EEOC vs. Hiring a Lawyer: When Do You Need an Attorney for Job Discrimination?

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Do you need an attorney for job discrimination or will the EEOC do the work for you? Find out why you should talk to a lawyer first, and when you can skip the EEOC altogether.

In this blog post, I will discuss the differences between the EEOC process and what an attorney for job discrimination can do for you. I will explain when and how you can opt out of the EEOC administrative process, and why you may want to go to a lawyer first.

Most Job Discrimination Claims Must Go To EEOC First

If you are considering hiring an attorney for job discrimination, you should know that many of the civil rights laws require you to go to the EEOC first, before you file a federal lawsuit. In most cases, you will have to file an administrative complaint with the EEOC, and go through the informal settlement process before having the matter heard by an administrative law judge. The EEOC investigators may say there is no need to talk to an attorney for job discrimination before starting this process. But that could cause you to miss out on some important options for your employment discrimination or harassment claims.

Why Talk To An Attorney for Job Discrimination First

You don’t need to hire a lawyer before filing an EEOC complaint. But you may want to at least have a consultation. Depending on where you live and what happened at work you may be entitled to more than the EEOC will give you if you go it alone. An attorney for job discrimination may well advise you to go through the EEOC process. But by talking to a lawyer ahead of time, you can get guidance on what to report, and how to word it in a way that will make your complaint stronger.

In addition to the federal laws enforced by the EEOC, many states have their own civil rights laws that may protect more people in more circumstances, or allow for more damages than are available through the EEOC. In those cases, you and your employment discrimination attorney can discuss whether to file in the state system, the federal system, or both, to make the most of your circumstances.

When You Can Go Straight to Court

Two laws enforced by the EEOC do not require you to exhaust your administrative remedies before heading to court: the Age Discrimination in Employment Act (ADEA) and the Equal Pay Act. These two laws allow you and your discrimination attorney to go directly to the federal court to file your claim.

But even in Equal Pay cases, you may still want to go through the EEOC. If what happened to you qualifies as gender discrimination under Title VII, as well as the Equal Pay Act, there may be remedies that will become available only after completing the EEOC’s process. Deciding whether to involve the EEOC will depend on your circumstances and what you hope to accomplish by filing your complaint.

When You Can Opt Out of EEOC Involvement

Just because your case starts with an EEOC complaint doesn’t mean it has to end there. You have the option to quit the administrative process and file your own private lawsuit if:

  • The agency has not responded with a decision after 180 days and no appeal has been filed
  • The agency issued a decision and no appeal has been filed (you must file your lawsuit within 90 days of the decision)
  • The EEOC does not respond to your appeal with a decision within 180 days,
  • You disagree with the EEOC’s decision on your appeal (you must file your lawsuit within 90 days of the decision)

The EEOC may also opt not to pursue your complaint and issue a “Notice of Right to Sue.” If that happens you need to talk to an attorney for job discrimination right away to make sure you file your federal lawsuit within the legal time limits.

EEOC vs. Hiring a Lawyer in Federal Court

In some cases, informal settlement and formal administrative processes fail to reach a satisfactory resolution. It is then up to the EEOC to decide whether it will file a lawsuit on your behalf in federal court. However, it is also up to you whether you accept the agency’s offer of representation. You may instead choose to hire a lawyer to work for you privately. Doing so gives you more control over your case, and any possible settlements. Your job discrimination attorney may also be able to negotiate with your employer to resolve your case quietly, without going to court at all.

It is generally a good idea to talk to an attorney for job discrimination before filing a claim with the EEOC. Whether your goal is to resolve the case quietly, make the most of your EEOC complaint, or head directly to federal court, the employment discrimination attorneys at Eisenberg & Baum, LLP, can help you develop a strategy to meet your needs. Don’t wait until the EEOC turns you down to talk to a lawyer. Contact Eisenberg & Baum, LLP, today for a free consultation.

How to Settle a Sexual Harassment Claim Out of Court

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Lawsuits are important. They publicly expose illegal employment behavior and provide important remedies to injured workers. But not every claim needs to go to trial. Find out how a lawyer can help you settle a sexual harassment claim out of court, and why you might want to.

In this post, I will discuss the out-of-court settlements entered by Fox News regarding TV personality Bill O’Reilly. I will explain why some employees say yes to out-of-court settlements, and how a lawyer can help protect your rights during negotiations.

Fox News Settles Sexual Harassment Claims

2016 posed big employment law challenges for Fox News. The company faced sexual harassment lawsuits by reporters Gretchen Carlson and Andrea Tantaros, who claimed former chairman Roger Ailes and others in upper management had subjected them to on-going gender discrimination and sexual harassment. Now, in 2017, the New York Times has reported that there was even more going on behind the scenes.

The newspaper obtained a letter that complained of sexual harassment claims by employee Juliet Huddy against TV host Bill O’Reilly. According to the letter, O’Reilly tried to have a sexual relationship with Huddy in 2011, at a time when he had significant influence over the direction of her career. Specifically, the letter said O’Reilly invited her to his home, tried to kiss her, took her out to dinner and the theater, and then appeared at the door to meet her in his boxer shorts. When Huddy refused his advances, the letter says O’Reilly tried to interfere with her professional advancement. Fox executive Jack Abernethy was also said to have retaliated against her professionally after she declined O’Reilly’s personal relationship.

Fox News and Mr. O’Reilly’s attorney have denied the allegations, but that did not stop them from entering into a high six figure settlement with Ms. Huddy. In exchange for the money, Huddy agreed not to sue the company for her sexual harassment claims.

