When is Age Discrimination Against the Law?

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Age discrimination at work can be hard to detect and even harder to prove. Many applicants never even know that they were illegally passed over because they were too old. What should you be watching for? How will you know whether what happened to you is illegal? When is age discrimination against the law?

In this blog post, I will review the Age Discrimination Enforcement Act (ADEA) and explain what is and isn’t illegal age discrimination. I will also summarize past cases by the Equal Employment Opportunity Commission (EEOC) on behalf of older employees, including a recent settlement with the restaurant chain Texas Roadhouse.

ADEA Provides 50 Years of Protection Against Age Discrimination

The Age Discrimination Enforcement Act was passed in 1967 to protect older Americans from losing access to jobs simply because of their age. It applies to both employees and job applicants, and protects them against any unfavorable employment decisions based on age including:

  • Hiring
  • Firing or lay-off
  • Promotion
  • Pay, bonuses, compensation, or benefits
  • Job assignments and training

It also protects against retaliation for anyone who assists in an ADEA investigation, proceeding, or litigation, including witnesses.

However, unlike other types of workplace discrimination, which apply to any action taken based on a protected trait, the ADEA applies to one specific group: workers and applicants age 40 or older. In addition, it is only designed to protect against discrimination based on old age. If a policy favors older employees it will be upheld even if 40-year-olds are treated less favorably than their older coworkers.

In 1990, the Older Workers Benefit Protection Act added additional protections to keep employers from canceling older workers’ benefits simply because of cost. In certain limited situations, an employer may be able to reduce benefits based on a worker’s age, but doing so must not drop the cost below what is being paid for younger employees’ benefits.

Examples of Age Discrimination at Work

Every case of age discrimination is different. Some are based on employers’ explicit statements or questions. Others must be inferred based on hiring trends. How closely the discrimination must be tied to the employment decision also depends on the type of employer. Private employers with 20 employees or more are prohibited from making employment decisions “because of” age, but federal employers’ decisions must be “made free from any discrimination based on age” even if there are other factors involved. Here are some examples of successful age discrimination claims and lawsuits through the EEOC:

  • Denying a pay raise after a successful performance review. Enriqueta T. v Dep’t of the Army, EEOC Appeal No. 0120143049 (Sept. 2, 2016)
  • Passing over a 12 year veteran of the position for promotion to program director, in favor of a younger person. Donna W. v Dep’t of Transp., EEOC Appeal No. 0720160002 (Aug. 17, 2016), request for reconsideration denied EEOC Request No. 0520160522 (Dec. 13, 2016).
  • Asking about how many years an applicant had before mandatory retirement. Geraldine G. v. U.S. Postal Serv., EEOC Appeal No. 0720140039 (June 3, 2016).
  • Giving an older employee involuntary reassignment to a less desirable position. Kristy D. v Dep’t of the Interior, EEOC Appeal No. 0720160003 (Aug. 10, 2016).
  • Passing over a high-scoring applicant for a trainee program in favor of selectees without comparable experience. Cletus W. v Dep’t of the Treasury, EEOC Appeal No. 0720160008 (Aug. 3, 2016).
  • Harassing an employee because of his age by referring to him as “the old guy” and asking if he could make his way to a meeting or remember things. Bryan T. v Dep’t of Homeland Sec., EEOC Appeal No. 0120122110 (March 18, 2016).
  • Passing over a qualified candidate whose résumé showed he was above age 40 and highly qualified. Alton F. v Dept. of Def., EEOC Appeal No. 0120140428 (April 3, 2014).

Age Discrimination Hits Texas Roadhouse

Earlier in 2017, the Equal Employment Opportunity Commission (EEOC) announced a settlement with the Kentucky-based restaurant chain Texas Roadhouse. The company agreed to pay $12 million to a class of applicants who claimed they had been denied front-of-the-house positions (including servers, hosts, assistants, and bartenders) because of their age. In addition, Texas Roadhouse must establish anti-discrimination policies for hiring and recruiting, bring on a diversity director, and submit to monitoring of its hiring records. In its official press release, EEOC New York District Director Jeffrey Burnstein said:

Identifying and resolving age discrimination in employment is critical for older Americans. The ability to find a new job should not be impeded because an employer considers someone the wrong age.

EEOC trial attorney Mark Penzel added:

Applicants rarely know that they have been denied a job because of their age. When the Commission uncovers such evidence, it will act aggressively and doggedly to remedy the violation.

When age discrimination claims arise, they require skilled employment discrimination attorneys to gather the documentation to prove the case. Because many of these cases involve something not happening (i.e. a person not getting the desired job, or being passed over for promotion), it takes an aggressive approach to make the case that the omission was the result of age discrimination and not some other, legal factor.

At Eisenberg & Baum, LLP, our employment discrimination attorneys know what it takes to win an age discrimination case. We can help you understand your rights to get and keep the work you want, and what your remedies might be if you have faced employment discrimination based on your age. Contact Eisenberg & Baum, LLP, today for a free consultation.

Were Walmart Workers Punished for Taking Sick Days?

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Imagine having to choose between your job and taking care of your sick child. How would you feel if you were told you could go to the emergency room, but it would be treated as an unexcused absence and you could be fired? A recent lawsuit says these are the choices Walmart workers face every day: work or be punished for taking sick days. Were Walmart workers punished for taking sick days?

Photo credit: Mike Mozart — some rights reserved under Creative Commons Public License

In this blog post I will review the report “Pointing Out: How Walmart Unlawfully Punishes Workers for Medical Absences” and the lawsuit filed by A Better Balance. I will also discuss sick leave laws under the Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA).

The Report on Walmart and Medical Absences

In November 2016, the non-profit organization A Better Balance filed a complaint with the Equal Employment Opportunity Commission (EEOC) on behalf of Arleja Stevens, a Walmart employee. She said pregnancy complications had led to sick time and eventually caused her to lose her job at Walmart. The complaint said that company policies related to unexcused absences and medical time off work violated the ADA and the FMLA, as well as state laws. In June 2017, A Better Balance filed a lawsuit based similar allegations with a different plaintiff. A second EEOC complaint was filed a less than two months later.

