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.

Does the Equal Pay Act Apply to Charter School Salaries?

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The Equal Pay Act is designed to make sure women receive equal pay for equal work. But income inequality continues to be a problem in workplaces across the country. In some cases, like in non-profit charter schools, teachers may not even know if they are covered. They may ask, “Does the Equal Pay Act apply to charter school salaries?”

In this blog post, I will review the recent complaint in Equal Employment Opportunity Commission vs. The Guidance Charter School, Case No. 2:18-cv-02323. I will explain the federal Equal Pay Act and California Fair Pay Act, which prevent gender discrimination in salaries and compensation. I will also examine whether those laws are affected when the employer is a charter school or other non-profit organization.

The Equal Pay Act Makes Gender-Based Wage Discrimination Illegal

The Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964 work together to prevent gender discrimination at work, and on paychecks nationwide. Title VII makes it illegal to make employment decisions, including setting salaries, wages, raises, bonuses, and other compensation, based on an employee’s sex or gender. The Equal Pay Act makes it easier for employees to prove wage discrimination. It says discrimination happens whenever an employer pays wages at a lower rate than it pays to employees of the opposite sex doing equal work. Differences in pay must be based on a gender-neutral:

  • Seniority system
  • Merit system
  • Quantity or quality of production system
  • Differential system

When wage discrimination is found, the company is not allowed to solve it by reducing the wage of other employees.

Some states have even tighter gender discrimination laws. For example, the California Fair Pay Act, which took effect January 1, 2016, tightened existing equal pay laws by removing the requirement that the comparative employee work in the same establishment and changing “equal work” to “substantially similar work”. This allows employees to sue even if they are working at different locations for the same employer, or their job titles do not precisely match the comparative employee.

EEOC Says Provisions of the Equal Pay Act Apply to Charter School Salaries

The Equal Pay Act applies to public and private employees alike. Whether a person works for a government entity or a private company, he or she can still file a complaint with the Equal Employment Opportunity Commission (EEOC) for wage discrimination. If the EEOC finds a violation of the Equal Pay Act, it will attempt to negotiate with the employer and then either file suit or give the employee a “right to sue” letter. This notice of right to sue allows a worker to hire a private wage discrimination attorney and take the matter to federal court.

Recently, the EEOC took up the case of a charter school employee. The EEOC sued the Guidance Charter School, of Palmdale, California, for violating the Equal Pay Act and Title VII gender discrimination laws. The complaint was filed in the U.S. District Court for the Central District of California (EEOC v. The GuidanceCharter School, Case No. 2:18-cv-02323). The complaint alleges that the charter school paid a female math tutor a lower hourly wage than her male coworker, even though their jobs were entirely interchangeable. The EEOC said the only difference was the employees’ gender. When pre-litigation conciliation settlement failed, the EEOC filed a complaint in federal court seeking back pay and liquidated, compensatory, and punitive damages on behalf of the woman, and an injunction preventing the charter school from discriminating again in the future.

“Ensuring that women receive equal pay for equal work is one of the EEOC’s strategic enforcement priorities,” said Anna Park, regional attorney for the EEOC’s Los Angeles District. “There is no excuse for employers underpaying someone simply because of her gender.”

Non-Profit Status Does Not Affect Equal Pay Requirements

The question of whether the federal or state gender discrimination laws and the Equal Pay Act apply to charter school salaries most often comes from the schools’ non-profit status. Non-profit organizations historically pay their employees less than the same jobs in the private or government sectors. But that does not justify wage discrimination within the organization. Non-profit organizations, like charter schools, may not balance their budget unequally on the backs of their female employees. When they do, as with the Guidance Charter School, the EEOC and private gender discrimination attorneys can hold non-profits accountable under state and federal law.

At Eisenberg & Baum, LLP, our gender discrimination attorneys can help you end wage discrimination within your non-profit organization. We will work with the EEOC or file a complaint for you after you receive a “right to sue” letter, ensuring that you get equal pay for equal work. If you believe that you are being paid less than your counterparts because of your gender, contact Eisenberg & Baum, LLP, today to schedule a free consultation.