The Benefits of a Sexual Harassment Settlement

If you have been the victim of ongoing sexual harassment, it can be tempting to insist on your day in court. But depending on your long-term employment goals, a settlement may be better for you, and your career.

Out-Of-Court Settlements Mend Fences in the Workplace

If your goal is to stay with your company, you will be working day-to-day with the potential defendants in any eventual lawsuit. While retaliation is illegal, you can’t litigate against hard feelings. If you want to stay on good terms with your employers and coworkers, an internal settlement may be able to get you the relief you need, without making you and your boss enemies.

Settlements Get Relief Faster

Lawsuits and Equal Employment Opportunity Commission (EEOC) investigations take time. If you go through formal channels, it can take months, or sometimes years, before you receive the relief you need. But if you engage your employer in informal negotiations instead, you could end up back to work faster. Depending on your claims, it may be possible to avoid any interruption to your income, work schedule, or employee-provided insurance.

Settlements Keep Your Affairs Private

Privacy is perhaps the biggest attraction of a sexual harassment settlement, for both sides. Employers often want to avoid the negative publicity of employment discrimination claims filed in court. Employees may not want their personal affairs to become part of public court record. The New York Times article proves that even informal settlements can sometimes go public. But many settlement agreements include non-disclosure provisions that protect the privacy of everyone involved.

How a Sexual Harassment Lawyer Can Help

It may be tempting to try to handle your sexual harassment complaints yourself. After you file an internal H.R. complaint or a grievance with your union, it may seem like there is nothing a lawyer can do. But any time an employer starts to talk about a “waiver” or “satisfaction of claims” it is essential that you get an experienced sexual harassment attorney on your side.

Employment discrimination laws give you access to a wide variety of remedies, from back pay and other financial compensation, to equitable remedies. Your employer could be required to discipline, or even fire, your harasser, and make changes to policy at the office, among other things. But if you never speak to a lawyer, you could very easily overlook some of your rights. A sexual harassment lawyer can make sure you get the remedies that will prevent the behavior from happening again, along with a fair financial compensation.

Many employers will try to sweep a wide variety of claims together when entering a settlement. Depending on the language of the settlement agreement, you could accidentally be forgiving the company for far more than you intended, even future behavior. An employment discrimination attorney can carefully review any settlement language to make sure you aren’t giving up more than you intended.

At Eisenberg & Baum, LLP, we know how to protect all of your rights at work, along with your privacy. Our experienced sexual harassment attorneys will meet with you to discuss your priorities and create a strategy to get you the relief you need. Contact us today to schedule a free initial consultation and get your case started.

Kansas Custodians Say They Were Fired After Reporting Sexual Harassment

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If you are facing a sexually hostile work environment, you may be hesitant to report it. You may be afraid you will be fired after reporting sexual harassment to your employer or the EEOC. That’s what happened to several Kansas school district custodians who were facing harassment at work.

In this blog, I will review the case of Reyes et al. v. Hugoton Public Schools. I will explain what sexual harassment charges look like, and what you can do if you have been retaliated against after standing up for your rights at work.

Kansas Custodians Face Sexual Harassment at Work

Elda Pena and Francisca Reyes were custodians for a Kansas high school within the Hugoton Public School District. Pena had been working there since 2010; Reyes since 2012. In a complaint filed with the United States District Court for the District of Kansas, they said that their mutual supervisor Rogelio Hernandez had sexually harassed them, and that they were fired after reporting that sexual harassment.

According to the complaint, Hernandez groped the women, demeaned them, and invaded their privacy. He would call Reyes a Spanish word for a woman who leaves a man with “blue balls.” He called Pena a prostitute and said that she had to have sex with him if he asked, because he was her boss. He would stand uncomfortably close to them and would regularly walk into the women’s restroom without knocking.

In August 2013, Reyes, Pena, and five other women met with the district superintendent, Mark Crawford, to register their complaints. Crawford dismissed them, telling them through a translator that Hernandez was a good man. He said to forget about it and not take any action against their boss. In responding that way, Crawford ignored the fact that Hernandez had previously been suspended for two days based on a 2012 sexual harassment claim.

When the women persisted, Crawford eventually reassigned Hernandez to another shift and put him on 120 days of probation. He also reassigned Reyes and Pena. However, Hernandez continued as Director of Facilities. But in doing so, Crawford assigned Pena to a supervisor against whom Pena had previously lodged a separate complaint, saying that he groped and sexually harassed her when they worked together in the past.

Then, on October 7, 2013, Crawford fired Pena outright and sent Reyes a letter, warning her that “talking negatively about your direct supervisor with other staff members and the community in general is completely unacceptable.” He fired her a week later.

Sexual Harassment At Work Is Illegal

The kind of treatment Reyes and Pena report is illegal under Title VII of the federal Civil Rights Act, as well as state anti-discrimination laws. Federal law says illegal sexual harassment can include:

  • Unwanted sexual advances
  • Requests for sexual favors
  • Physical conduct of a sexual nature
  • Insults or demeaning statements based on a person sex

The conduct may be by a person’s supervisor (like Hernandez), co-worker, or even a client or customer. When this behavior becomes frequent enough or severe enough to create a hostile work environment, or results in an adverse employment decision, it becomes illegal sexual harassment.

In determining the strength of a sexual harassment claim, employment discrimination lawyers and federal judges will look at how an employer responded to formal or informal complaints. If the Kansas custodians’ claims are proven, the superintendent’s disregard for their concerns could work against the district at court.