The legal proceedings are based on a report published by A Better Balance in June. The report covered surveyed of over 1,000 Walmart workers (identified through social media). It compiled stories about Walmart’s “absence control program”. Among the results, A Better Balance reported that 78% of workers who were absent because of a medical emergency were punished for it. 85% of Walmart employees saw this discipline as a problem. A Better Balance alleges it was also against federal and state laws.

Walmart’s Absence Control Program Raises Concerns

Walmart uses a discipline system where employees receive points for violations of company policy. This can include anything from poor performance to disrespecting supervisors. It also applies to absences. Each unauthorized absence is one point. Arriving over 10 minutes late for a shift is half a point. If an employee fails to notify the company at least one hour before the missed shift, the no-call/no-show is four points.

Walmart workers can lose their jobs if they accumulate enough points. During the first six-month period, an employee can be terminated when he or she receives four points – one no-call/no-show. Even long-time employees can be terminated for receiving 9 points in a six-month period. Having any points on their records can keep employees from being assigned additional hours or receiving raises or promotions.

Official company policy says an employee can have an absence excused by notifying management three weeks in advance and receiving approval. However, most managers across the country refused to receive or review doctors’ notes from employees.

FMLA And Unexcused Medical Absences

The legal complaints center around the way the “absence control program” prevented sick and disabled workers from using the federal Family Medical Leave Act to protect their jobs. This law allows workers at companies with at least 50 employees, who have worked at least 1,250 hours in the last 12 months to receive up to 12 weeks of unpaid medical leave and come back to the same job. To qualify for FMLA, a worker must have a medical condition which:

  • Requires overnight hospitalization
  • Incapacitates the employee (or a family member) for more than 3 days in a row and require ongoing medical care
  • Are chronic, cause occasional periods where the employee (or family member) is unable to work, and requires ongoing health care
  • Includes pregnancy, child birth, or adoption of a new child

FMLA applies to the employee or anyone in his or her close family (spouses, parents, or children). To use it, workers must notify their employers in advance, or as soon as they are able after an emergency. The complaints say that Walmart’s policies prevented its workers from using the FMLA by labelling qualifying events as unexcused absences and assessing points.

ADA Scheduling Accommodations

A Better Balance also alleges that Walmart’s policy of not considering medical notes violated the Americans With Disabilities Act. This federal law prevents discrimination against workers with disabilities and requires employers to provide reasonable accommodations for documented medical needs. This can include adjusted schedules and time off work to attend treatments. Employees don’t need to know they are requesting accommodations. It is up to the employer to start an interactive process when it is notified the employee is having difficulty at work because of a medical condition. A Better Balance said that Walmart actively avoided this process by having managers ignore the medical reasoning behind employee absences.

State Laws Protect Pregnancy and Paid Sick Leave

The Walmart complaints also show how state laws can provide additional protections beyond federal law. 25 states explicitly require accommodations for pregnant employees such as time off for morning sickness and prenatal appointments. Several states also require companies to allow employees to develop paid time off. Walmart’s policies are alleged to have ignored these state laws as well.

Protecting Workers’ Rights Under Federal and State Law

Employees of large companies like Walmart can feel like they are fighting a giant when they assert their rights under the FMLA and the ADA. The skilled employment discrimination attorneys at Eisenberg & Baum, LLP, can help you identify problems in your company policy, negotiate on your behalf, and file complaints with the appropriate state and federal agencies, and in court when negotiations fail. Contact us today to schedule a free initial consultation and get your case started.

What is Workplace Intimidation?

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Workplace intimidation can make your office a toxic place to be. When your boss or coworker is subjecting you to workplace bullying, you can feel you have no choice but to quit. Find out what workplace intimidation is, and how you can stop it.

In this blog post, I will explain what workplace intimidation is and provide examples of bullying conduct. I will explain what forms of intimidation are illegal, and explain what you can do to stop it.

What Workplace Intimidation Looks Like

Workplace intimidation, which is also called workplace bullying, happens when a superior, coworker, or direct report uses physical violence or threats, blackmail, or verbal abuse to manipulate a company employee for some professional advantage. It usually occurs over time, developing a pattern of mistreatment that can negatively affect an employee’s mood, productivity, and even mental and physical health.

No two workplace intimidation situations are exactly the same. What bullying looks like will depend on the nature of your business and what your workplace typically looks and sounds like. Some common examples of workplace intimidation include:

  • Physical violence or threats
  • Yelling or screaming
  • Hostile physical posturing
  • Ridiculing or insulting you in front of coworkers or customers
  • Intentionally assigning tasks outside your expertise
  • Finding fault with your work or assigning errors to you that are not your responsibility
  • Taking credit for your work
  • Sabotaging your work or setting you up to fail
  • Raising the bar for success or setting up different standards for the targeted employee
  • Interfering with your ability to work

Is Workplace Intimidation Illegal?

Not all forms of workplace intimidation are illegal. Whether bullying behavior violates state or local laws depends on what is done, and in some cases, the motives behind the bully’s actions. However, there are some circumstances when intimidation crosses the line into illegal, even criminal behavior.

Criminal Assault

Physical assault is a crime. Depending on the specific language of your state’s criminal code, a workplace bully can be prosecuted for hitting, kicking, tripping, poking, or otherwise injuring you. Some states also allow for criminal assault charges based on offensive touching (physical contact which a reasonable person would object to), or verbal assault which causes substantial emotional injury. Threats of assaults can also sometimes result in criminal prosecution. If you have experienced physical assault or threats, most jurisdictions require you to speak directly to the police to file a complaint. A private attorney may also be able to assist you in filing civil assault charges.

