Sexual Harassment and Assault Allegations Cloud Kavanaugh Confirmation

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The name Brett Kavanaugh has been on every news person’s lips for nearly a month. In the midst of a heated Supreme Court confirmation process, Dr. Christine Blasey Ford came forward with allegations of sexual harassment and assault. She claimed Kavanaugh had tried to rape her when they were teenagers in the 1980s. Now the dust has settled and Kavanagh has been confirmed, leaving many wondering what do those allegations mean for the Court, and how will Kavanaugh rule when sexual harassment cases come before the Court?

In this blog post, I will review allegations of sexual harassment and sexual assault against Supreme Court Nominee Brett Kavanaugh. I will discuss how the Senate addressed these allegations. And I will review Kavanaugh’s position regarding sexual harassment and gender discrimination, as revealed in his previous federal court decisions.

Dr. Christine Blasey Ford Raises Sexual Harassment and Assault Claims Against Brett Kavanaugh

Shortly after Federal Circuit Court Judge Brett Kavanaugh was nominated to fill Justice Anthony Kennedy’s seat on the Supreme Court, Professor Christine Blasey Ford, a psychological researcher at Palo Alto University sent a letter to Senator Dianne Feinstein. In that confidential letter, she said Kavanaugh had sexually assaulted her at a house party in the early 1980s when they were both teenagers.

Dr. Ford’s account, which later became public, described Kavanaugh and his friend Mark Judge as “stumbling drunk” when they pushed her into an upstairs bedroom and turned up the music to cover her yelling. She reported that Judge watched as Kavanaugh pinned her to a bed, groped her, ground his body into her, and tried to pull off her clothes. She reported trying to scream, but he put his hand over her mouth. She said:

“I thought he might inadvertently kill me. . . . He was trying to attack me and remove my clothing.”

Ford said she was able to escape when Judge jumped onto the bed where Kavanaugh held her, sending them tumbling to the floor. She fled to a bathroom and then left the house.

Two other women, Deborah Ramirez and Julie Swetnick, also came forward alleging Kavanaugh had engaged in sexual misconduct as a teenager. Ramirez claimed he exposed himself to her while they were at Yale University. Swetnick said the sexual misconduct happened while they were at parties as teenagers.

Senate Judiciary Committee Holds Hearings on Sexual Harassment and Assault Allegations

Kavanaugh, “categorically and unequivocally denied” Ford’s allegations, saying he didn’t even attend the party. After considering the matter, and negotiating with Dr. Ford’s attorney, Senate Judiciary Committee Chairman Chuck Grassley scheduled hearings for both Dr. Ford and Kavanaugh on Thursday, September 27, 2018. In an unusual move, the Republican senators on the panel brought in Arizona prosecutor Rachel Mitchell to question Dr. Ford, though they mostly questioned Kavanaugh themselves.

Dr. Ford, who is a psychologist with a history of writing on the long-term impacts of trauma (including sexual assault), testified to her own memory of the events and the reasons that memory should be deemed credible. When Kavanaugh read his prepared remarks his presentation was emotional, and oftentimes highly politically charged.

Supreme Court Nominees and Sexual Harassment

This isn’t the first time a Supreme Court nominee has been accused of sexual harassment. In 1991, Anita Hill spoke out against the confirmation of Justice Clarence Thomas. Hill accused Thomas of sexual harassment while working as her superior at the Equal Employment Opportunity Commission. Hill faced invasive questioning about her allegations, her credibility, and what she had to gain by coming forward. Dr. Ford has faced many of those same questions, both from Senators and in the media.

The FBI Investigates Sexual Assault Claims

The Senate Judiciary Committee advanced Kavanaugh’s confirmation on September 28, 2018. But Republican Senator Jeff Flake, a member of the committee, said he would not vote to confirm Kavanaugh without an FBI investigation into all 3 sexual misconduct claims. The FBI completed a week-long investigation, including interviews with several named witnesses to the events. However, the White House directed that investigation to be “specific in scope” and some believe it was not enough to determine the truth of the women’s claims of sexual harassment and assault.

Justice Brett Kavanaugh Confirmed in Spite of Allegations

Ultimately, on Saturday, October 6, 2018, Brett Kavanaugh was confirmed to the Supreme Court by a narrow vote: 50 to 48. He was then sworn in by Chief Justice John G. Roberts Jr., and retired Justice Anthony M. Kennedy, whom he replaces. He heard his first cases Monday morning, October 9, 2018.

Kavanaugh’s Judicial History on Employment Law Issues

Now that his is on the bench, Kavanaugh’s history of alleged sexual assault may take a back seat to the power he has to affect the rights of women and employees going forward. As a federal judge, Kavanaugh has a history of writing opinions that favored the employer, narrowly interpreting worker protections and anti-discrimination laws.

In Miller v Clinton, Kavanaugh wrote another dissent saying mandatory retirement was not against the Age Discrimination in Employment Act when used against a safety inspector at a U.S. embassy overseas. He also dissented in Howard v Office of the Chief Administrative Officer of the U.S. House of Representatives. There he said the Constitution’s speech or debate clause prevented a government employee from suing for discrimination and retaliation because the case would have to disclose legislative activities. He wrote a similar opinion in Rattigan v Holder, a Title VII case.