Fired After Reporting Sexual Harassment? That’s Illegal Too

Crawford’s initial response to the women’s sexual harassment claims was bad enough, but when he fired them both within a week, he likely committed illegal retaliation. Every civil rights statute that the Equal Employment Opportunity Commission (EEOC) enforces, including the federal Civil Rights Act, includes protection against retaliation. If an employee is discriminated against because she complains about sexual harassment in her workplace, that in itself may be grounds for a lawsuit.

The sexual harassment attorneys for the Kansas custodians are seeking back pay, front pay based on their lack of employment, and punitive damages against the school district. Retaliation claims can also result in additional damages for:

  • Expenses related to finding replacement employment
  • Costs of mental, emotional, or other treatment needed as a result of the harassment
  • Other out-of-pocket expenses
  • Pain and suffering for emotional harm, mental anguish, or loss of enjoyment of life.

Retaliation protections apply to more than just the victim of sexual harassment. Anyone fired after reporting sexual harassment, acting as a witness, or participating in the investigation in any way may be entitled to civil rights protections.

If you have been fired after reporting sexual harassment, you need to talk to an experienced employment discrimination attorney to find out what protections are available to you. At Eisenberg & Baum, LLP, our attorneys are trained to help you fight back against retaliation and sexual harassment. Contact us today to schedule a free consultation, and find out whether you have a case.

Bloomberg BNA Talks Deaf Discrimination With Eisenberg & Baum, LLP

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Eisenberg & Baum Law Center for Deaf and Hard of Hearing was recently featured in Bloomberg BNA’s “Health Law Reporter.” Partners Eric M. Baum and Andrew Rozynski were interviewed about the work the firm does representing the plaintiffs in deaf discrimination cases.

“The ADA for over 25 years has required places of public accommodation—including hospitals and healthcare providers—to ensure they have a means of effectively communicating with deaf and hard-of-hearing people, but many facilities don’t understand what that entails, partners Eric M. Baum and Andrew Rozynski told Bloomberg BNA.

The stakes can be high for providers because the costs of litigating the claims these individuals bring can be a lot higher than the costs of providing the interpretation services that best meet their needs, the attorneys said.”

Rozynski and Sheryl Eisenberg-Michalowski, the firm’s deaf liaison/advocate, told Bloomberg how hospitals and healthcare providers in particular often fall short of their legal obligations to patients. They also provided practical solutions to balance the cost of live interpreters with the technical challenges of virtual options. You can read the whole report here.

Top 10 Industries with Largest Gender Pay Gaps

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Do you ever wonder how much you make, compared to others in your industry? Men and women may be surprised to find out the top 10 industries that continue to struggle with a large gender pay gap.

In this blog, I will review a recent PayScale study analyzing the gender pay gap across different jobs, industries, and geographies. I will explain some factors that contribute to the uncontrolled pay gap, and in what cases a gender discrimination attorney can help close the gap.

The Gender Pay Gap Persisted in 2016

When the data-management company PayScale updated its data to include information from 1.8 million employees between October 2014 and October 2016, one thing was clear: the gender pay gap was here to stay. Across the country, the overall gender wage gap was 24% – only two points lower than last year’s level. That means for ever dollar a man earns, a woman earns 76 cents. This is also higher than the 20% gender wage gap for 2015, reported by the Institute for Women’s Policy Research.

The Top 10 Industries With Unequal Pay

The data set has been evaluated by a number of different metrics, including geography and education level. When it comes to job category, the PayScale shows the following industries were the worst (based on uncontrolled data):

  1. Finance and Insurance (29.1%)
  2. Public Administration (25.6%)
  3. Professional, Scientific, and Technical Services (25.2%)
  4. Health Care and Social Assistance (23.3%)
  5. Mining, Quarrying, and Oil and Gas Extraction (22.8%)
  6. Information (22.1%)
  7. Retail Trade (20.0%)
  8. Management of Companies and Enterprises (19.4%)
  9. Manufacturing (18.8%)
  10. Utilities (18.3%)

The data uses the same category definitions as the U.S. census. So if you want to know where your job falls, you can find it there.

The fact that healthcare and social assistance ranks so highly shows that a gender payment gap can exist even in female-dominated sectors. Even though women held 80% of the jobs in that industry, they are still paid just over 77 cents on the dollar, compared to their male counterparts.

The Glass Ceiling Can Mask the Gender Pay Gap

The PayScale data can be read raw (also called uncontrolled) or controlled by job title, job level, or years of experience. When controlled in this way, women’s wages are 98% of men’s in the same positions. But by doing so, researchers can inadvertently hide the true harm of unequal pay. Jeff Kauflin, a writer for Forbes, explains:

In this post we focused on PayScale’s raw, uncontrolled data, because controlling for a factor like management responsibilities ignores the fact that women can be blocked from promotions by gender discrimination. If you statistically remove the differences in corporate rank, you’re manipulating the numbers in a way that can hide the effects of gender bias.

The PayScale report calls this the “opportunity gap.” According to their data, Men are 85% more likely than women to be promoted to VPs or C-Suite executives by the middle of their career and 171% more likely to hold these positions later in their careers. Among 60 year old employees, more than 60% of women are still working at the individual contributor level. Among men, that number is only 45%. Since these promotions almost always come with a salary increase, an uncontrolled look at the raw data is better able to demonstrate the true gender pay gap.

Unequal Pay Is Illegal

The gender pay gap may be persistent, but in many cases it is also illegal. If your employer pays you less because of your gender, or passes you over for promotion based on your sex, you may have the grounds for a legal complaint under the Equal Pay Act or Title VII of the Civil Rights Act. An employment discrimination attorney can help you determine whether you are the victim of gender discrimination and unequal pay.