Sexual Harassment

When physical or verbal conduct is based on a person’s sex or gender, it can violate federal and state laws against sexual harassment. Minor, one-time occurrences may not be enough to create a cause of action. However, the more frequent or more severe the behavior, the more likely you will be able to file a complaint with the Equal Employment Opportunity Commission (EEOC) or in federal court. An employment discrimination attorney can help you determine if you have a claim and what you need to do to preserve it.

Illegal Workplace Discrimination

When workplace bullying is based on a protected trait of the targeted employee, it can easily cross the line into illegal workplace discrimination. This applies to conduct based on:

  • Race
  • Color
  • National origin
  • Sex or gender
  • Pregnancy
  • Religion
  • Disability
  • Age

If an employer makes employment decisions (including job assignments) or allows its employees to create a hostile work environment based on one of these criteria, you may be able to file a complaint at the EEOC or in federal court. The rules about how workplace discrimination is reported depends on your employer’s policies, whether you are part of a union, and what protected trait is involved. Speak to an employment discrimination attorney to discuss your options and file the proper claims.

What to Do If Workplace Bullying Isn’t Illegal

If your situation does not violate any of the criminal or EEOC laws, you may still be able to put a stop to workplace intimidation. The Department of Labor encourages employers to establish clear anti-bullying policies that protect employees’ physical and mental health. The bigger your company, the more likely it is that there are steps you can take internally to report the abuse.

If your employer doesn’t live up to its promises or comply with its anti-harassment policies, you may be able to sue in state or federal court based on a breach of contract claim. This argument says that your employer promised to protect you from workplace intimidation and failed to do so. This kind of claim depends on the specific language of your employee handbook or company policy. Meet with a workplace harassment attorney to see if that language applies to you and your situation.

If your company does not have a formal anti-bullying policy, an employment lawyer may still be able to help. Informal negotiations on your behalf can sometimes remove the bully, reassign the targeted employee, or even help everyone in the office by creating new workplace rules of conduct.

You don’t have to put up with workplace intimidation. Whether the conduct against you is criminal, against federal or state discrimination laws, or simply wrong, an employment attorney may be able to help. At Eisenberg & Baum, LLP, our workplace harassment attorneys can meet with you to discuss your circumstances, and your options. Contact us today to schedule a meeting and fight back against the bully.

How to Report Job Discrimination

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It’s one thing to suspect you are the target of employment discrimination, but another to know what to do about it. Even if all your coworkers agree there is a problem, you still need to use the proper channels to stop workplace harassment. Find out how to report job discrimination at work and what a lawyer can do to help.

In this blog, I will review the various methods to report job discrimination, as well as discrimination in hiring. I will explain how consulting an attorney early in the process can help you secure your claim and protect your rights.

When to Report Job Discrimination

Employment discrimination happens whenever an employer bases work decisions on a protected trait of its employees. This can include hiring, firing, promotions or wage negotiations, as well as shift and duty assignments. Job discrimination can also take the form of harassment when a manager, supervisor, coworker, or even customer creates a hostile work environment because of statements or actions related to an employee’s protected traits. These traits include:

  • Race
  • Color
  • National origin
  • Sex or gender
  • Pregnancy
  • Religion
  • Disability
  • Age

When job discrimination happens, it should be reported as soon as possible. But where and how that report is filed will depend on the circumstances including your employer’s code of conduct, you state laws, and your desired outcome.

Internal Job Discrimination Reporting

In most cases, there will need to be some form of internal complaint process about working conditions before a report can be filed with the Equal Employment Opportunity Commission (EEOC) or a lawsuit filed in court. On the most basic level, asking coworkers to stop making flirtatious comments or using racial slurs, for example, is an important step to proving the behavior was unwanted.

The formality of your internal job discrimination complaint will depend on your employer’s policies. It could be as simple as sending an email to your boss or the head of the company. The bigger the business, the more likely it will have a formal complaint procedure. This is usually included in an employee code of conduct. It will lay out who receives complaints and what form they should take. No matter how straightforward the process, always document your complaints in writing (including email). Even if you have a chat with your boss, follow it up with an note thanking him or her for listening and reciting any next steps that were planned.

If you work in a labor-controlled field, reporting job discrimination will most likely include filing a grievance with your union representative. Labor unions often have strict procedures that govern when they will advocate on behalf of an employee. Failing to follow those procedures can interfere with your claim later on.

Many workplace harassment claims are successfully resolved through internal reporting. However, if your complaint is against your supervisor, especially if it has to do with employment decisions, you should be prepared to take the matter outside the office. Also, if your complaint is that a company failed to hire you because of job discrimination, you do not need to comply with its internal reporting policies.

Filing an EEOC Complaint

When internal reports can’t solve the problem, you may need to report job discrimination to the EEOC or an equivalent state agency. You do this by filing a charge at one of the agency’s field offices (generally the office closest to where you live or work). In many states, “worksharing agreements” between the EEOC and the local Fair Employment Practices Agency (FEPA) will result in simultaneous complaints being filed for violations of both state and federal workplace discrimination laws. One investigation applies to both claims and results in determinations by each agency based on its on laws.

There are time limits to filing discrimination charges with the EEOC. Generally, an employee must issue his or her job discrimination report within 180 days of the event. This deadline is sometimes extended to 300 days, if state or local laws also apply. Federal employees are under a much tighter deadline. They must usually file their complaints with the EEOC within 45 days of the incident. These are rolling dates, so if multiple instances of discrimination were involved, the employee can only receive compensation for events that happened within the appropriate period immediately before the charge was filed.

Filing a Federal Lawsuit

Sometimes, an EEOC complaint isn’t enough to address on-the-job discrimination. In those cases, an employee may need to file an employment discrimination lawsuit in state or federal court. Most of the time, the EEOC or equivalent state agency will have to sign off on the charge first, before a legal complaint can be filed. Even then, only the behavior that was part of the EEOC complaint can be included in the federal lawsuit.

An Employment Discrimination Lawyer Can Help

Even if you don’t think a federal lawsuit is necessary, it can still be a good idea to discuss how to report job discrimination with an experienced employment attorney early in the process. At Eisenberg & Baum, LLP, our employment discrimination attorneys can help you determine if what you are experiencing qualifies as illegal discrimination and create a plan to address it. We can help you understand your internal job discrimination reporting requirements so that nothing gets missed. We can also negotiate directly with your employer to correct the problem without the need for court.

