrimination attorney can help set things right. Using state and federal laws that protect workers, sexual harassment attorneys can negotiate changes in the workplace, and sue to recover lost wages and other damages that are the result of the employer’s bad behavior.

The women (and men) of the #MeToo movement don’t have to feel like there is nothing they can do. At Eisenberg & Baum, LLP, we have sexual harassment attorneys ready to help them fight back against abuse at work. If you have been the victim of sexual harassment or gender discrimination, we will meet with you and develop a strategy to get you back to a comfortable working environment. Contact us today to schedule a free consultation.

Job Discrimination Against Black Women: Racial Discrimination, Sex Discrimination, or Both?

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Black women sometimes face serious discrimination at work. But it can be hard to tell whether job discrimination against black women is based on their sex, their race, or both. Find out what protections are available and what the differences are between racial discrimination and sex discrimination claims.

In this blog post I will review potential job discrimination claims by African American women against their employers. I will discuss the similarities and differences between racial discrimination and sex discrimination, and explain how an employment discrimination attorney can help make the most of the claims.

Racial Discrimination and Sex Discrimination Options

Title VII of the federal Civil Rights Act protects against job discrimination based on race, sex or gender, and other inherent traits. The law makes it illegal for employers to make hiring decisions based on these traits, treat their employees differently because of them, or allow a hostile work environment to exist.

Racial discrimination claims can be based on a person’s actual or perceived race, national origin or color. It can include racial slurs, offensive or derogatory remarks, or the use of racially-offensive symbols.

Sexual discrimination claims are similar, but the behavior must be based on a person’s sex or gender identity (including transgender status). Many sex discrimination claims are based on sexual harassment . This includes unwelcome sexual advances, requests for sexual favors, or other unwanted comments or physical contact that is sexual in nature. A sexually hostile work environment can also exist when comments are made about a person’s gender, even when not specifically targeting the employee who files the claim.

Women who face wage discrimination also have the ability to file a separate claim under the Equal Pay Act. This law prohibits employers from paying men and women differently for substantially equal work. When a woman faces sex discrimination, she often has claims under both Title VII and the EPA.

Black Women Face Complicated Job Discrimination Claims

Unfortunately, black women face substantial discrimination at work and when they are looking for jobs. Research suggests that black women continue to be paid significantly less, and receive fewer employment opportunities than their white or male counterparts. But when African American women face discrimination at work, it can sometimes be hard to tell whether the bias is against their race, or their sex.

Sometimes, racial or sexual bias is obvious. When a person is forced to endure racial slurs or sexual advances, it can be clear which claims apply. But in other cases, particularly where an employer uses illegal biases to make hiring, firing, promotion, or pay decisions, it can be harder to tease apart what caused the decision.

In these cases, your employment discrimination attorney may need to gather a lot of information about your workplace to build a case against your employer for racial discrimination, sexual discrimination, or both. When direct evidence or statements aren’t available, you may need to establish your claim by demonstrating:

  • Racial or sexual trends in hiring, firing, or promotion
  • Aggregate data regarding pay and compensation by your employer
  • How your employer reacted to your internal complaints
  • Who was given the job, raise, or duties you were denied.

Raising Alternative Discrimination Claims

Sometimes all that information isn’t available right away. It may only become obvious whether discrimination was based on race or sex as the case is developed. Because of this, when an employment discrimination attorney helps a black woman file a claim for job discrimination, the complaint will often raise “alternative” discrimination claims. By listing both race and sex as a basis for illegal discrimination in her initial complaint with the Equal Employment Opportunity Commission or in federal court, a black woman can protect her right to sue, even if it isn’t yet clear which type of discrimination applies. As the case develops and an employer’s motives become clear, one or the other claim may sometimes be dropped. But in other cases, both race and sex contributed to the hostile workplace environment on the job.

Black women face complicated job discrimination issues every day. If you believe you have been singled out at work, because of either your race or your gender, the employment discrimination attorneys at Eisenberg & Baum, LLP, can help. We will review your situation and help you plan a strategy that preserves all of your claims and protects your rights. Contact Eisenberg & Baum, LLP, today to talk to an employment discrimination attorney.

Bass Pro Settles with EEOC for $10.5 Million on Racial Discrimination and Retaliation Claims

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For six years, the EEOC and Bass Pro Shops have been battling in court over whether the outdoor equipment retailer violated federal racial discrimination and retaliation laws. Now the parties to the Bass Pro discrimination claims have reached a $10.5 million settlement, which promises to resolve the nationwide class lawsuit that has plagued the company and its potential and former employees for years.