However, Kavanaugh does seem to stand behind some private employees facing workplace discrimination. In Ayissi-Etoh v Fannie Mae, he wrote a concurrence (agreeing with the main opinion) saying that “being called the n-word by a supervisor … suffices by itself to establish a racially hostile work environment.” In Ortiz-Diaz v. US Department of Housing and Urban Development, he also concurred saying denial of a requested job transfer should always qualify as an adverse employment action.

Together, these opinions seem to suggest that as a Supreme Court Justice Brett Kavanaugh’s opinions will largely depend on which employer is doing the discrimination. While employees of private companies may be able to count Kavanaugh an ally, he seems reluctant to allow federal workers to bring claims against their government employers.

At Eisenberg & Baum, LLP, our sexual harassment attorneys know how to argue in front of judges and justices who tend to favor employers. When the figures on the bench change, we can help you review your legal options, so you know what to expect. If you are facing sexual harassment or gender discrimination, contact us today to schedule a free consultation.

* Photo thanks to Ninian Reid, used with permission with some rights reserved.

Distributing Nude Pictures of Coworkers is Sexual Harassment and a Crime in New York City

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Distributing nude pictures of coworkers may be one of the most humiliating things a person can do to a fellow employee. Yet, the media has made news out of celebrities’ nude images going viral. That has prompted angry ex-partners to engage in “revenge porn” that hurts coworkers pride, and their professional reputations. Now the New York City Counsel is stepping in to stop it. The City has declared distributing nude pictures of coworkers both sexual harassment and a crime, and it can expose employees and employers alike to lawsuits and steep civil fines.

In this blog post I will review the New York City ordinance prohibiting unlawful disclosure of an intimate image. I will explain when distributing nude pictures of coworkers is sexual harassment and could expose employees to civil lawsuits and criminal charges in New York City. And I will explain what the victims of so-called “revenge porn” should do to protect their rights and their privacy.

New York City Council Cracks Down on Sexual Harassment

2018 has been a big year for the New York City Council. Earlier this year the City passed one of the nation’s strictest anti-sexual harassment ordinances. The law put into place many reporting requirements and protections for employees facing sexual harassment at work. It was also the first law of its kind to require city agencies and private employers with at least 15 employees to hold annual anti-sexual harassment training for their staffs.

New Ordinance Makes Distributing Nude Pictures of Coworkers a Crime

At the same time, a law the New York City Council passed late last year has now fully come into effect. The law makes it illegal, and a crime, to distribute nude pictures of another person without his or her consent. Perhaps, the law was prompted in part by the recent trend of celebrity “revenge porn” incidents.

Section 10-177*3 of the NYC Administrative Code makes “unlawful disclosure of an intimate image” a crime. That includes traditional pornographic images of sex acts, but it also includes any image that shows another person’s “intimate body parts”. The law also protects against the threat of distribution as long as the victim could be identified either from the picture itself or the circumstances of the disclosure. A person who engages in distributing nude pictures of coworkers — or anyone else — without consent may be charged with a criminal misdemeanor and face up to one year in jail.

Distributing Nude Pictures of Coworkers Can be Devastating Sexual Harassment

There are few forms of sexual harassment more severe than distributing nude pictures of coworkers. When explicit images of a person make their way around an online office chat system or email server, or get put up on the factory floor, it can immediately decimate the victim’s professional reputation. Particularly when such images target a woman, it forces even well-meaning employees to think about their coworker not for her abilities, but for her body.

This kind of demeaning sexual harassment can cause immense emotional harm, even to the point of resulting in physical illness. It can force a person to leave gainful employment to be rid of the hostile work environment caused by the exposure of his or her intimate images.

City Law Gives Victims of “Revenge Porn” the Power to Sue Coworkers and Employers

To combat the harmful effect of distributing nude pictures of coworkers, the New York City Council built a powerful civil cause of action into the new law in addition to the criminal charges. It says that the victim of non-consensual distribution of nude pictures can sue the person violating the statute and the company that allowed it to happen to recover damages for:

  • Compensation of actual costs associated with the disclosure, including medical or psychological bills, or costs associated with finding replacement employment
  • Punitive damages designed to punish the defendant
  • Injunctive and declaratory relief intended to change company policy and prevent future distribution of nude pictures or other forms of sexual harassment
  • Attorneys’ fees and costs
  • Any other relief the court deems appropriate

This civil cause of action gives New York judges and sexual harassment attorneys the flexibility to craft legal remedies that will address the harm caused by distributing nude pictures of coworkers. Since every workplace and every employee is different, what will make one person whole may not address the needs of someone else.

Similar statutes have been considered by state legislatures and city councils across the country. Employees outside of New York City may have access protections as well. Even where there is no explicit statute against distributing nude pictures of coworkers, the behavior could be the basis of a sexual harassment complaint filed with the Equal Employment Opportunity Commission (EEOC) or in federal or state court.