Getting a lawyer involved early can also be helpful to limit the impact of retaliation. If you report job discrimination (targeting yourself or others), your employer is not legally allowed to punish you for it. Still, retaliation is a real risk. Our lawyers will help you create a plan for what to do in case your employer decides to take it out on you. We will help you:

  • Identify the subtle signs of retaliation (i.e. negative performance reviews, shift assignment changes, or being passed over for promotion)
  • Create a plan for preserving evidence of your employer’s discrimination
  • Gather support from witnesses in the workplace
  • Prepare to respond in case you are fired for filing a complaint.

An employment discrimination lawyer can also help you file your EEOC complaint and navigate the investigative process. Our employment discrimination attorneys will make sure your complaint includes all the necessary information and asserts all of your rights, including any retaliation claims. This will preserve them in case a lawsuit becomes necessary later on.

Hiring an employment discrimination attorney shouldn’t be the last straw. It should be the first step to protecting yourself and your coworkers from ongoing employment discrimination. Don’t wait until you are fired or forced to quit. Contact Eisenberg & Baum, LLP, today to schedule a consultation with a skilled employment attorney. We will help you take control of your job discrimination claim.

Sexual Harassment, a Blog Post, and a Shakeup at Uber

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Can a whistleblower ever make a difference in a big company? Do you have to make a formal complaint with the Equal Employment Opportunity Commission (EEOC), or could something as simple as a blog post make a difference? Find out how one former employee’s online complaint has caused a shakeup at the top of Uber.

In this blog post I will describe how a blog post by former Uber engineer Susan Fowler describing sexual harassment and retaliation led to an independent investigation and the resignation of CEO and founder Travis Kalanick. I will review the recommendations made to revise company policy and culture and explain how internal policy can affect claims of discrimination and harassment.

Former Employee’s Blog Reports Sexual Harassment

A former Uber site reliability engineer (SRE), Susan Fowler, left the company after a year of sexual harassment and retaliation issues. Her blog post, published in February 2017, blew the whistle on a corporate culture that gave free passes for sexual harassment to high performers within the company. She claimed that early in her employment, her manager inviting her to have sex with him and his wife in their open relationship. She complained about it to HR, but they claimed it was his first offense and only issued a warning.

Over the next several months, she learned of several other female engineers with similar experiences. HR and upper management gave similar warnings, claiming that no other complaints had ever been filed, even against the same manager.

Over the next year, internal management changes made Fowler want to change project teams. In spite of positive performance reviews and a lack of complaints, she claims her transfer was refused based on unreported performance problems. Then her next performance review was changed after the fact without notice. She claimed management relied on a lack of “upward career trajectory”. The negative review caused her to once again be rejected for a transfer and lose tuition assistance from the company.

According to Fowler, in 2015 when she joined Uber, 25% of the organization was women. By the time she left that number had dropped to 3%. At one point the organization used the drop in women employees as a justification for sexual discrimination, allegedly refusing to provide leather jackets to their female employees because the low numbers meant they would not receive a bulk discount. It was this incident that caused HR to call her in for a “difficult conversation” in which she claimed the representative threatened to fire her for reporting things to HR.

Uber Responds to Whistleblower Blog

Fowler’s blog post went viral, forcing Uber to respond to her allegations of sexual assault. They hired the law firms of Perkins Coie and Covington & Burling to do a probe into the systemic sexism claims. Former Attorney General Eric Holder and Tammy Albarran took a close look at the company’s culture and policies.

In the midst of the probe, another Uber employee came forward, saying he was fired for standing up for female coworkers facing sex-based discrimination and harassment. He alleged that he raised concerns with HR, and was fired soon thereafter.

The probe resulted in Uber firing over 20 employees on June 6, 2017. Forty more were reprimanded or referred to counseling and training. A week later Uber released the lawyers’ recommendations after the board agreed to adopt them all. This will include:

  • Changes in senior leadership including removing CEO Travis Kalanick’s responsibilities and promoting Uber’s Head of Diversity, Bernard Coleman
  • Cultural changes eliminating policies like “Let Builders Build”, “Always Be Hustlin'”, “Meritocracy and Toe-Stepping” and “Principled Confrontation”
  • Increases board oversight of diversity and inclusion efforts
  • Developing internal controls including tracking of discrimination and harassment complaints
  • Mandatory training for managers, executives, and HR employees
  • Emphasizing diversity in inclusion in hiring and training
  • Policy changes that make sexual harassment more difficult and transfers easier
  • Addressing employee retention concerns
  • Review equal pay practices

At that time, Kalanick took a leave of absence as CEO, saying that his direct reports and leadership team would be running the company. On June 21, 2017, he formally resigned.

Susan Fowler’s story shows that a single whistleblower can sometimes bring about changes, even in the biggest tech companies. In an industry facing repeated claims of sexual discrimination, Uber’s response to an engineer’s blog post shows that protection for employees can still happen.

If you are facing sexual harassment or a culture of discrimination at work, you don’t have to hope your blog post goes viral. The skilled employment discrimination attorneys at Eisenberg & Baum, LLP, can negotiate with the company your behalf. We can help you push for change that will help you and your coworkers be able to work free of mistreatment. When negotiations fail, we can take the matter to the EEOC or court. Contact us today to schedule a free initial consultation and get your case started.

Religious Discrimination at Work: Is it Getting Worse?

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Religion has become a political talking point over the last year. But has all the press around President Donald Trump’s campaign and later travel bans affected religious minorities’ ability to do their jobs? Is religious discrimination at work getting worse?

In this blog post I will review Title VII of the federal Civil Rights Act, and how it applies to religious discrimination. I will give examples of how the Equal Employment Opportunity Commission addresses religious discrimination in hiring and workplace accommodations. And I will explain what to do if you think you are being discriminated against because of your faith.