At Eisenberg & Baum, LLP, we will help you review your situation and determine whether you should file a claim with the Equal Employment Opportunity Commission (EEOC), a private lawsuit in state or federal court, or pursue alternative routes to equality. No matter which strategy is best for you, we will help you fight to close the gender pay gap. Contact Eisenberg & Baum, LLP, today for a free consultation.

New Guidance on Employment Harassment Law

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How do you know what your employer is supposed to do to prevent employment harassment? Is there anything you can do to show employers what they should be doing without filing a complaint? The new EEOC proposed guidance is a good place to start.

In this post I will discuss the newly proposed Enforcement Guidance on Unlawful Harassment published by the EEOC and how it will help employees and employers prevent and respond to harassment. I will explain how employees can use this guidance to their advantage with the help of skilled employment discrimination attorneys.

The EEOC Issues Proposed Employment Harassment Guidelines

On January 10, 2017 the Equal Employment Opportunity Commission (EEOC) issued new proposed guidance on employment harassment policies. The EEOC is responsible for enforcing federal civil rights laws protecting employees from harassment based on “race, color, religion, sex, national origin, disability, age, or genetic information.” However, over time, the way harassment happens, both at work and online, has changed. That means the agency’s policies need to change too. The proposed guidelines are designed to update several outdated EEOC policies, in light of the changing workplace.

New Guidelines Respond to Increasing Harassment Claims

From 2012 to 2015, the number of private harassment claims filed with the EEOC went up dramatically. In 2015, the EEOC received 27,983 private sector harassment claims. That’s over 30% of all charges filed that year. Among federal government employees, 44% of complaints included harassment. EEOC Chair Jenny R. Yang said in a statement:

“Harassment remains a serious workplace problem that is the concern of all Americans. It is important for employers to understand the actions they can take today to prevent and address harassment in their workplaces.”

To combat this trend, the new EEOC guidance breaks down harassment claims into 3 elements:

  • Is the conduct based on a legally protected status?
  • Does the conduct create a hostile work environment (because of severity or frequency)?
  • Is the employer responsible?

To help employers avoid problems at their workplace, the guidelines recommend an effective harassment complaint system which:

  • Has the resources to respond effectively, promptly, and thoroughly to complaints;
  • Is accessible in all languages commonly used by employees;
  • Allows multiple routes to file complaints;
  • Uses neutral investigators;
  • Protects the privacy of victims, alleged harassers, witnesses, and those who report behavior;
  • Protects those accused of harassment against premature assumptions of guilt.
  • Prevents retaliation against victims, witnesses, and those who report behavior.
  • Properly informs the person complaining about how the matter is resolved.

Online Employment Harassment

As business turns increasingly online, the EEOC has had to begin responding to claims of harassment occurring outside the workplace, including on social media. This has resulted in a broad definition of what is included in employment harassment. The proposal recommends that employers train employees on civility and explains that this includes online interactions. Civility trainings should be:

  • Encouraged by senior leadership
  • Reinforced regularly
  • Attended by all levels of employees
  • Provided in all languages commonly used by employees
  • Conducted in person or using active engagement tools
  • Tailored to the needs of each workplace
  • Evaluated by participants and updated accordingly

Civility Policies May Conflict With Existing Policies

Some legal experts say that the new EEOC employment harassment guidelines could contradict recent decisions by the National Labor Relations Board. The NLRB has taken the position that uncivil language used in the course of a labor dispute is protected speech. Regulating that language has resulted in at least one wrongful discharge claim. That could result in a legal challenge to settle the dispute between agencies. At least one member of the EEOC’s Select Task Force on the Study of Harassment in the Workplace seems to welcome that challenge. Jonathan Segal, an attorney with Duane Morris in Philadelphia and New York City, has been quoted as saying:

“‘Over time I expect and hope the board will cut back on its absurd uncivil treatment toward civility and its coddling of harassers.”

EEOC Invites Public Comment

The EEOC’s proposed language issued in January isn’t necessarily the final word on the matter. The agency is inviting public comment on their proposed guidelines until February 9, 2017. Members of the public are invited to submit input (in narrative form) at www.regulations.gov or by writing to Public Input, EEOC, Executive Officer, 131 M Street, N.E., Washington, D.C. 20507.

In the meantime, the EEOC and NLRB representatives may well resolve their differences. In either case, the EEOC will likely issue a final version soon after the deadline.

Using the Employment Harassment Guidance at Work

Even in rough form, the EEOC’s guidelines provide a starting point for conversations with an employer about harassment in the workplace. If you believe your supervisor or business isn’t living up to these standards, an employment discrimination attorney may be able to help. Contact Eisenberg & Baum, LLP, to schedule a consultation and find out how you can make the proposed guidance work for you.

7th Circuit Court Upholds Sexual Orientation Discrimination Claims

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Can an employee sue her employer for sexual orientation discrimination? A recent decision by the the entire bench of the 7th Circuit said that Title VII’s prohibition against sex discrimination necessarily included sexual orientation discrimination claims.

In this blog post, I will review the Seventh Circuit en banc decision in Hively v. Ivy Tech Community College of Indiana. I will explain how the court found that Title VII should be read to prohibit sexual orientation discrimination. I will also explain how this decision pairs with another recent opinion to create a conflict that could result in consideration by the Supreme Court.