The harm caused by distributing nude pictures of coworkers cannot be overstated. An experienced sexual harassment attorney can help you understand what local protections are available and choose a strategy to receive compensation for your loss. At Eisenberg & Baum, LLP, we know how to fight back against this form of severe sexual harassment. We can meet with you at our headquarters in the heart of New York City, or conference with you remotely, to help you find protection and compensation under federal, state, and local laws. Contact Eisenberg & Baum, LLP, today to talk to a sexual harassment attorney.

Is Hugging Sexual Harassment?

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Not all sexual harassment involves sex. Unwanted comments and physical attention can make the workplace an uncomfortable place to be. When these seemingly minor offenses pile up and make a hostile work environment, it can leave you wondering, “Is hugging sexual harassment?”

In this blog post I will discuss whether hugging is sexual harassment. I will review reports of Pixar Chief Creative Officer John Lasseter, who resigned following complaints about unwanted workplace hugging. I will also describe what employees can do if hugs are making them uncomfortable at work.

Pixar Executive Steps Down for Hugging Sexual Harassment Claims

Insiders at Disney/Pixar have long raised concerns about one of the company’s top executives, John Lasseter, for unwanted sexual advances. Lasseter describes himself as “Peter Pan”, with a jolly public persona and a reputation for greeting anyone around with lengthy bear hugs. As early as 2011, The Wall Street Journal published pictures of Lasseter hugging at least 48 people in one day at the office.

Then in November 2017, the Hollywood Reporter interviewed multiple Pixar employees who spoke out about Lasseter’s behavior anonymously, for fear it would threaten their careers in animation. One employee said he was also known for “grabbing, kissing, making comments about physical attributes.” He also had a reputation for drinking heavily at premier parties and other company social events, which would increase his behavior.

Is Hugging Sexual Harassment Under Federal Law?

Given the nature of the complaints against Mr. Lasseter, there were some who thought he had been unfairly included in the #TimesUp movement that brought to light sexual misconduct claims against Harvey Weinstein and so many others. They questioned whether hugging counts as sexual harassment.

Under Title VII of the Civil Rights Act, illegal sexual harassment includes any unwelcome sexual advances, requests for sexual favors, jokes, or slurs that are sexual in nature. Before they can be the basis for a complaint in federal court or with the Equal Employment Opportunity Commission (EEOC), the conduct must be so frequent or severe that it creates a work environment the average person would find hostile or offensive. Sexual harassment also includes circumstances where those requests or conduct result in adverse employment decisions (including quid pro quo sexual requests).

That means, under federal law, hugging can be the basis for a federal sexual harassment claim, if it happens so often that a normal person would be uncomfortable. Generally, the person complaining about the sexual harassment will need to show that she or he objected to the behavior but it continued anyway. However, in many cases, hugging is just the most obvious symptom of more serious forms of sexual harassment.

“Day of Listening” Reveals Sexual Harassment Problems at Disney

At the time the complaints became public, Lasseter agreed to take a leave of absence from Pixar. He said:

“I have always wanted our animation studios to be places where creators can explore their vision with the

John Lasseter — Photo by Vanessa Lua

John Lasseter – Photo by Vanessa Lua*

support and collaboration of other gifted animators and storytellers. . . . This kind of creative culture takes constant vigilance to maintain. It’s built on trust and respect, and it becomes fragile if any members of the team don’t feel valued. As a leader, it’s my responsibility to ensure that doesn’t happen; and I now believe I have been falling short in this regard.”

He said he was stepping down in light of “difficult” and “painful” conversations about his “missteps.” A former Pixar employee said Lasseter’s statement trivialized his behavior. The employee said:

“To sum this up as unwanted hugs is belittling and demeaning. If it was just unwanted hugs, he wouldn’t be stepping down.”

In response to Lasseter’s leave, Disney conducted a “day of listening” in February 2018. What the company heard was that Lasseter’s behavior went beyond hugging. Female employees of the animation giant learned to turn their heads quickly to avoid being kissed. They would also sit bent over in a defensive posture, with an arm across their thighs, to prevent Lasseter’s hands from “traveling.” During their investigation, Disney Animation and Pixar also learned that staff members found Lasseter increasingly domineering.

In response, in June, 2018, the Walt Disney Company announced Lasseter would not be coming back. Despite his long, prestigious career, the company decided that his hugging and other sexual behavior had harmed the company’s culture and its employees. They announced that Lasseter will take on a consulting role until the end of 2018, and won’t have an office at the company. Then he will leave permanently.

Hugging is a form of sexual harassment. If it happens frequently enough, and despite employee objections, it can create a hostile work environment and trigger a violation of federal employment law. It can also be a symptom of more severe, if less publicly visible, forms of sexual harassment that can seriously harm an employee, and a company.

At Eisenberg & Baum, LLP, our sexual harassment attorneys know what hugging sexual harassment looks like, and the harm it can do to employees unable to avoid the unwanted sexual contact. We will take your claims seriously and help you create a plan to get you back to a comfortable working environment, including filing an EEOC complaint or federal lawsuit. Contact us today to schedule a free consultation.

* Photo by Vanessa Lua, used with permission. Some rights reserved under Creative Commons license.