What is Religious Discrimination?

Title VII of the federal Civil Rights Act makes it illegal to discriminate against an employee because of that person’s religion (among other traits). Religious discrimination includes treating a person differently at work because of his or her sincerely held religious beliefs. The law protects current and former employees, as well as applicants. It covers members of established religions, such as Judaism, Christianity, or Islam, as well as anyone who has sincerely held religious, ethical, or moral beliefs. It also applies to discrimination based on the religion of a person’s spouse.

State and federal religious discrimination laws protect against biased decision making in hiring, scheduling, and promotions. They also forbid religious harassment. This includes making offensive remarks about a person’s religious beliefs or practices, but only if they are serious or frequent enough to create a hostile work environment. The federal Civil Rights Act also requires employers to make reasonable accommodations for an employee’s religious beliefs unless doing so would create a burden on the employer’s business. An employer can be required to make reasonable adjustments to scheduling, dress code, or other company policies to allow employees to follow the teachings of their faith.

Examples of Religious Discrimination

Over the years, the Equal Opportunity Employment Commission has taken on a number of religious discrimination cases. In recent years, many have involved discrimination against Muslim employees because of their religious observances. Recent EEOC cases include claims that employers:

  • Failed to accommodate Muslim prayer practices, particularly during Ramadan
  • Refused to hire Muslim women who wore a hijab or khimar (head scarves)
  • Fired Muslim truck drivers who refused to transport alcohol
  • Created a hostile work environment by labeling Muslim employees “terrorists” and “habeebies” and saying they “blow things up”
  • Refused to accommodate Islamic and Sikh employees by allowing them to wear beards at work
  • Fired employees who sought to observe their religion while at work
  • Retaliated against employees who sought religious accommodation

What is Reasonable Religious Accommodation?

Religious employees are permitted to request reasonable accommodations for the practice of their faith. But if those accommodations can be denied if they would negatively affect the employer’s business. History has shown this impact can be very small and still be enough to qualify as undue hardship. If the accommodation reduces an employee’s efficiency, infringes on other employees’ rights or benefits, impairs workplace safety, or shifts undesirable work to other employees, it could be considered unreasonable.

Employers have also been successful in claiming that a person’s religious clothing or appearance (such as a Sikh’s beard) interfere with the company’s brand or public image. However, the Equal Employment Opportunity Commission v Abercrombie & Fitch Stores, Inc., the United States Supreme Court held that the company’s interest in its “look policy” wasn’t strong enough to outweigh a teenage Muslim employee’s right to wear a religious head covering.

Are Presidential Policies Affecting Religious Discrimination?

Donald Trump’s presidential campaign included language that many saw as anti-Muslim. Now that he is President, his executive orders banning travel from predominantly Muslim countries are tied up in court based on the fact that they are based on illegal religious discrimination. This as led some to wonder whether his rhetoric could be making religious discrimination at work worse.

The EEOC has reported that workplace discrimination was already on the rise in the decades leading up to Donald Trump’s presidency. In 2013, it reported that complaints of religious discrimination at work had doubled, from 1,709 in 1997, to 3,721 in 2013. In 2011 there were over 4,000 religious discrimination claims. Internationally, universities in the United Kingdom have been reporting a significant increase in hate speech against Muslim and Jewish students. At least one study, released in 2014, suggests that simply including any religion on a résumé reduces the chance an employee will be called back.

Policy changes made by Donald Trump may also create hurdles for employers seeking to hire members of certain religious faiths, particularly Muslims. If the U.S. Supreme Court decides to fully reinstate the travel ban it could make it harder for employees of that faith to travel for work. His policies on immigration could also cause employers to believe hiring employees who openly practice a minority religion often associated with immigrants could invite a raid on their premises and disrupt their business.

Whether there is an objective increase in the number of religious discrimination claims as the result of President Trump’s words or policies remains to be seen. Religious discrimination caused by a national politician, or the biases of an individual employer, is still illegal under federal and state law. If you have been denied religious accommodation or believe you were passed over or let go because of your religious beliefs, contact Eisenberg & Baum, LLP, today to talk to an employment discrimination attorney. We can help you identify your options, advocate for your rights, and get relief from religious discrimination or harassment at work.

Can a Man Sexually Harass Another Man?

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When they think of sexual harassment, many people envision a male boss putting pressure on a female employee to have sex with him. But that’s not always the case. The stereotype can make it hard for a man to come forward when he finds himself facing inappropriate conduct. He may even wonder, “Can a man sexually harass another man?”

In this blog post, I will discuss what same-gender sexual harassment can look like. I will review EEOC v Discovering Hidden Hawaii Tours, Inc., in which a man is alleged to have harassed several of his male employees. I will also explain what men can do if they are facing sexual harassment at work.

Same-Gender Sexual Harassment Is Illegal Discrimination

There are laws against gender discrimination at every level of our legal system, from local ordinances to federal laws. They prevent hiring practices and decisions based on a person’s sex or gender. At the federal level, Title VII of the 1964 Civil Rights Act says:

“It shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s … sex… .”

This includes sexual harassment. The United States Supreme Court first determined that sexual harassment was a form of illegal discrimination in 1986 in a case called Meritor Savings Bank v. Vinson. In that case, as in many that followed it, a female employee was coerced by her male boss into performing sexual acts to keep her job.

But sexual harassment applies in same-gender situations too. In 1997, the Supreme Court decided Oncale v. Sundowner Offshore Services. There a male offshore oil worker was sexually harassed by several male co-workers who verbally abused him and performed physical sexual acts with him. The court noted that Title VII protects men and women from discrimination based on their sex. That includes sexual harassment no matter what the genders of the parties happen to be.

EEOC v Discovering Hidden Hawaii Tours, Inc.