Sexual Orientation Discrimination at Ivy Tech

Kimberly Hively was an open lesbian and a part-time adjunct professor at Ivy Tech Community College’s South Bend campus. Her employers observed her kissing her then-girlfriend in the parking lot of the school. Since that time, Hively had applied for six full-time teaching positions between 2009 and 2014. But on top of being passed over all six times, in July 2014 her existing contract was not renewed. She filed a complaint with the Equal Employment Opportunity Commission, claiming that she had been the target of sexual orientation discrimination.

The EEOC issued a right-to-sue letter. So Hively sued Ivy Tech in federal district court (without a lawyer). The trial court, and later a 3-judge panel of the 7th Circuit Court of Appeals, ruled that there is no cause of action for sexual orientation discrimination based on existing case law in that court. Hively’s appellate attorneys then requested and “en banc” review, asking all the Circuit Court judges to weigh in on the issue.

Why En Banc Decisions are Different

To understand importance the en banc review, you first need an overview of the issue of “precedent”. When making legal decisions, judges at the trial court and appellate court level are required to apply existing case law. That means federal trial and appeals court judges are “bound” by U.S. Supreme Court cases and earlier decisions within their own circuit. But an en banc decision can sometimes overturn existing circuit court precedent. The 7th Circuit Court decided to hear review Hively “[i]n light of the importance of the issue, and recognizing the power of the full court to overrule earlier decisions and bring our law into conformity with the Supreme Court’s teachings”.

Sexual Orientation Discrimination As Necessarily Sex Discrimination

The 7th Circuit entertained two related arguments in favor of sexual orientation discrimination. The first asked if the plaintiff’s sex had influenced her employer’s decision. That meant asking, “holding all other things constant and changing only her sex, [would she] have been treated the same way?”

The court emphasized the importance of holding all things constant except the plaintiff’s sex. It compared Hively’s situation to a male dating a female partner and working in the same position. This was a point of contention between the majority of judges and the dissent. The dissenting judges would have compared Hively to a homosexual man in the same situation — in other words, they would have changed both partners’ sex, instead of just her own. The court found that this approach changed too much. It also obscured the issue of gender non-conformity, which is an established form of sex discrimination. The court said:

Viewed through the lens of the gender non-conformity line of cases, Hively represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): she is not heterosexual.

It found that there is no distinction between a gender nonconformity claim and one based on sexual orientation.

Any discomfort, disapproval, or job decision based on the fact that the complainant — woman or man — dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex.

Sexual Association Discrimination Compared to Interracial Marriage

The second argument in favor of Hively’s sexual orientation discrimination claim drew an analogy to the Supreme Court’s decision regarding interracial marriage in Loving v. Virginia, 388 U.S. 1 (1967). That case, and several later court of appeals opinions, held that employment decisions made because of a protected characteristic of a person’s associate is actually discrimination based on his or her own traits. While the trait in question in those cases was race, the court said the same reasoning would apply to any other form of discrimination including national origin, color, religion, or sex of the person’s associate.

Supreme Court Decisions in Favor of Same-Sex Couples

The court found support for its decision in a number of existing Supreme Court decisions in favor of homosexual individuals and couples:

  • Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), determined gender stereotyping was illegal sex discrimination.
  • Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998), determined that sex discrimination can occur regardless of the sex of the harasser or the victim.
  • Romer v. Evans, 517 U.S. 620 (1996), struck down a state constitutional amendment forbidding laws that protect “homosexual, lesbian, or bisexual” persons.
  • Lawrence v. Texas, 539 U.S. 558 (2003), struck down a law criminalizing homosexual intimacy between consenting adults.
  • United States v. Windsor, 133 S.Ct. 2675 (2013), struck down the federal Defense of Marriage Act excluding same-sex spouses based on due process and equal protection principles.
  • Obergefell v. Hodges, 135 S.Ct. 2584 (2015), protecting the right of same-sex couples to marry.

The current state of employment discrimination law creates “a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act.” The court said “[i]t would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.'”

Two Decisions Set Up Supreme Court Conflict

The Hively decision is directly contrary to the recent 11th Circuit decision in Evans vs. Georgia Regional Hospital. There, a 3-judge panel said that a lesbian employee may be able to raise a sex discrimination claim based on her behavior under a gender stereotype theory. However, it refused to recognize sexual orientation discrimination based solely on her status as a homosexual. The two decisions create a direct conflict. Discrimination based on a person’s same-sex relationship is legal in one part of the country, but illegal in another. These kinds of conflicts are ripe for resolution by the Supreme Court. If either Evans or Hively is appealed, the Supreme Court could soon review the rights of LGBT employees nationwide.

At Eisenberg & Baum, LLP, our employment discrimination attorneys stay up to date with current sexual orientation discrimination case law. We can help you understand your rights at work, and what your remedies might be if you have faced employment discrimination based on who you love. Contact Eisenberg & Baum, LLP, today for a free consultation.

Neil Gorsuch on Employment Discrimination — What His Confirmation Means for the Future

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On April 10, 2017, Neil Gorsuch was sworn in as the 113th Justice of the Supreme Court of the United States. Find out what that means for employment discrimination cases filed by women, LGBT, and disabled workers.

In this blog post I will review some of the 10th Circuit Court cases by Neil Gorsuch on employment discrimination as well as public commentary on his possible position within the Supreme Court. While no one can predict how a given judge or justice will rule on any particular case, I will discuss trends in his decisions which could indicate future his leanings on the Supreme Court.