Tenure, Sexual Harassment and Bullying on Law School Campuses

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Teacher-and-student relationships are one of the most frequent pairings in the media to portray sexual harassment and bullying. In real life, when a professor or dean of a law school targets his employees and students, even a Title IX complaint often isn’t enough to address the problem. Find out how tenure rules can interfere with civil rights claims for gender discrimination in law schools and universities across the country.

In this blog post, I will review an article by the American Bar Journal, “Why are law deans not fired after investigations find misconduct with women?” I will discuss how sexual harassment and bullying are addressed at colleges and law schools across the country and how tenure can interfere with schools taking appropriate corrective action to address sexual harassment and bullying by staff against employees and students.

3 Law School Deans Resign, But Aren’t Fired, for Sexual Harassment and Bullying

Since 2016, the legal community has been seeing its share of sexual harassment complaints. Judges, partners, and even law professors are being called out for their sexual misconduct toward subordinates, employees, and students. But as the American Bar Journal noted, these complaints often don’t have satisfactory results.

Sexual Harassment Lawsuit at UC Berkeley Law School

In 2015, Dean Sujit Choudhry, of the University of California at Berkeley School of Law, was accused of sexual harassment by a former executive assistant. Tyann Sorrell said that from September 2014 to March 2015, Choudhry kissed her cheeks, hugged her, and rubbed her shoulders and arms, all over her objection. When she went to her supervisors, Sorrell says they didn’t try to stop the behavior, and instead retaliated against her.

Eventually, Sorrell had to sue the university, and Choudhry directly, for sexual harassment under Title IX Education Amendments of 1972. In March 2016, Choudhry resigned, calling the pending lawsuit a “distraction for the law school, the university, and our community.” Students on campus issued a written statement objecting to the law school’s response, saying a 10% salary cut for one year, counseling, and a written apology wasn’t enough, especially when the details were withheld from the student body.

Northern Illinois University Law School Dean Given Research Position After Sexual Harassment Complaints

Last summer, Northern Illinois University investigated sexual harassment complaints against its law school dean, Eric Dannenmaier. Two former employees filed complaints with the NIU Affirmative Action and Equity Compliance Department, saying Dannenmaier asked them intimate details about their love lives and sexual partners and invited them to his home after hours. Sarah Adamski, associate director of investigations for the NIU Affirmative Action and Equity Compliance Department found “enough information to conclude that Dannenmaier’s unwelcomed conduct of a sexual nature was severe and pervasive enough to create a hostile working environment….”

Dannenmaier was placed on administrative leave in February. He resigned on June 21, 2017. But that resignation was more of a reassignment. He continued to work as an off-campus researcher through December 31, 2017, earning a $95,000 salary.

Resignation Turns to Full-Time Employment at Northern Kentucky University

In late 2017, Jeffrey Standen, the dean at Northern Kentucky University’s Chase College of Law, resigned after the school’s Title IX coordinators investigated allegations of sexual harassment and bullying. Three employees – one full-time staff member and two student workers – filed complaints against Standen saying he looked down one employee’s dress, adjusted his crotch in front of them, asked for hugs, and commented on their clothing. They said when they would wear skirts, dresses, or leggings, Standen would ask them to arrange his bookshelves or fix a ceiling vent.

The Title IX investigation into these complaints did not result in enough evidence to support sexual harassment charges. But the report did show Standen had created an “unhealthy culture of fear, intimidation, and bullying” and violated the university’s ethical responsibilities policy. As a result, Standen resigned in December 2017. That resignation was short lived, however. He was offered a full-time faculty position the next year with a salary of nearly $222,000, making him the highest paid professor at the university.

Title IX, Tenure, Sexual Harassment and Bullying

Title IX is the portion of the Education Amendments of 1972 that applies to schools and universities. It is intended to prevent gender discrimination and sexual harassment on campus – including between faculty and other employees. The law requires schools to take reasonable steps to respond to sexual harassment complaints by staff and students alike. Each school must have a non-discrimination policy and a designated compliance officer to respond to complaints that faculty behavior has caused a hostile work or educational environment.

All three law schools described above performed Title IX investigations into the allegations of sexual harassment and bullying by their deans. But even where the investigators found a hostile environment, the harassers stayed on the payroll. When the American Bar Association looked into why the deans were not fired, the answer seemed to rest on the idea of tenure.