Situations like the one in Oncale continue to happen today. Earlier this year, the Equal Employment Opportunity Commission (EEOC), the agency in charge of enforcing Title VII of the Civil Rights Act, sued a tourism company for very similar conduct. The EEOC’s complaint says that the president of Discovering Hidden Hawaii Tours developed a pattern of recruiting young men to work for his companies and then sexually harassing them. A decade of sexual harassment of several different employees included:

  • Inviting male employees to join sex parties with him
  • Showing them pornographic photos and videos
  • Demanding that they expose themselves to be considered for employment
  • Making employment opportunities depend on engaging in sexual acts
  • Engaging in unwanted, non-consensual sex acts against male employees

When employees complained about the president’s behavior to their superiors, the company did nothing. This forced some employees to quit. Others faced retaliation from the president for their complaints.

The EEOC took up the case, and has sued the company on behalf of a class of its employees. The lawsuit seeks back pay, compensatory, and punitive damages for the victims, as well as changes to the workplace called injunctive relief. In a statement, Anna Park, regional attorney for the EEOC’s Los Angeles District (which covers Hawaii), said:

“All employees, regardless of gender, have the right to work in a harassment-free workplace and should never be forced to endure such abuse. . . . I applaud these young men for coming forward to tell their stories.”

Sexual Harassment Includes More Than Physical Acts

If the EEOC’s allegations are true, the employees of Discovering Hidden Hawaii Tours, Inc., faced severe sexual harassment. But just because a man isn’t forced to expose himself or engage in sex acts doesn’t mean he doesn’t have a case. The federal definition of sexual harassment is broader than that. It includes patterns of behavior and comments based on or about a person’s gender, as long as they are severe or pervasive enough that a reasonable person would feel they were in a hostile working environment. For men this could include:

  • Being told they are not “manly” enough or do not fit a masculine stereotype
  • Having pornography displayed in their workplace
  • Being called a woman or feminine names
  • Being held to stereotypical expectations of male behavior
  • Inappropriate physical touching

The more often the conduct or statements happen, the more offensive they are, and the more people become involved, the more likely the EEOC and the federal courts will find that a man has been a victim of sexual harassment.

Men Can Stand Up to Sexual Harassment At Work

Men can find themselves the victim of sexual harassment from bosses, managers, supervisors, co-workers, and even customers. When abusive situations occur there are several steps men can take to stand up against sexual harassment at work:

  • File a written complaint with a supervisor or HR department
  • File a grievance with a union representative
  • File a claim with the EEOC or your state civil rights office
  • File a lawsuit in state or federal court.

An experienced employment discrimination attorney can meet with you early in the process and make sure everything is done right to protect your claim. At Eisenberg & Baum, LLP, our sexual harassment attorneys will help you collect your documents, file the necessary claims, and represent you in court. Contact us to schedule a consultation. We will help you put an end to sexual harassment at work, so you can get back to your job.

Black Haitian Dishwashers Called “Slaves” EEOC Lawsuit Says

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The Equal Employment Opportunity Commission (EEOC) recently filed a lawsuit in Florida claiming a local hotel discriminated against Black Haitian dishwashers, including calling them “slaves”. The case raises the questions of whether discrimination can happen between minorities, and how staffing agencies can mask deeper problems.

In this post, I will discuss EEOC vs SBEEG Holdings, LLC et al. I will review the racial discrimination allegations and explain how Title VII applies between different classes of minorities. I will also explore how the EEOC is pursuing staffing agencies who hide discrimination through outsourcing labor.

Hotel Discriminates Against Black Haitian Dishwashers

A number of Black Haitian dishwashers filed a complaint with the Equal Employment Opportunity Commission (EEOC) against the hotel that employed them. They claimed that they had been discriminated against based on their race, color, and national origin when the SLS Hotel South Beach brought on a staffing company to do their work as stewards and dishwashers. The staffing company’s employees were primarily light-skinned Hispanic workers. Some of the terminated employees saw their replacements doing their work, even as they were being escorted from the building by security.

The ensuing EEOC investigation revealed that at the time of their replacement, the Black Haitian employees were treated differently than their Hispanic counterparts. Hotel management prohibited the use of Creole, even between employees, but permitted its Hispanic employees to speak Spanish. It also assigned difficult and physically demanding tasks, such as carrying heavy items, to Haitian staff. In addition, managers and chefs allegedly called the Black Haitian dishwashers disparaging names, including “f—–g Haitians” and “slaves”.

The EEOC addressed the dishwashers’ complaints by submitting the claim to conciliation efforts. When informal negotiations failed in April 2017, the EEOC filed a lawsuit in the United States District Court for the Southern District of Florida. In its Complaint, the EEOC accused SLS Hotel South Beach and other related legal entities of violating Title VII of the Civil Rights Act of 1964.

Racial Discrimination Between Minorities

Title VII prohibits discrimination based on a number of different personal traits, including race, color, and national origin. Employers are not allowed to use these protected traits when making hiring and firing decisions or to create a hostile working environment. While many EEOC complaints allege discrimination by a member of the majority against members of a minority, the law is not so narrow. Any discrimination based on race is illegal, even if it happens by members of the same ethnic community or competing minority groups.

In the case of SLS Hotel South Beach, the allegations were that the hotel pit two minority groups against one another. The management was said to have replaced Black Haitian employees with light-skinned Hispanic workers. This created an apparent hierarchy among racial and ethnic minorities. It also appeared that the management treated each minority group by its own rules. If these allegations are true, it would amount to racial discrimination, favoring the Hispanic workers over their Black Haitian counterparts.

Using Staffing Companies to Sidestep Title VII

EEOC vs SBEEG Holdings, LLC et al. poses a second legal question which appears to have gotten the EEOC’s attention. The Black Haitian dishwasher plaintiffs were removed as a group when the SLS Hotel decided to outsource their jobs to a staffing company that hired primarily light-skinned Hispanic workers. This adds a layer of complexity to the case because the hotel may have access to defenses that have more to do with the legal structure of companies than the treatment of employees. For example, it may argue that it did not control the race of the workers sent by the staffing company.