Neil Gorsuch’s Confirmation to the Supreme Court

The process to fill the seat of Justice Antonin Scalia, who died in February 2016, has been long and involved. Senate Republicans refused to consider confirmation of Judge Merrick B. Garland, who was nominated by President Barack Obama in 2016, saying the choice should go to the next president. Following his inauguration, President Donald Trump put forward a new candidate: Judge Neil Gorsuch of the 10th Circuit Court of Appeals.

This time it was the Democratic Senators who objected. In addition to procedural complaints, they said that Neil Gorsuch’s record on women’s rights and workplace discrimination made him a dangerous choice to sit on the nation’s highest bench. In the end, the Republican-led Senate had to change its rules, lowering the voting threshold for confirmation to get around the Democrats’ filibuster. After all of the political maneuvering, Neil Gorsuch, age 49, was confirmed by a simple majority of the Senate, and took his judicial oath on April 10, 2017. The oath was administered by Justice Antony M. Kennedy, for whom Gorsuch had clerked early in his career.

Gorsuch’s confirmation does not end the questions about how the Justice will sway future Supreme Court decisions. Commentators continue to raise concerns about the way the Supreme Court’s newest justice has treated women, LGBT plaintiffs, and disabled workers in the past.

Neil Gorsuch on Women’s Rights

In his position on the 10th Circuit Court, Neil Gorsuch is perhaps most famous for joining the majority in Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) (en banc). In that opinion, the court ruled that closely-held corporations that have religious objections to contraception may refuse to pay for health insurance that included birth control prescriptions under the Affordable Care Act. However, Judge Gorsuch has also ruled on many gender discrimination cases, with mixed results:

  • Williams v W.D. Sports, N.M., Inc., 497 F.3d 1079 (10th Cir. 2007): The court overturned a jury verdict protecting a female hockey player from retaliation, but upheld the dismissal of 25 other counts of workplace discrimination.
  • Simpson v. University of Colorado Boulder, 500 F. 3d 1170 (10th Cir. 2007): The court ruled in favor of female college students who were sexually assaulted by the university’s football team, finding that the college was responsible and had shown deliberate indifference to the risks.
  • Orr v. City of Albuquerque, 531 F.3d 1210 (10th Cir. 2008): The court found in favor of plaintiffs on pregnancy discrimination claims, determining the defendant’s explanation was a pretext.
  • Pinkerton v. Colorado Dept. of Transp., 563 F. 3d 1052 (10th Cir. 2009): The court found that, while the plaintiff suffered sexual harassment, she improperly waited two months before reporting it, defeating her claim.
  • Strickland v. United Parcel Service, Inc., 555 F. 3d 1224 (10th Cir. 2009): Judge Gorsuch dissented from a decision finding sex discrimination against a female UPS driver. He felt that the supervisor had harassed male employees in the same manner as the plaintiff.
  • Almond v. Unified School Dist. No. 501, 665 F. 3d 1174 (10th Cir. 2011): The court found that the Lilly Ledbetter Fair Pay Act did not apply to school custodians required to transfer to different positions with lower pay.
  • Barrett v. Salt Lake County, 754 F. 3d 864 (10th Cir. 2014): The court upheld a jury verdict against the county finding it had retaliated against an employee who aided a female coworker in filing a discrimination claim.

While his decisions are mixed, some feel that what Justice Gorsuch has said off the bench may be a better gauge of his opinions now that he is not limited by higher court precedent. During its deliberation, former student Jennifer Sisk wrote to the Senate Judiciary Committee, warning that as her professor Gorsuch claimed women were using their companies for maternity benefits, only to quit after their babies were born. He told the class that future employers can and should question female interviewees about their family planning in order to protect their companies. Title VII prohibits discrimination based on pregnancy and prevents employers from asking these types of questions in the interview process. These comments, together with his checkered history on sexual harassment raise concerns about the future of gender discrimination claims at the Supreme Court level.

Neil Gorsuch on LGBT Employment Rights

Sexual orientation discrimination and harassment of trans* workers are on the forefront of employment discrimination law, and are likely headed to the Supreme Court in the near future. Justice Gorsuch has not ruled on many LGBT cases, but what he has to say tends to show he will not take kindly to the arguments.

In 2005, Gorsuch wrote an opinion article for National Review Online, in which he criticized liberal advocates for their use of litigation to push civil-rights reform.

His two decisions on LGBT issues at the 10th Circuit tend to echo that reservation:

  • Kastl v. Maricopa Co. Comm. College Dist. (unpublished): The court ruled against a transgender woman prohibited from using the women’s restroom at work until she provided documentation of gender reassignment surgery.
  • Druley v. Patton, 601 Fed. Appx. 632 (10th Cir. 2015) (unpublished): The court ruled against a transgender inmate seeking hormone treatment and transfer out of an all-male prison facility.

In addition, the Hobby Lobby decision suggests that Gorsuch may be willing to entertain a religious objection to hiring LGBT employees.

Neil Gorsuch on Disability Rights

The Americans with Disabilities Act requires employers to make reasonable accommodations to disabled employees. But in the past, Justice Gorsuch has not required employers or schools to go very far out of their way for the statute.