Saundra Schuster, an attorney at the NCHERM Group in Pennsylvania who does risk management work with universities told the ABA that there were two reasons why law deans don’t get fired for sexual harassment. First, it would cost more to defend a wrongful termination lawsuit than pay for a year of salary. Second, these are tenured faculty members, and as such are “almost impossible” to fire.

“Being a tenured faculty member is so ingrained in the hearts of faculty, particularly at high-level universities that would have law schools,” she told the ABA

According to Raymond D. Cotton, a partner at Nelson Mullins in Washington, D.C., who represents college administrators, tenure was created to protect professors’ free speech rights. His comments suggested that sexual misconduct was a result of stress the professors feel, rather than any form of power imbalance or culture of complacency. But Jennifer Drobac, a law professor at the University of Indiana’s Robert H. McKinney School of Law who studies sex harassment, says:

“The problem is that most universities don’t have the guts to terminate these people, typically men, who are engaging in this behavior,” Drobac says. “They will often rotate them out of administration and back onto the faculty.”

She takes the position that when tenured professors or deans violate the law by sexually harassing staff or students, they can and should lose their job. This is not a matter of free speech or protecting the controversial ideas of faculty, it is about responding to real complaints about sexual harassment and bullying on America’s law school campuses.

At Eisenberg & Baum, LLP, our sexual harassment attorneys help employees facing gender discrimination on the job, including on campus. If you are face a hostile work environment, we can help you make sure your complaints are heard. Contact Eisenberg & Baum, LLP, today to talk to an employment discrimination attorney.

Do College Job Fairs Promote Age Discrimination?

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Every year, colleges and universities across the country are gear up to connect graduating seniors with employers looking for entry-level employees. But what about those workers who didn’t follow a traditional path to employment? Do college job fairs promote age discrimination?

In this blog post I will explain how the Age Discrimination in Employment Act (ADEA) and the protections available to older workers. I will review Villarreal v R.J. Reynolds, 839 F.3d 958 (2016), and a potential employee’s options and obligations in pursuing an age discrimination claim. I will also discuss how college job fairs and social media ads targeting college grads are being called out as promoting age discrimination.

Age Discrimination in Employment Act Protects Older Workers

The federal Age Discrimination in Employment Act (ADEA) is designed to prevent discrimination against older workers. It prohibits employers from:

  1. Failing to hire or firing someone, or discriminating against him or her in terms of employment because of age
  2. Segregating or classifying an employee in a way that adversely affects his or her status as an employee because of age

Unlike other forms of workplace discrimination, the ADEA doesn’t automatically apply to all workers. To have a claim of age discrimination, an employee or potential worker must be at least 40 years old. It other words, it is not illegal to discriminate against a worker because he or she is too young, only too old.

An Aging Workforce Raises Hiring Discrimination Issues

The average worker is getting older. More people age 65 and over are staying on the job — 18.8% in 2016compared to 12.8% in 2000. For those older adults without stable employment, that can often create fear of age discrimination. The EEOC found that in 2016, 65% of older workers believed their age was an obstacle to new employment. The agency received 20,857 claims of age discrimination that year, and that number is likely to increase as the average age of workers continues to rise.

College Job Fairs and Targeted Social Media Ads Raise Age Discrimination Concerns

The Equal Employment Opportunity Commission and other civil rights advocates have begun questioning whether the many common employer practices cross the line into age discrimination. Recruitment efforts like college job fairs and targeted social media campaigns restrict access to job postings and raise questions of access and discriminatory employment practices.

Companies coordinate with universities to hold meet and greets and conduct interviews that only their students can attend. Facebook allows employers to pay for “sponsored posts” that target particular demographics, limiting people who will see the post to, for example ages 18-24. But is that illegal age discrimination? The colleges and Facebook of course say it isn’t. After all, there is nothing prohibiting older adults from attending college. Just because a sponsored post or Facebook ad is targeted doesn’t mean it can’t be shared with older workers. But is that enough to defeat an age discrimination claim?