But the EEOC says that is no excuse. Michael Farrell, District Director for the EEOC’s Miami District Office, said in a statement:

“In serving this community, the Miami District Office is mindful of the diverse workforce in all facets of the service, hospitality and tourism sectors and will protect workers facing discrimination in these important Florida industries.”

Discrimination in complex employment relationships, including staffing agencies, independent contractors, and on-demand workers is one of the EEOC’s top priorities, as described in the Strategic Enforcement Plan for 2017-2021. Regional Attorney Robert E. Weisberg of the Miami District Office said:

“Employers should not be able to avoid liability by using a staffing agency to discriminate when it cannot lawfully do so on its own. . . . Consistent with the agency’s strategic enforcement goals, the EEOC will be vigilant in ensuring employment discrimination is not hidden behind increasingly complex business relationships, including the outsourcing concept.”

Whether SLS Hotel South Beach and its co-defendants will be found to have violated Title VII through the use of a staffing company remains to be seen. But the EEOC believes that by firing the Black Haitian dishwashers without giving them a chance to apply to the staffing agency, the hotel committed illegal racial discrimination against its staff.

At Eisenberg & Baum, LLP, our employment discrimination attorneys stay up to date with current events in racial discrimination. We can help you understand your rights at work, and what your remedies might be if you have faced employment discrimination based on your race, color, or where your family comes from. Contact Eisenberg & Baum, LLP, today for a free consultation.

Fox News Corporate Culture Raised Sexual Harassment Problems

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TV heavyweight Fox News has been plagued with public sexual harassment allegations for nearly a year. But the allegations suggest the corporate culture that created the problem ran even deeper.

In this blog post, I will review the sexual harassment allegations against Fox News starting in 2016. I will discuss how the corporate culture at the company affected gender discrimination claims. I will also explain how changing the climate at your company may open the door to correcting sexual harassment at work.

Fox News Faces Sexual Harassment Claims

Since July 2016, 21st Century Fox, and its news outlet Fox News, have been making a lot of news of their own, and not in a good way. Allegations of sexual harassment, sexism, and misconduct have surfaced one after another for nearly a year. Here’s a summary of the events to date:

  • July 6, 2016: News anchor Gretchen Carlson filed a sexual harassment lawsuit against Fox News chairman and CEO Roger Ailes.
  • July 9, 2016: Republican National Committee field adviser Kellie Boyle, model Marsha Callahan, and four anonymous women accused Ailes of harassing them for decades.
  • July 11, 2016: External law firm Paul, Weiss, Rifkind, Wharton & Garrison investigated the allegations against Ailes for Fox.
  • July 19, 2016: Star reporter Megyn Kelly raised sexual harassment allegations against Ailes.
  • July 21, 2016: Roger Ailes resigned from Fox News without admitting responsibility. He received a $40 million severance package.
  • July 29, 2016: Booker Laurie Luhn said she was “psychologically tortured” by Ailes for over 20 years.
  • August 22, 2016: Co-host Andrea Tantaros filed a separate lawsuit against Fox News for executives sexual harassment and retaliation.
  • September 6, 2016: Fox News settled with Gretchen Carlson for $20 million and a public apology.
  • March 8, 2017: Fox News settled sexual harassment claims by Tamara Holder for $2.5 million.
  • April 1, 2017: The Times reported that reporter Bill O’Reilly and Fox News paid a total of $13 million to 5 women working or appearing on his show in out-of-court settlement of harassment claims.
  • April 3, 2017: Contributor Julie Roginsky filed another sexual harassment lawsuit against Ailes and retaliation claims against Fox News Co-President Bill Shine.
  • April 4, 2017: Fox News guest Wendy Walsh held a press conference to raise sexual harassment claims against O’Reilly, which were reported to the network’s anonymous hotline.
  • April 9, 2017: Paul, Weiss announced it would investigate claims against O’Reilly.
  • April 19, 2017: Fox News announced O’Reilly would leave the network.
  • April 21, 2017: Fox News guest Debbie Schlussel raised allegations of improper conduct by Sean Hannity.
  • April 25, 2017: 8 Fox News employees raised racial discrimination claims saying Fox News had “Plantation-style management”.
  • May 1, 2017: Co-President Bill Shine resigned from Fox News.

Fox News Denies Allegations, Despite Repeated Retaliation Claims

Despite the number of complaints and lawsuits Fox News is facing, it continues to deny nearly every allegation of sexual harassment or workplace discrimination. In its settlement with Gretchen Carlson, Fox News publicly apologized “for the fact that Gretchen was not treated with the respect and dignity that she and all our colleagues deserve.” However, the company has by and large rejected claims that it was not supportive of employees who lodged complaints. 21st Century Fox believes it has done enough to change a poor corporate culture:

“The company’s management has taken prompt and decisive action to address reports of sexual harassment and workplace issues at Fox News. . . . These actions have led to an overhaul of Fox News Channel’s leadership, management and reporting structure, and have driven fundamental changes to the channel’s on-air talent and primetime programming line-up.”

Corporate Culture Discouraged Report of Sexual Harassment

Lilia Cortina, a professor of psychology and women’s studies at the University of Michigan, told NPR that the problem is that corporations, including Fox News, can have corporate cultures that discourage reports of sexual harassment. Questions of corporate culture include:

  • Whether reports are taken seriously
  • Whether there are consequences to a harasser’s actions
  • Whether those who do report face retaliation against.

Cortina encouraged companies use flexible reporting options including both formal and informal channels. She said the reporting systems should encourage disclosure of all offensive behavior, even if it isn’t serious enough to be illegal. They should assure employees they are safe when they do so and will not be risking retaliation if their report is less severe, or against a company superior.