Pregnancy Discrimination at Work in America’s Big Businesses

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Starting a family shouldn’t come with a risk of being fired. But expectant mothers across the country face pregnancy discrimination at work. The illegal trend to hold women back because they have children can strike anywhere, from small companies to America’s big businesses.

In this blog post, I will discuss how America’s big businesses deal with employee pregnancies. I will review laws against pregnancy discrimination at work and what your options are if you feel your job is on the line because your family is growing.

4 Federal Laws Protect Against Different Types of Pregnancy Discrimination

A recent New York Times Article, “Pregnancy Discrimination Is Rampant Inside America’s Biggest Companies” tells the stories of several women who faced firing, job stagnation, and other forms of pregnancy discrimination at some of the country’s largest employers. The article demonstrates that problem is everywhere: from Walmart to Wall Street.

You can sometimes tell how serious, or at least how complicated, a legal issue is by how many laws apply to it. That is certainly true for pregnancy discrimination. Depending on the circumstances no less than four federal civil rights laws can come into play:

Pregnancy Discrimination Act Specifically Protects Parents-to-Be

The Pregnancy Discrimination Act of 1978 specifically prevents employers from treating a woman unfavorably because of pregnancy, child birth, or related medical conditions. It applies to current employees and applicants, preventing pregnancy discrimination in:

  • Hiring
  • Firing
  • Pay rates
  • Job assignments
  • Promotions
  • Layoffs
  • Training
  • Fringe Benefits
  • Insurance coverage

Women facing discrimination because they are pregnant, have recently had children, or are of an age that the employer expects them to have children, are entitled to file a complaint with the Equal Employment Opportunity Commission (EEOC) or in federal court.

Rachel Mountis spoke to the New York Times about the gender discrimination she faced at Merck, one of the country’s largest pharmaceutical companies. Even though company policies “celebrate women[‘s] hard work and tenacity”, the policies did not seem to apply when Mountis became pregnant. A few weeks before her due date date she was downsized, despite receiving promotions and awards for “outstanding leadership.” She said:

“‘On paper, I was the same professional that I was nine months earlier,’ she said. Being pregnant ‘was the only thing that was different.'”

Title VII of the Civil Rights Act Prevents Gender Discrimination

Because pregnancy is necessarily a gender-specific problem, discrimination against pregnant mothers often crosses the line into illegal gender discrimination under Title VII of the federal Civil Rights Act. If your employer has special rules for women facing pregnancy (or men trying to exercise paternity leave), it may count as illegal gender discrimination.

Merck is also facing a lawsuit by Kelli Smith for paying women less than men, passing them over for promotions, and allowing sexual harassment by male superiors. The pregnancy discrimination she experienced was a part of this larger gender discrimination problem. Smith said a male colleague told her she was “not going anywhere” once she became pregnant in 2010, and her professional career derailed as a result of gender and pregnancy discrimination.

Equal Pay Act Protects Against Wage Discrimination Related to Pregnancy Discrimination

For some women, choosing to become pregnant means their careers, and their pay, will stagnate. New mothers (or fathers) may choose to reduce hours or take time off work to raise their children. These gaps in employment can make it hard to get ahead in competitive industries.

But not all wage differences related to pregnancy are voluntary. A 2014 study by the Center for Economic Studies (CES) showed that the spousal pay gap nearly doubles between the two years before couples’ first child and the one year after the child’s birth. While men earn an average of 6% more when they become fathers, women earn 4% less. A 2017 review of U.S. Census data shows that at the end of that first year, a child’s father earns an average of over $25,000 more than his or her mother. The disparity is based on more than just time off. It is also the result of overt and subtle wage discrimination.

Pregnant women in physically demanding fields often find themselves removed from higher-paying positions out of fear the physical labor “will hurt the baby” even when their obstetricians have given them the okay to keep working. In office settings, pregnant mothers often are often passed over for promotion or bonuses because of assumptions that they are less committed to their jobs or that “baby brain” will affect their work.

Paid time off is a part of a person’s compensation. When an employer pays temporarily disabled employees, but not pregnant women, it can sometimes be a form of pregnancy discrimination. A 1976 United States Supreme Court case against General Electric about the right to paid pregnancy leave gave rise to the Pregnancy Discrimination Act.

Americans with Disabilities Act Applies to Temporary Pregnancy-Related Medical Restrictions

The Pregnancy Discrimination Act also echoes parts of the Americans with Disabilities Act (ADA), protecting expectant mothers whose pregnancies come with medical restrictions. If a woman is temporarily medically unable to do her job because of her pregnancy or recovery from child birth, the Pregnancy Discrimination Act says her employer must treat her the same as any other temporarily disabled employee. Under the ADA, that includes granting reasonable accommodations for disabilities as long as it does not create an undue hardship for the business.

Otisha Woolbright worked for Walmart in the deli and bakery in 2013. Part of her job included lifting 50-pound trays of chicken into the store’s industrial ovens. This created a medical problem while she was pregnant and her doctor told her she could be at risk of a miscarriage if she continued the work. But Walmart refused to assign her to a different task. Ms. Woolbright told the New York Times that her supervisor said if she couldn’t lift the chickens, she could “walk out those doors.” After a second medical scare, Ms. Woolbright asked about maternity leave and was fired. It took her a year to find another job.