  • Thompson R2-J School v. Luke P., Ex Rel. Jeff P., 540 F. 3d 1143 (10th Cir. 2008): The court refused to define the “free appropriate education” a school district must provide to a disabled student. (A case applying this decision is currently under consideration by the Supreme Court.)
  • AF v. Espanola Public Schools, 801 F. 3d 1245 (10th Cir. 2015): The court required a student to exhaust her administrative claims under IDEA before suing under the ADA.
  • Garcia v. Board, Educ., Albuquerque Public Schools, 520 F. 3d 1116 (10th Cir. 2008): The court found harmful violations did not require equitable relief, giving the trial court discretion to deny any remedy.
  • Hwang v. Kansas State University, 753 F. 3d 1159 (10th Cir. 2014): The court ruled that reasonable accommodations did not require a university to hold a job open beyond six months’ sick leave.
  • Cinnamon Hills Youth Crisis v. St. George City, 685 F. 3d 917 (10th Cir. 2012): The court denied a disability discrimination case based on the disparate impact of policy on a residential treatment center.
  • Elwell v. Oklahoma ex rel. Bd. of Regents, 693 F. 3d 1303 (10th Cir. 2012): The court ruled that Title II of the ADA doesn’t allow for a disability discrimination lawsuit against a public employer.

These opinions show a strong tendency for Neil Gorsuch to read disability statutes in favor of employers, denying employee disability discrimination lawsuits when they don’t strictly comply with the statutes’ terms.

Some commentators warn that a judge’s circuit court decisions don’t always predict his (or her) Supreme Court positions. Without the constraints of precedential decisions, a Supreme Court justice can sometimes use the position to make the changes he or she wants to see in the law.

But no one justice, even Anthony Kennedy, controls the future of the Court. Even if Justice Neil Gorsuch does live up to his reputation regarding workers’ rights, his voice replaces a similarly conservative Justice, Anton Scalia. While the Justice’s confirmation may not push the court to the left the way Democrats may have wanted under Obama, it doesn’t automatically mean the end of advances in employment discrimination law either.

At Eisenberg & Baum, LLP, our employment discrimination attorneys have been litigating gender discrimination and disability rights claims across administrations and under a wide variety of courts. If you have been discriminated against at work, you don’t have to wait for the next change at the Supreme Court. Contact Eisenberg & Baum, LLP, today for a consultation.

11th Circuit Court Says No to Sexual Orientation Discrimination Claim

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A recent U.S. Court of Appeals decision has cast a shadow over the sexual orientation discrimination claims of gay and lesbian employees nationwide. Find out what the case does and doesn’t say about same-sex gender stereotype discrimination in the workplace.

In this blog post I will review the U.S. Court of Appeals decision in Evans vs. Georgia Regional Hospital. I will explain the different rulings contained within the opinion, and the impact of the decision on LGBT employees across the country.

11th Circuit Court Says No to Sexual Orientation Discrimination Per Se

The 11th Circuit made waves in the news recently. Reporters latched on to a portion of its opinion in Evans vs. Georgia Regional Hospital saying the court ruled that discrimination against gay workers was not illegal. But that’s not exactly what the court said. Instead, the court held that there is no independent cause of action (basis for a lawsuit) if a person is discriminated against solely because of his or her sexual orientation.

The case arose from a complaint filed with the Equal Employment Opportunity Commission by Jameka Evans against her employer, Georgia Regional Hospital. Evans worked as a security guard at the hospital. She filed a lawsuit on her own, without an attorney, claiming that she faced discrimination at work based on her sexual orientation and gender non-conformity. She said by wearing a male uniform and a short haircut her sexual orientation became evident. That was the basis for her receiving less desirable shifts and being targeted for termination. She also alleged that a less qualified coworker was promoted over her. When she filed a human resources complaint, she was retaliated against by a supervisor who created a hostile work environment.

The Court of Appeals said it could not find a basis for Evans’s sexual orientation discrimination claim based on status. It was prohibited by doing so by a 1979 circuit court opinion which stated “[d]ischarge for homosexuality is not prohibited by Title VII.” The court interpreted this to mean that discrimination based purely on a person’s LGBT status was not illegal under the federal Civil Rights Act.

Gender Non-Conformity Discrimination Is Still Illegal

Under the Evans decision, a person may not file an employment discrimination claim based simply on the fact that his or her employer was prejudiced against homosexual employees as a class. But that doesn’t mean that gay and lesbian workers aren’t protected. The court very clearly found that a lawsuit based on gender non-conformity is allowed. It said:

We hold that the lower court erred because a gender non-conformity claim is not ‘just another way to claim discrimination based on sexual orientation,’ but instead, constitutes a separate, distinct avenue for relief under Title VII.

So while Evans may not have had a claim for bias employment decisions based on the fact that she was a lesbian, she may have been able to bring that same lawsuit based on the way that status manifested. If her behavior fell outside of traditional gender norms (including choosing to wear pants or cut her hair short), and that behavior resulted in discriminatory actions against her, then Evans could still file suit under the gender discrimination protections in Title VII.

How Evans v Georgia Regional Hospital Affects LGBT Workers Nationwide

A Circuit Court opinion like Evans can affect employees well outside of its region. Only lower courts in Alabama, Georgia, and Florida are required follow to the 11th Circuit Court’s ruling. But courts nationwide are allowed to use this decision as a basis for their own legal decisions. Judges across the country may, if they choose, rely on the reasoning in Evans to reach decisions in other LGBT discrimination cases.

At the same time, the 7th Circuit Court of Appeals has just decided a sexual orientation discrimination case in favor of the employee. The 7th Circuit ruled that discrimination based on a person’s sexual orientation is gender discrimination per se (the claim Evans rejected). This could pave the way to a United States Supreme Court decision on the matter which could clearly establish or reject a gay or lesbian employee’s rights under Title VII.

How an Employment Discrimination Attorney Helps

Jameka Evans did not have an attorney; she filed her lawsuit herself. And that likely had a strong affect on her case. The Court of Appeals made clear that she may have had a stronger claim if her complaint had included more details about the employer’s discriminatory practices. In fact, the court directed that she be allowed to amend her complaint as the case progressed, to more clearly lay out her claims for behavior-based gender discrimination.