In this blog post I will review the Equal Employment Opportunity Commission’s (EEOC’s) settlement with Bass Pro Outdoor World under Title VII of the Civil Rights Act. I will explain what a “pattern-or-practice” lawsuit is, and how it can be used to protect employees from racial discrimination.

The EEOC’s Lawsuit Against Bass Pro Outdoor World

In 2011, the EEOC filed a complaint in federal district court claiming that Bass Pro Outdoor World, LLC, had engaged in a pattern or practice of racial discrimination against African-American and Hispanic applicants. The sporting-goods retailer has 82 stores across the country. According to the EEOC’s allegations, the hiring policies or practices used in these stores resulted in the company rejecting qualified job applicants because of their race and retaliating against employees who spoke out against the practice. The EEOC said Bass Pro had been discriminating in its hiring practices since at least November 2005, denying qualified Black and Latino / Latina applicants retail positions including:

  • Cashier
  • Sales associate
  • Team leader
  • Supervisor
  • Manager

The Complaint alleged that this pattern or practice violated Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on race and national origin. The law also protects employees from retaliation based on their complaints and requires companies to maintain certain employment records. But the EEOC said that Bass Pro had failed on all three requirements.

What Is a Pattern-or-Practice Lawsuit?

The EEOC’s complaint against Bass Pro included “pattern-or-practice” claims that provide relief to a class of employees and applicants of the company. It can be used where a company repeatedly and regularly violates the statute (beyond isolated incidents). It can be used in cases where a company’s pattern of behavior (such as hiring one race over another) does not become apparent right away, but only by reviewing the behavior over time.

Class Action Lawsuit or Pattern-or-Practice?

The EEOC has the authority to file these pattern or practice claims directly under Title VII, rather than meeting the requirements of a formal class action lawsuit. Class actions usually must be so large that naming individual plaintiffs would be challenging. There are also other complex requirements an employment discrimination attorney must meet before one lawsuit can represent the interests of an entire class of people, many of whom may not know the case is happening until it is done. Using a pattern-or-practice lawsuit, the EEOC can file one lawsuit on behalf of groups of employees, even without meeting the class action requirements.

Time Limits for Patterns of Employment Behavior

A pattern-or-practice lawsuit also allows the EEOC to avoid certain time limits set on individual racial discrimination cases. Title VII requires a charge to be filed within 180 (or in some states 300 days) of the unlawful event. For example, if a cashier was fired because of her race, she would have to file a complaint with the EEOC and the EEOC would have to file its formal charge within approximately 6 months of the day she was fired. Because employment patterns emerge over time, there is no one date when the unlawful behavior occurred. The EEOC has taken the position that this allows it to file pattern-or-practice lawsuits going back further than 180 or 300 days, because evidence of the illegal racial discrimination wasn’t available at the time.

Limits on Damages under Pattern-of-Practice Lawsuits

The pattern-or-practice lawsuit is not without its limitations. The Civil Rights Act allows individual plaintiffs filing complaints under Section 706 to collect compensatory damages (for costs related to the illegal conduct) and punitive damages (which punish the company for its actions). But Section 707, which applies to pattern-or-practice lawsuits, doesn’t include these forms of damages. If the EEOC files its charge under 707 alone, it could be giving up the employees’ rights to certain kinds of damages available as part of a direct lawsuit.

The Bass Pro Racial Discrimination Settlement

Over the last six years, EEOC vs. Bass Pro has been litigated at the trial court and appellate court levels. An order entered on January 3, 2017, cemented the class of employees and paved the way for litigation to move forward. Then on July 26, 2017, the EEOC announced that it had settled with the retailer for $10.5 million and the promise to make changes at the store and corporate level. The funds will go to employees and applicants who were negatively affected by the store’s hiring policies and retaliatory practices.

Under the settlement, Bass Pro Outdoor World will appoint a director of diversity and inclusion, who will collaborate on hiring and reach out to potential employees in minority communities. It will also update its policies and hiring practices, train management and employees in anti-discrimination practices, and participate in minority-focused job fairs. EEOC Deputy General Counsel James Lee said in the statement:

The EEOC is pleased to have reached what the agency believes to be a fair resolution. . . . We look forward to working with Bass Pro in implementing the consent decree.

An EEOC complaint is often a necessary step for employees seeking compensation for illegal racial discrimination and retaliation. Whether a pattern-or-practice charge or a private lawsuit is best will depend on the employee’s circumstances and goals. At Eisenberg & Baum, LLP, our employment discrimination attorneys understand the options available to employees. If you have been treated differently at work or on a job interview because of your race, we can help you decide the best course of action. Contact Eisenberg & Baum, LLP, today to talk to an attorney and decide how best to protect your rights.