Pregnancy discrimination can happen in any workplace, from a family-run small business to a corporate giant. But there are a number of federal and state laws that protect expectant mothers. At Eisenberg & Baum, LLP, our experienced gender discrimination attorneys know how to weave those laws together to create a safety net for our clients. We will review your case and help you decide when and how to file a complaint. Contact us today to schedule a free consultation.

Athletes’ Testosterone Blamed for Environment of Sexual Harassment at Nike

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When your workplace has an environment of sexual harassment it can feel like no one is listening to your complaints and there’s nothing you can do. An anonymous survey that swept through Nike revealed the company’s focus on athletes had created a locker room mentality. The environment of sexual harassment at Nike drove women away and caused supervisors to ignore complaints of discrimination.

In this blog post, I will review reports of executives leaving as part of a sexual harassment scandal at Nike. I will explain how a survey revealing a hostile work environment of sexual harassment led to sweeping changes in leadership. I will discuss options available to employees who feel like office culture prevents them from speaking up.

Anonymous Surveys Lead to Shake-Ups at Nike

On March 5, 2018, a group of women employees delivered a packet of anonymous survey questionnaires to Nike CEO Mark Parker. The questionnaires revealed an environment of sexual harassment across departments, ranging from lower level IT to vice presidents.

When news of the questionnaires went public, the New York Times began to interview the women of Nike – both current and former employees:

“There were the staff outings that started at restaurants and ended at strip clubs. A supervisor who bragged about the condoms he carried in his backpack. A boss who tried to forcibly kiss a female subordinate, and another who referenced a staff member’s breasts in an email to her.Then there were blunted career paths. Women were made to feel marginalized in meetings and were passed over for promotions. They were largely excluded from crucial divisions like basketball. When they complained to human resources, they said, they saw little or no evidence that bad behavior was being penalized.”

Many of the stories were shared under the cover of anonymity due to non-disclosure agreements or fear of retaliation.

In response to the surveys, no less than 11 Nike executives and senior managers resigned, retired, or announced they would be leaving the company. That includes Nike president Trevor Edwards, vice president and general manager of global categories Jayme Martin, and Antoine Andrews, the head of diversity and inclusion.

Athlete’s Testosterone Said to Contribute to Environment of Sexual Harassment

Workplace culture doesn’t form overnight. It often isn’t the result of a handful of bad actors either. Instead, an environment of sexual harassment is formed over time, as bad behavior is excused and supervisors’ conduct make women feel they have no choice but to leave to avoid discrimination. It can depend on hiring choices and training, as well as the employer’s response to allegations of sexual harassment. D’Wayne Edwards, a former designer for the Jordan Brand of Nike products, told NPR that the “laser focus on the athlete at Nike” was affecting workplace culture:

“‘There are certain pockets of the company where that jock kind of mentality does exist … And I guess it spills over into some of the corporate processes.’ … At Nike, he says the culture around athletics and the tendency to hire athletes meant a lot of people didn’t understand ‘that this is not the locker room. This is a corporate environment, and there’s a different way to act and behave.'”

The environment of sexual harassment at Nike has caused a lot of talent to leave, and not just the executives and supervisors who have resigned due to the scandal. Female employees have been leaving when their concerns went unanswered.

Ann Wallace, an IT professional, was forced to leave her position with the company after she was asked to meet with potential candidates at a conference and ask for their room numbers. “I didn’t feel comfortable asking a random guy for his room number,” she told NPR. Wallace didn’t file a complaint because other times when she had reported misconduct she was told she was too sensitive, or that it would be hard to fire people. She felt nothing would change if she complained. Instead she left, along with 5 other IT employees.

Finding Solutions to an Environment of Sexual Harassment

The questionnaires and the resignations at Nike show that sometimes there are solutions to an environment of sexual harassment. The challenge can be finding a way to have your concerns taken seriously. Internal processes may not be helpful when the hostile work environment includes those reviewing the complaints.

In those cases, you may need to look outside the company for help. Title VII of the federal Civil Rights Act, as well as state laws across the country make it illegal for companies to ignore sexual harassment in the workplace. An experienced sexual harassment attorney can help you get through to your employer and make it clear that this kind of behavior is not acceptable at work. If conduct in the workplace is severe enough, you may be entitled to file a complaint with Equal Opportunity Employment Commission (EEOC) or even file a complaint in state or federal court.

At Eisenberg & Baum, LLP, our employment discrimination attorneys know how to disrupt an environment of sexual harassment. Even if you don’t have an envelope full of questionnaires like the ladies of Nike, we can help you build support for your position. Depending on your priorities and your circumstances, we can negotiate with your employer for changes at work, or file an EEOC complaint or lawsuit on your behalf to get compensation for your losses and damages. Escaping an environment of sexual harassment is never easy, but we can help. Contact Eisenberg & Baum, LLP, today to talk to an employment discrimination attorney.