At Eisenberg & Baum, LLP, we don’t want anyone’s discrimination claim to fail because it was poorly written or presented. We understand that our clients may not always know how to present themselves before the EEOC magistrates or in court. That’s why we take the time to help our clients understand the process and learn the strengths and weaknesses of their cases. If you believe you have been subject to sexual orientation discrimination based on sexual stereotypes, contact Eisenberg & Baum today. Our employment discrimination attorneys will help you understand the law and present your best case.

What Does the EEOC Do?

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A lot of people have heard of the EEOC, but like many government agencies, it isn’t always clear what falls within the organization’s charge. If you are like many people you may be wondering “What does the EEOC do?”

In this blog post, I will review the role of the Equal Employment Opportunity Commission (EEOC) in reviewing, negotiating, and litigating discrimination claims. I will explain the laws the EEOC is charged to protect, and explain what happens after you file an EEOC complaint.

The EEOC Enforces Civil Rights Laws

The EEOC is charged with enforcing a wide variety of discrimination laws:

  • Title VII of the Civil Rights Act
  • The Pregnancy Discrimination Act
  • The Equal Pay Act
  • The Age Discrimination in Employment Act
  • Title I of the Americans with Disabilities Act
  • The Rehabilitation Act
  • The Genetic Information Nondiscrimination Act

Together, these statutes protect against illegal discrimination at work, in housing, and within the federal government. The EEOC hears complaints related to discrimination based on:

  • Race or color
  • Religion
  • National origin
  • Sex or gender
  • Marital status or pregnancy
  • Old age
  • Disability
  • Retaliation for participating in an investigation of discrimination

In 2012, the EEOC took the position that discrimination based on a person’s sexual orientation and gender identity or expression was illegal under existing gender discrimination laws. Over the next four years, there were a significant number of EEOC decisions and federal court rulings on sexual orientation discrimination and transgender harassment. However, there has not been a clear, binding decision from a Court of Appeals or the U.S. Supreme Court. Now, under the Trump Administration, the EEOC’s website relating to those issues have been taken down. It isn’t clear whether the EEOC will continue to put a high priority on these cases.

What Does the EEOC Do With Private Complaints?

If you think you have been discriminated against, you have 180 days to file a complaint with the EEOC (or 300 when state discrimination laws also apply). You can do so with or without the help of an attorney. But what does the EEOC do once it gets that complaint?

When you file an EEOC complaint against your private employer (rather than the federal government), the matter is referred to an EEO counselor. The counselor will inform you of your rights and of how the process works.

The EEOC Doesn’t Take Every Complaint

Even before your complaint goes to a hearing, the EEOC may still dismiss it if:

  • The counselor believes there is no claim
  • The same claim has already been decided (or is pending)
  • The complaint was filed too late
  • You have other complaints that are unrelated to your current complaint that aren’t disclosed to the counselor
  • You already filed a civil lawsuit on the issue
  • You already chose to use a different procedure (including grievances) instead
  • You fail to communicate with the EEO counselor
  • You have complained about the EEOC process in the past
  • You have filed your complaint for an improper purpose

If some or all of your complaints are being dismissed, the EEOC must explain the reason in writing. You have the right to appeal the decision once all of your claims are resolved.

Informal Counseling

Unless the counselor dismisses your complaint, he or she will work with you and your employer to attempt to resolve the matter informally. If your need is urgent, or if your employer is not interested in resolution, you may also request a formal hearing before an EEOC administrative judge.

The informal counseling process can take up to 30 days. If your concerns aren’t resolved within that period the EEOC will send you a Notice of Final Interview, which gives you 15 days to file a complaint in the appropriate agency based on the nature of the discrimination alleged.

EEOC Mediation

Many EEOC complaints get referred to mediation instead of the informal counseling process. This is a form of alternative dispute resolution where you and your employer agree to sit down with a neutral mediator to try to find a resolution that everyone can live with. However, many employers will not agree to mediate, particularly if you work for a smaller business not as familiar with the process.

EEOC Investigations

If the informal process or mediation fail to resolve the matter, the formal investigation begins. Your employer will be asked to provide a “Respondent’s Position Statement” in response to your complaint. You are entitled to review and respond to that statement. Depending on the nature of your complaint, the EEOC may also visit your workplace, interview witnesses, gather documents, and ask your employer additional questions. This process can take time — in 2015, an investigation took an average of 10 months to complete.

EEOC Notice of Right to Sue

An EEOC complaint ends one of three ways:

  1. The EEOC negotiates a voluntary settlement with you and your employer
  2. The EEOC is not able to determine that the law has been violated or decides that it will not pursue a lawsuit on your behalf. In either of these cases, it will send you a “Notice-of-Right-to-Sue.” It signals that you have completed the administrative process and may now proceed to court through a private lawsuit.
  3. The EEOC files a lawsuit in federal court on your behalf.

A Notice of Right to Sue doesn’t necessarily mean you have a losing case. The EEOC has limited resources, so it only chooses to represent employees with strong cases in certain high-priority areas. If your case doesn’t fall within one of those priorities, you will need to turn to a private employment discrimination attorney to file a lawsuit on your behalf.

At Eisenberg & Baum, LLP, we are happy to help you through the EEOC process. Whether you are preparing for a formal hearing or have been sent a Notice of Right to Sue, our employment discrimination lawyers will review your case and help you prepare a strategy to get the relief you need. Contact us today to schedule a free initial consultation and get your case started.