Dating Your Employee: When is it Sexual Harassment?

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Is dating your employee ever okay? Or is office romance always a recipe for disaster? What happens when a consensual relationship to turn into a sexual harassment problem?

In this blog post, I will discuss the case of a Colorado correctional officer whose sexual encounter with her superior escalated into alleged sexual harassment. I will explain what makes romantic advances illegal, and explain what harassed employees can do to escape the hostile work environment.

Not Every Date Is Sexual Harassment

It is not automatically illegal for a manager or supervisor to date his or her employee. Consensual relationships happen in the workplace every day. But employers and supervisors need to carefully consider the consequences before taking that first step toward asking a direct report on a date.

Sexual harassment is illegal under Title VII of the federal Civil Rights Act, as well as state laws. The law covers unwelcome sexual advances, requests for sexual favors, and other words or actions that create a hostile or offensive work environment based on a person’s sex. It also applies to retaliation if a person files a compliant internally or with the Equal Employment Opportunity Commission (EEOC).

Just because you ask a co-worker out doesn’t mean you are lining yourself up for a sexual harassment lawsuit. Isolated incidents, teasing, offhand comments and even consensual flirting are allowed under the statute. The problem is when those relations cross the line and cause serious offense.

Colorado Correctional Officer’s One Night Stand Turns Ugly

That is exactly what one female Colorado correctional officer says happened to her in a lawsuit filed recently in federal district court. According to the complaint, Leticia Cornella took a job as a corrections officer in September 2015. Soon after, she had a one-time sexual encounter with her supervisor, Scott Lancaster. After they were intimate, Cornella decided not to continue the relationship because Lancaster was her superior. According to the lawsuit, Lancaster originally agreed with her decision, but then began harassing her at work.

A couple of months after their conversation, he began making sexual advances against her. She refused him and “[h]e then stormed out of her office, enraged. He would not, he said emphatically, be ignored.” Lancaster allegedly continued to make lewd comments and gestures toward Cornella, even in front of her new husband. He retaliated against her at work, calling her a “porn queen”. Cornella requested a transfer, but instead Lancaster was transferred temporarily.

When the two ended up back in the same facility, Lancaster’s sexual harassment intensified “to the point of obsession.” As a result, Cornella began to experience anxiety and depression and was forced to take an unpaid leave of absence under the Family Medical Leave Act. When she complained to the head of the Department of Corrections, an internal investigator said there was nothing to be done because the original encounter between them was consensual. The complaint fought back against that finding, stating:

It is the rare case in which a sexual encounter between a supervisor and his or her underling leads to a stroll into a romantic sunset of marital bliss. . . . More often, the results of such an encounter leads to what has occurred in this case: misunderstood motives, unnecessary fear of reprisal and, most harmful of all, the exercise of power and dominance by a male supervisor over the future employment opportunities of a female employee.

When Dating Crosses the Line to Sexual Harassment

The difficult job of managers, supervisors, and human resource experts is to ensure that consensual dating doesn’t end in sexual harassment claims. Some businesses adopt policies against employee fraternization, hoping that prevention will shield them from the risks. Even when these policies are in place though, sexual relations outside the office can sometimes find their way into a person’s work life.

Employers and employees alike should be on the lookout for certain tell-tale signs that a relationship has gone too far and become sexual harassment:

  • Hiring decisions are based off of the existence or denial of a romantic relationship
  • Conduct escalates to a point that a reasonable person would be offended
  • Protests and complaints about the conduct are ignored or downplayed
  • The targeted employee requests a transfer or time off of work

When these things begin to happen, it becomes more likely that you have gone beyond dating your employee and may be looking at a sexual harassment claim.

What To Do If You are Sexually Harassed at Work

The fact that you once engaged in a consensual relationship doesn’t mean you have to tolerate being sexually harassed at work. If your relationship has ended or your partner’s conduct is interfering with your work you need to:

  • Make it clear at work and before witnesses that you do not welcome the advances
  • Document your objection by filing a complaint with your HR department or employer
  • Object every time the person disrespects your wish not to be harassed at work
  • Request that the person be transferred or that shifts and duties be reassigned to separate you
  • File a union grievance if your supervisor fails to respond to your complaints and requests

If your employer will not stand up against your ex-partner’s sexual harassment, you may need to take the matter to the EEOC or to the courts. The experienced sexual harassment attorneys at Eisenberg & Baum, LLP, can help you review your options and choose a strategy that protects you, your privacy, and your priorities. Don’t wait until sexual harassment is making you ill. Contact Eisenberg & Baum, LLP, today to talk to an employment discrimination attorney.