Enforcing Your Discrimination-Based Settlement Agreement

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Increasingly, complaints of workplace discrimination or harassment are settling out of court. Whether through the Equal Employment Opportunity Commission’s (EEOC’s) mediation process, or as the result of negotiations by private employment discrimination attorneys, these cases often result in settlement agreements, rather than judgments. But what happens after everyone signs on to a discrimination-based settlement agreement? What are your options to enforce your rights, and get the relief you need?

In this blog post I will explain what happens after a discrimination-based settlement agreement has been reached. I will discuss EEOC v TRU Towing, Civil Action No. 2:18-cv-3874, and review a worker’s options when an employer does not live up to the terms of a mediation agreement or court order.

Mediation, Negotiations, and Alternative Dispute Resolutions in Employment Discrimination Cases

The EEOC received 84,254 charges nationwide in 2017. That includes claims of discrimination, harassment, equal pay violations, and other civil rights issues. But the number of those complaints that ever saw a courthouse is far lower. In recent years, the EEOC has emphasized the use of its Federal Sector and Private Sector Mediation Programs. These voluntary processes put employees and employers’ agents together with a neutral mediator to come to a resolution that addresses everyone’s needs. For fiscal year 2015, the EEOC resolved 8,243 complaints through this process, including over $157.4 million in employee remedies.

Even when a lawsuit is necessary, alternative dispute resolutions (ADR) like mediation, arbitration, and informal negotiations between attorneys often resolve the case without the time and expense of trial. One report suggests that as little as 15% of employment lawsuits between January 2009 and July 2017 (584 cases) went to trial. The remaining 54,810 were dismissed – most likely because a settlement had been reached.

Settlement Agreements Put Resolutions in Writing

A discrimination-based settlement agreement can include a variety of terms and provisions designed to address the employee’s injuries, direct future employer behavior, and resolve any outstanding lawsuit or EEOC complaint. Depending on the reason for the complaint and the employee’s desired outcome, a settlement agreement could include:

  • Lump-sum or installment payments of lost wages or other money damages
  • Plans to return the employee to work in the same or similar position
  • Promises of a neutral or better recommendation to future employers
  • Disciplinary actions against individual supervisors or coworkers responsible for discrimination
  • In-house policy changes to prevent future discrimination
  • Independent oversight or review of company practices
  • Creation of mandatory training programs designed to shift workplace culture
  • Waiver of claims and a promise by the employee not to sue for the same conduct
  • Non-disclosure agreements that keep settlements and employer behavior private

Employees with discrimination-based complaints may not trust their employers to live up to their promises. From money remedies for lost wages to in-house policy changes, the terms of an agreement are still only words when negotiations are done. But the resulting settlement agreement turns those promises into an enforceable contract for everyone’s benefit. If either party doesn’t do what they promised in the settlement agreement, the other side’s attorneys can file a federal or state lawsuit for breach of contract.

EEOC Sues to Enforce Pregnancy Discrimination-Based Settlement Agreement

For example, on April 12, 2018, the EEOC announced it would be suing TRU Towing Auto of New Orleans for breaching its pregnancy discrimination-based settlement agreement with the EEOC and Devora Hampton, a former employee. Hampton had brought a claim of pregnancy discrimination against the company last year. On January 31, 2018, the EEOC’s mediation program helped the parties reach a settlement agreement in which TRU promised to pay Hampton $5,500 and make certain other in-house policy changes.

When the ink was dry, TRU refused to pay Hampton, breaching its discrimination-based settlement agreement and reopening the wound caused by its illegal pregnancy discrimination. The EEOC was forced to sue TRU in federal court for specific performance of the mediation settlement agreement, including paying the $5,500. Keith T. Hill, field director for the EEOC’s New Orleans Office said in a statement:

“The EEOC will aggressively pursue enforcement of settlement agreements. … It is crucial to ensure that discrimination victims remain confident that they will receive the relief we have negotiated for them.”

The statement emphasized that mediation only works if everyone involved believes the settlement agreements reached that day will stand up over time. Hill continued:

“Parties who participate in mediation with us should have confidence that any agreement reached during that process cannot be invalidated just because the company no longer wants to honor its obligation.”

Enforcing Settlement Agreement Contracts

When an employer violates a discrimination-based settlement agreement, it can add insult to injury and delay the closure so important to many employees. It can also deny those employees money and other remedies they need to pay bills, find a new position, and move on with their lives.

Enforcing settlement agreement contracts can add months, or even years, to the litigation process. Some employees may think enforcing settlement agreements isn’t worth the time and legal expenses involved. However, most settlement agreements include provisions that say the breaching party must pay for attorney fees and costs related to enforcing the contract. That means you and your employment discrimination attorneys can fight to make the company honor its promises without putting you in debt to do it.

At Eisenberg & Baum, LLP, our employment discrimination attorneys know how to craft and enforce discrimination-based settlement agreements to protect our clients’ interests, and their rights. If you have a complaint for pregnancy discrimination or other illegal workplace conduct, we can help you negotiate the terms of a settlement that works for you, and enforce it if the employer doesn’t live up to its obligations. Contact Eisenberg & Baum, LLP, today to talk to an employment discrimination attorney.