What You Can Do If You Fear Retaliation

If employees don’t feel safe reporting sexual harassment or workplace discrimination, it is generally because they fear retaliation from their employer. They worry that their superiors will make their work-lives miserable, or will fire them outright. Retaliation for discrimination claims is illegal, but it is still a reality. If you fear retaliation, there are some things you can do before filing your report to protect yourself later on:

  • Document everything using a log
  • Download, print, and preserve your employment reviews and evaluations
  • Recruit witnesses or coworkers who will support your claim
  • Prepare a written complaint (and keep a copy)
  • Talk to an experienced employment discrimination attorney

By bringing in an employment discrimination attorney before you start your complaint process, you can explore your options, make a plan, and prepare for the worst. Having an employment lawyer on your side can help insulate you against retaliation and improve your chances in resolving your sexual harassment claim quickly in a way that protects your rights.

At Eisenberg & Baum, LLP, we have sexual harassment attorneys ready to help you fight back against the signs of gender discrimination. We will meet with you and develop a strategy to get you back to a comfortable working environment and protect against retaliation. You don’t have to face it alone. Contact us today to schedule a free consultation.

Police Officer’s “Gayness” Prevented Promotion, Lawsuit Says

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Police departments across the country have had problems recruiting a diverse and inclusive workforce. But they don’t do themselves any favors when they allow sexual stereotypes to affect hiring and promotions decisions. One Missouri police officer’s “gayness” prevented promotion and prompted a gender discrimination lawsuit.

In this blog, I will review Wildhaber v. St Louis County, MO, filed in Missouri state court. I will explain how federal Title VII civil rights law applies to sexual orientation and retaliation, and explain how an employment discrimination attorney can help you get the compensation you need.

Police Officer’s “Gayness” Influences Promotion Decisions

According to a lawsuit filed in Missouri state court, St. Louis County police officer Keith Wildhaber was passed over for promotion for years because of his perceived “gayness.” The complaint, filed January 10, 2017 alleges that Wildhaber, who had an exception work history, was denied multiple promotion opportunities based on his managers’ expectations around sexual stereotypes.

The following is based on the allegations in the complaint:

A 4-year army veteran, Wildhaber has worked as a police officer for the St. Louis Police Department since he graduated police academy in 1997. In 1998, he received a Medal of Valor for saving a man trapped in a burning car. He was promoted to Sergeant in 2011, and assigned to the desirable location of Affton Precinct. In 2014, Wildhaber took the promotions test for a lieutenant position. Of 26 applicants, he scored 3rd.

But despite his high rankings, Wildhaber was placed toward the bottom of the promotion list. In February 2015, rather than promoting him to fill a vacant position, the managers opened applications again. Wildhaber tested again, and again placed third. A year later, Wildhaber had been passed over for the lieutenant position again.

In the midst of this process, Wildhaber spoke with one of the St. Louis County Board of Police Commissioners, who allegedly told him the command staff had “a problem with your sexuality.” The Commissioner said:

“If you ever want to see a white shirt (i.e., get a promotion), you should tone down your gayness.”

When the police officer filed complaints about this statement, and the management’s discriminatory hiring practices, he faced retaliation. According to the lawsuit, he was transferred from a second-shift position in Affton to a midnight shift 20 miles away in Jennings.

Title VII and Sexual Orientation Discrimination

Title VII of the federal Civil Rights Act prohibits employment discrimination based on:

  • Race
  • Color
  • Religion
  • National origin
  • Sex

The law does not explicitly protect against discrimination based on sexual orientation or gender expression. However, in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the U.S. Supreme Court ruled that discrimination based on a person’s failure to conform to an employer’s sexual stereotypes was illegal under Title VII. A decade later, these protections were extended to cover sexual orientation in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998).

Under the Obama Administration, beginning in 2012, the Equal Employment Opportunity Commission began interpreting Title VII to include protection against discrimination based on sexual orientation and gender identity. However, with the recent changes in administration, any future EEOC efforts to protect gay, lesbian, bisexual, and transgender employees are highly questionable.

Retaliation and Title VII

Federal civil rights laws, including Title VII, explicitly prohibit retaliation by employers against employees who raise civil rights concerns. This includes lodging internal civil rights complaints, filing EEOC charges, acting as a witness, or pursuing the employee’s rights in court. It doesn’t matter if the case is successful. Even actions taken to prevent perceived civil rights violations are protected under the statutes.

Retaliation is a broad term, including any adverse employment action. In Wildhaber’s case, this took the form of reassignment to a distant precinct and the midnight shift. In other cases it could include firing, demotion, negative performance reviews, limited job assignments, or any other efforts by employers to discourage a person from filing their complaints.

EEOC Changes Don’t Change Title VII

The Missouri Commission on Human Rights won’t be helping Wildhaber. The organization issued a “Notice of Right to Sue” on January 10, 2017. But that doesn’t mean his case is over. In fact, it has just begun. His employment discrimination attorney has filed a complaint in state court based on Title VII and similar state civil rights laws. The private lawsuit is based on the same legal theory: that employment decisions made based on a police officer’s “gayness” are illegal gender discrimination based on sexual stereotypes.

The cases against sexual orientation discrimination survive any changes in administrative enforcement by the EEOC or a presidential administration. Private employment discrimination attorneys can use these cases to get LGBT employees protection and damages when they face discrimination at work. In Waldhaber’s case, his lawyers are requesting:

  • Back pay (wages lost because he was not promoted)
  • Front pay (wages that continue to be lost unless he is promoted)
  • Money compensation for emotional distress and humiliation
  • Promotion within the department
  • Punitive damages (designed to keep his employer from doing the same thing in the future)
  • Court costs, attorney fees, and interest.

Similar money damages and “injunctive” relief may be available in a wide variety of sexual orientation discrimination claims. Right now, courts disagree on whether Title VII applies to LGBT claims. However, in many jurisdictions, these cases can be filed as a form of gender discrimination. That will remain true, regardless of EEOC enforcement policies, unless and until the Supreme Court says otherwise.

LGBT employees face tough employment discrimination, especially in industries that rely on sexual stereotypes. If you believe you have been passed over for promotion because of your “gayness”, the employment discrimination attorneys at Eisenberg & Baum, LLP, can help. We will review your case and help you understand your chances in the EEOC and in your court. Contact us to arrange a consultation to get help today.