Villarreal v R.J. Reynolds and the Disparate Impact theory of Age Discrimination

There are two ways for potential plaintiffs to claim age discrimination happened:

  1. Disparate treatment says the plaintiff him or herself was treated differently because of his or her age
  2. Disparate impact says that an employer’s conduct indirectly affected an employee’s status.

Claims against college job fairs and social media campaigns generally fall in the second category because they are based on a theory that the older person lacked access to the same jobs. But in Villarreal v R.J. Reynolds, the Eleventh Circuit Court of Appeals said that only current and former employees could use a disparate impact theory of age discrimination.

Richard Villarreal applied to work as a territory manager at R.J. Reynolds, through its placement contractor. He was 49 at the time. The placement description targeted a candidate “2-3 years out of college” who “adjusts easily to changes”. The contractor was warned to “stay away from” applicants with 8-10 years in sales. Villarreal said that these criteria caused him to miss out on the job opportunity, and the 5 other times he applied to the company. His attorneys argued that the placement description had a disparate impact on older workers who didn’t have access to the jobs.

The distinction between who can claim disparate treatment and disparate impact came from the statute itself. In another section, the ADEA applies to conduct that would affect a person’s “status as an employee or as an applicant for employment”. But when it comes to disparate impact, the law only applies to conduct “adversely affect[ing] his status as an employee.” According to the Court of Appeals, a potential hire doesn’t have a status as an employee, so Mr. Villareal could not sue under a disparate impact theory.

The U.S. Supreme Court denied a request to review the decision. That means that potential workers claiming that recruitment efforts are illegal age discrimination will have to demonstrate disparate treatment, not just a disparate impact. For college job fairs, that will require a showing that an older potential worker was turned away or refused consideration, rather than simply showing a statistical probability that the tool recruits younger workers. The question of age-restricted social media posts could be stronger, but whether future plaintiffs will be able to demonstrate disparate treatment by social media companies or recruiters remains to be seen.

At Eisenberg & Baum, LLP, our employment discrimination attorneys we understand the realities of age discrimination facing older workers. When more senior job-seekers are passed over from jobs, we can help them investigate the circumstances, protect their interests, and file complaints with the EEOC or in federal court. Contact Eisenberg & Baum, LLP, today for a free consultation.

EEOC Reconvenes Expert Task Force Against Workplace Sexual Harassment

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The #MeToo and #TimesUp movements have drawn the nation’s attention to the prevalence of workplace sexual harassment. Now the Equal Employment Opportunity Commission (EEOC) has taken notice. It has reconvened its expert task force, first formed in 2015, to develop strategies to fight back against workplace sexual harassment.

In this blog post, I will discuss the work of the EEOC’s Select Task Force on the Study of Harassment in the Workplace. I will review the laws protecting employees from discrimination and harassment at work, and I will discuss previous actions by the task force to prevent workplace sexual harassment.

Workplace Sexual Harassment and Gender Discrimination Account for Nearly 1/3 of EEOC Complaints

Workplace sexual harassment and gender discrimination have been against federal law since Congress passed Title VII of the Civil Rights Act of 1964. The law make it illegal for employers to make employment decisions based on a person’s sex or gender. When unwanted sexual advances occur in the workplace, the law says employers are required to take reasonable steps to stop and correct the conduct.

But simply having these laws on the books does not ensure a safe space for workers of all genders. That requires diligent enforcement. In 2017, the EEOC received 25,605 complaints related to sexual harassment and gender discrimination — over 30% of all the agency’s cases. That percentage has been consistent since 1997, even as the total number of complaints has varied over time.

2015 Task Force Asked How to Enforce National Anti-Discrimination Laws

In 2015, in response to the challenges in enforcing anti-discrimination laws and preventing workplace sexual harassment, the EEOC put together a Select Task Force on the Study of Harassment in the Workplace. The Select Task Force was chaired by EEOC Commissioner Chai Feldblum and current Acting EEOC Chair Victoria A. Lipnic. Over the course of 18 months, this 16-member panel received testimony from over 30 witnesses and numerous public comments. Insights came from across the country, including testimony from social scientists, sociologists, psychologists, investigators, workplace trainers, lawyers, employers, and employee advocates. At the end of the investigation, the Select Task Force released its findings:

  • Workplace harassment remain a persistent problem
  • Three out of four victims of workplace sexual harassment don’t file a formal report
  • Businesses and workers benefit from preventing harassment, instead of simply avoiding litigation
  • Anti-harassment initiatives must start at the top and include accountability for management
  • Training needs to be focused on workplace culture and be tailored to each workplace
  • “Bystander intervention” and “civility training” methods may work better than other training alternatives
  • A nationwide “It’s On Us” initiative may be necessary to empower the victims of harassment

#MeToo and #TimesUp Movements Raise National Awareness

As it turned out, that nationwide push to for change in workplace culture didn’t happen because of a government-funded initiative. Instead, it came from social media. In late 2017, the hashtags #MeToo and #TimesUp filled Twitter, Facebook, and other social media platforms with the stories of sexual harassment survivors. They called for change in some of the biggest companies in the country, and in the federal government. And they drew attention to the long-buried truth that workplace sexual harassment can happen in any industry, and at any level within the corporate structure.

EEOC Reconvenes Its Special Task Force in Response to Public Demand

The EEOC responded to the public outcry for accountability by announcing that the Select Task Force on the Study of Harassment in the Workplace would be coming together again on June 11, 2018. The meeting was called “Transforming #MeToo into Harassment-Free Workplaces” and was open to the public. EEOC Commissioner Chai Feldblum said:

“Our challenge is to use this #MeToo moment well. We have a road map given the work we have done at the EEOC. We have the attention and commitment of the range of different actors in society that we need. Together, we can channel that energy to create significant and sustainable change.”

The meeting brought together 8 panelists — all women — who spoke on different aspects of the problem, as well as potential solutions:

  • Elizabeth Tippett, of the University of Oregon School of Law, addressed legal issues and warned against responding solely to sexual harassment in the legal sense. She said “In doing so, [state legislators and employers] risk laying a foundation for the next crisis, whether it involves other forms of harassment, or discrimination and retaliation.”
  • Debra Katz, of Katz, Marshall and Banks, showed how legal defenses and loopholes within Title VII and state laws allow workplace sexual harassment to continue, at great cost to the individuals facing it on the job.
  • Kathleen McKenna, of Proskauer Rose, who represents employers, spoke about the use of arbitrationand non-disclosure agreements to reduce litigation of sexual harassment complaints.
  • Suzanne Hultin, with the National Conference of State Legislatures, talked about the legislative efforts at the state level to move “beyond federal regulations to prevent workplace sexual harassment.”
  • Jill Geisler, of the Newseum’s Freedom Forum Institute, described the Power Shift Project being used by media organizations and newsrooms to address sexual misconduct.
  • Kasey Nalls, of the union UNITEHERE, described the hospitality industry’s “Hands Off Pants On” campaign to protect hotel workers from sexual harassment.
  • Erin Wade from the restaurant Homeroom, demonstrated the color-coded alert system they developed for wait staff and managers to address harassing conduct by customers and create a safe workplace for staff.
  • Jess Ladd, of the non-profit Callisto, explained the online reporting and documentation platform her organization had developed to match victims of similar sexual harassment incidents together and connect them with legal advocates.
  • Lisa Gelobter, of tEQuitable, described her company’s independent platform to proactively address issues of bias, discrimination and harassment at work.

The Task Force also heard from other legal scholars and attorneys, and from an unnamed panelist who discussed strategies for employers and unions to promote harassment-free workplaces. All the panelists provided written statements, which are available on the EEOC’s website.

If the work done by the Special Task Force in 2015 is any indication, it may be some time before the public sees a result from the meeting and the witnesses’ testimony. But the hope is that by meeting publicly, and publicizing the witnesses’ statements, employers, unions, and employee advocates can start pushing for changes now that could prevent workplace sexual harassment in the future.

At Eisenberg & Baum, LLP, our experienced gender discrimination and sexual harassment attorneys have decades of experience protecting the civil rights of women, minorities, and workers facing workplace sexual harassment. We use informal negotiation, arbitration, and traditional Title VII litigation to advocate for innovative prevention strategies to protect our clients and make their offices and work sites better places to work. Contact us to schedule a consultation.