​Religious Objection Doesn’t Overrule Transgender Discrimination Protections, Court Says

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If you decide to come out at work, can your employer fire you for being transgender? Does it matter if your boss is a Christian? The Sixth Circuit Court says no and no. A religious objection doesn’t overrule transgender discrimination protections under Title VII.

In this blog post I will review the Sixth Circuit Court of Appeals decision in EEOC v R.G. & G.R. Harris Funeral Homes, Inc. I will discuss how Title VII protects against gender stereotyping and other forms of transgender discrimination. I will also address when and how a sincerely held religious objection by an employer can affect employee rights.

Funeral Director Fired for Coming Out as Transgender

Aimee Stephens was born Anthony Stephens, a biological male. Before she came out as transgender, Aimee was employed as a funeral director at R.G. & G.R. Harris Funeral Homes, Inc., a trio of funeral homes owned and operated by Thomas Rost. When Aimee decided to transition, she sent a letter to Rost saying that when she returned from a planned vacation she would be representing herself and dressing as a woman at work. She promised to abide by the company’s sex-specific dress code, which required men to wear a suit and tie and women to wear skirts and business jackets.

But Aimee was never given a chance to do so. She was fired just before going on vacation. Rost, a Christian for over sixty-five years, fired her. Rost believes “the Bible teaches that a person’s sex is an immutable God-given gift,” and that he would be “violating God’s commands if [he] were to permit on of [the Funeral Home’s] funeral directors to deny their sex while acting as a representative of [the] organization” or “wear the uniform for female funeral directors while at work.” Rost offered Aimee a severance agreementif she “agreed not to say or do anything”, but Aimee declined, believing Rost’s behavior was illegal transgender discrimination.

Title VII and Transgender Discrimination

Title VII of the Civil Rights Act protects workers against discrimination based on a person’s race, color, religion, sex, or national origin. In most cases, an employer’s illegal motive must be shown through patterns of behavior. But Aimee was able to present direct evidence of discriminatory intent. Rost made an express statement that the reason she was terminated was because she intended to present as a woman at work.

The U.S. Supreme Court, as well as several lower and state courts, have said that transgender discrimination is illegal sex discrimination under Title VII. Employers are not allowed to rely on sex stereotypes when making hiring, firing, promotion, or other employment decisions. Many past cases were based on ways transgender men and women’s conduct does not conform to traditional gender norms. However, in this case, the Sixth Circuit Court of Appeals said coming out was enough. The court ruled:

“Discrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex.”

The court said Title VII means “gender must be irrelevant to employment decisions.” Some other courts have allowed sex stereotyping as long as requiring conformity does not impede that person’s ability to do his or her work. The 6th Circuit said it would not follow those courts’ lead. Instead, it said, “an employer engages in unlawful discrimination even if it expects both biologically male and female employees to conform to certain notions of how each should behave.”

While Aimee intended to present as female at work, the 6th Circuit said even if the company had a gender-neutral dress code she could still be the target of illegal transgender discrimination. The opinion called it “analytically impossible” for a termination based on a person’s transgender status not to be motivated, at least partially, by the employee’s sex.

An Employer’s Religious Objection Doesn’t Overrule Title VII

EEOC v R.G. & G.R. Harris Funeral Homes is also important because it says employers can’t avoid Title VII’s transgender discrimination protections based on the federal Religious Freedom Restoration Act (RFRA). The RFRA says the government cannot enforce a religiously neutral law in a way that “substantially burdens the individual’s religious exercise and is not the least restrictive way to further a compelling government interest.” That means the government, in this case the Equal Employment Opportunity Commission (EEOC), can’t force someone to do something against his or her religion unless it is the least harmful way it can protect a core government interest.

Rost was a Christian who felt “that God has called him to serve grieving people” and “that his purpose in life is to minister to the grieving.” However, the Funeral Home he owned and operated:

  • Was not affiliated with a church
  • Does not include a religious purpose in its articles of incorporation
  • Does not close for Christian holidays
  • Serves clients of all faiths
  • Hires employees of any faith or no faith
  • Does not endorse employees’ beliefs or non-employment-related activities
  • Does not display religious icons
  • Allows employees to wear Jewish head coverings during Jewish funeral services

The first question for the court was whether Aimee was a “ministerial employee” of a religious institution. Clergy and other ministerial employees are protected by the RFRA because their work deals with “internal church discipline, faith, and organization”. Because the Funeral Home wasn’t a religious organization, its funeral directors could not be considered ministers under the RFRA.

The RFRA can protect private employers from claims by the EEOC as well, but only if doing so would “substantially burden a sincere religious exercise”. If Aimee had filed her gender discrimination lawsuit privately, the RFRA would not apply at all, but because the EEOC was involved, the court had to consider whether Rost’s religious objection overruled Aimee’s Title VII transgender discrimination protections.

Even with the EEOC involved, the court said enforcing Title VII’s protections against transgender discrimination did not force the Funeral Home to violate Rost’s faith. Allowing an employee to exercise a different understanding of sex and gender would not substantially burden his professed calling to serve mourners. Rost said his customers would be distracted by the presence of transgender employee, but the court said,

“[W]e hold as a matter of law that a religious claimant cannot rely on customers’ presumed biases to establish a substantial burden under RFRA. . . . we refuse to treat discriminatory policies as essential to Rost’s business — or, by association, his religious exercise.”

The court said tolerating an employee’s understanding of her sex and gender identity is not the same as supporting it, so the RFRA does not overrule Title VII’s transgender discrimination protections. The EEOC has a compelling interest in protecting employees from discrimination at work, and enforcing Title VII is the least restrictive way to do it.

EEOC v R.G. & G.R. Harris Funeral Homes is a powerful tool in the fight against transgender discrimination. It says you can’t be fired for coming out, and your employer’s religious objection can’t overrule transgender discrimination protections. At Eisenberg & Baum, LLP, our employment discrimination attorneys know how to make these cases work for you. If you face transgender discrimination at work or are afraid of coming out, contact Eisenberg & Baum, LLP, today for a free consultation.

Is a Mandatory Retirement Policy Illegal Age Discrimination?

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If you have a milestone birthday approaching, you might be getting anxious about losing your job. Some companies use a mandatory retirement policy to try to limit the age of their work force. But that could be illegal age discrimination, depending on your job.

In this blog post, I will address a recent settlement by the U.S. Equal Employment Opportunity Commission and Professional Endontics, P.C., surrounding the company’s mandatory retirement policy. I will review the federal Age Discrimination in Employment Act (ADEA) and consider whether a mandatory retirement policy is a form of illegal age discrimination.

Older Workers Are Protected Against Age Discrimination

The Age Discrimination in Employment Act (ADEA) protects workers over 40 years old from age discrimination at work. It protects older workers and potential employees from adverse employment decisions based on their age. This can include:

  • Non-Hiring
  • Passing over for a promotion
  • Assigning to “light” duty or less desirable tasks or shifts
  • Firing

The ADEA is one of the many federal civil rights laws enforced by the Equal Employment Opportunity Commission (EEOC). Workers who think they have been the target of age discrimination can file a complaint, with the help of an employment discrimination attorney or on their own. The EEOC will investigate the claim and help facilitate a solution. When that fails, either the EEOC or your private attorney can file suit in federal court.

Is a Mandatory Retirement Policy Illegal Age Discrimination?

Being fired because you are “too old to do your job” may be an obvious form of age discrimination, but can a company impose a mandatory retirement policy that applies uniformly to all employees? That was the issue in EEOC v. Professional Endodontics, P.C., Case No. 4:17-cv-13466. In that lawsuit, the EEOC represented Karen Reurat, an employee of an oral surgery facility in a suburb of Detroit, Michigan. Reurat had worked for Professional Endodontics, P.C., for 37 years, until she was fired just days after her 65th birthday in January 2016. The company had a mandatory retirement policy which required all employees to retire when they hit that milestone birthday.

The EEOC said the policy violated the ADEA by illegally discriminating against employees based on their age. By firing employees explicitly because they had reached age 65, the EEOC said the medical company had committed illegal age discrimination. The EEOC had tried to use its informal conciliation process to resolve the complaint, but eventually had to file suit in the U.S. District Court for the Eastern District of Michigan. Once the litigation got started, the parties agreed to settle for $47,000, together with new anti-discrimination policies and training about the ADEA.

Exceptions When Mandatory Retirement Policies May Be Allowed

Mandatory retirement policies are generally illegal under the ADEA, but there are exceptions:

  • The job includes a Bona Fide Occupational Qualification (BFOQ)
  • Some state judges and elected officials
  • High policy-making positions

Bona Fide Occupational Qualifications are necessary duties of the job that cannot be performed by people above a certain age (usually for safety or efficiency reasons). Common examples are child-acting rolls or safety concerns connected with old-age drivers in public transportation. It is hard for employers to prove BFOQs are truly necessary. They usually turn out to be illegal shortcuts too broad to properly address the true underlying safety concern (such as maintaining a valid driver license).

The exception for high policy-making positions only applies to managers with the authority to hire or fire other employees and supervise at least two subordinates. Individuals in these positions must spend at least 80% of their working time on management and supervision duties (60% in retail or service industries). These top-level employees play a significant role in developing and implementing corporate policy, so they are less likely to create a mandatory retirement policy that works against them without a good reason.

Some states have passed laws legally limiting the age of their elected or appointed officials. Many, including Michigan, where the this settlement was entered, require their judges to retire at age 70, or prohibit judges from seeking reelection after their 70th birthday. In 1991, in Gregory v Ashcroft, 501 U.S. 452 (1991), the U.S. Supreme Court said that mandatory retirement laws, particularly a provision of the Missouri Constitution, were not illegal age discrimination under the ADEA. The Court said that the state’s appointed judges were not “employees” under the ADEA. Instead, they were more like high policy-making executives. The court said that there was a “rational basis” for states to distinguish between judges and other state officials when it came to age restrictions.

Most private employees and government workers are protected against age discrimination in the form of mandatory retirement policies. If your milestone birthday has you worrying about your employment, the employment discrimination attorneys at Eisenberg & Baum, LLP, can help. We will meet with you to review your company’s policy and your options, so you can continue working and retire on your own terms. Contact Eisenberg & Baum, LLP, today for a free consultation.