Can a White Man Face Workplace Discrimination for Socially Conservative Views?

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Most employment discrimination cases involve women, African Americans, or other minorities. But in the wake of social pressure toward diversity and inclusion, some are wondering if perceived left-leaning companies like Google have gone too far. Are efforts to diversify the office crossing the line into illegal workplace discrimination for socially conservative views? Are white men becoming the targets of discrimination and harassment?

In this blog post I will discuss the lawsuit filed by engineer James Damore against Google for alleged workplace discrimination against white men with perceived socially conservative views. I will explain how Title VII is applied in cases of discrimination against members of the majority and whether holding allegedly harmful gender stereotypes is a legal basis for firing.

Gender & Race Disparity in STEM Lead to Diversity Drives at Google

The tech industry has a problem with diversity. In 2017, Google reported its workforce was 69% male and 56% white. While Asian Americans are over-represented compared to the population as a whole, African Americans accounted for only 2% of the company’s workforce.

Among those who do get hired, minorities within STEM (science, technology, engineering & math) fields are far more likely to report discrimination than their white male counterparts. According to a recent Pew Research poll, 50% of women in STEM report experiencing gender-related discrimination at work. That number rises to 62% of self-identified black workers.

In the face of this reality, and media reports about workplace discrimination in the tech industry, Google committed to increasing diversity and training its employees about implicit bias. These efforts were designed to reduce workplace discrimination and increase diversity across the company.

White Male Engineer Says Google’s Diversity Drive Goes Too Far

After attending one of Google’s diversity trainings in August 2017, Engineer James Damore decided to voice his disagreement with the policy on the company’s internal discussion board. The 10-page memo, “Google’s Ideological Echo Chamber” criticized the company’s efforts to increase diversity and claimed that women are biologically less able to work in the industry. The post created an uproar within the company, even causing the CEO to cut short a trip abroad to deal with the fall out. Google terminated Damore for violating policies through the post.

Now Danmore, and co-Plaintiff David Gudeman who left Google in 2016, say the company’s diversity policy “goes to extreme–and illegal– lengths to encourage hiring managers to take protected categories such as race and/or gender into consideration as determinative hiring factors, to the detriment of Caucasian and male employees and potential employees.” In other words, in its attempt to prevent gender and racial discrimination against minorities, Danmore says Google committed the same wrong against members of the majority.

Are White Males Protected Against Workplace Discrimination?

Title VII of the Civil Rights Act makes it illegal for employers to make hiring decisions based on a worker or potential employee’s protected traits. The law protects against discrimination based on:

  • Race or color
  • Sex or gender
  • Religion
  • National origin

Age and disability are also protected traits under other federal civil rights laws. Title VII applies no matter which side of the racial or gender divide the employee sits. Members of majority classes like white men can file Title VII claims with the Equal Employment Opportunity Commission (EEOC) or in federal court, just the same as minority class members.

These lawsuits are often called “reverse discrimination”. They include cases where particular workers are singled out for belonging to the majority, as well as class actions that claim diversity actions adversely affect the rights of the majority. For example, on two separate occasions, the U.S. Supreme Court has considered “reverse discrimination” claims that affirmative action policies kept white students from attending their universities of choice.

Reverse discrimination claims are not easily proven. Plaintiffs like Danmore and Gudeman must prove that workers of a different race or sex were treated more favorably because of that trait. They generally must also provide proof that the employer discriminates against historically privileged groups, and that adverse employment decisions were not based on other, conduct by the Plaintiffs.

Workplace Discrimination for Socially Conservative Views?

Danmore and Gudeman have another challenge ahead of them: their allegations are based less on the fact that they are white men and more on the idea that they faced workplace discrimination for socially conservative views. In other words, it wasn’t that Danmore himself was male, but that he felt women should be treated differently because of perceived biological differences. His attorney, Harmeet Dhillon, told the USA Today: “Currently in tech companies ‘it’s okay to disparage, smear, belittle or discriminate against conservatives and white men. That’s not acceptable.”

But political ideology is not a protected trait. While Danmore had a Constitutional right to express his political views in a public space, his private employer was not required to make space for his speech on the job. Danmore chose to use Google’s internal online bulletin boards and email lists to express his socially conservative views, rather than a public forum like Google+. All the company will need to do to defend its decision is show it terminated Danmore for violating lawful workplace policies against disrupting internal operations.

To be successful as a class action against reverse discrimination, Danmore and Gudeman will also have to demonstrate they were targeted because they were white, male, or conservative. Given the company’s hiring statistics, and the fact that it is simultaneously defending an Equal Pay Act lawsuit by female employees, that will be an uphill battle.

It isn’t impossible to to prove workplace discrimination for socially conservative views, particularly if those views are premised on a sincerely held religious belief. But given what is publicly known about the company and its hiring practices, Danmore’s efforts to fight back against Google’s diversity efforts seems unlikely to succeed.

At Eisenberg & Baum, LLP, our experienced employment discrimination attorneys know how to work with Title VII and other civil rights laws to protect any worker facing a hostile work environment. We work with members of all different protected classes, including white males. If you have faced workplace discrimination for socially conservative views, we will meet with you to review your case and advise you of your options, and your chance at success. Contact us today to schedule a free initial consultation and get an honest assessment of your case.

Religious Discrimination Against Muslim Women Sparks Lawsuit Against Airline Support Company

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Religiously observant Muslim women often face discrimination because their modest dress sets them apart. When religious discrimination against Muslim women hit an airline support company, the Equal Employment Opportunity Commission (EEOC) stepped in and filed a lawsuit to protect their right to religious accommodations.

In this blog post, I will review the complaint in EEOC v. Aviation Port Services, Inc., Civil Action No. 1:18-cv-10909, which involves religious discrimination against Muslim women. I will discuss how Title VII applies to religion and requests for religious accommodations, and what employees can do if they face wrongful termination for their faith.

Airline Support Company Denies Muslim Women Religious Accommodations

Airline personnel have a very specific dress code. Aviation Port Services provides stewards, stewardesses and other staff to airlines from its location in Boston, Massachusetts. The company dress code required women who worked as passenger service agents to wear company-provided pants or knee-length skirts. However, the company employed six Muslim women whose religious practices included wearing modest dress. These women had previously been allowed a religious accommodation to wear long skirts while working, instead of the knee-length skirts or form-fitting pants.

But in late 2016, Aviation Port Services told these women that they would no longer be allowed to wear their religiously observant clothing. They again requested religious accommodation and objected to the change in policy. Then in January 2017, all six women were fired for not complying with the company’s uniform policy.

Title VII Prevents Religious Discrimination and Protects Religious Accommodations

Religious discrimination is illegal under Title VII of the Civil Rights Act of 1964. When a person’s sincerely held religious belief conflicts with company policy, that person is entitled to request religious accommodations. If the employer can make a reasonable accommodation without creating an undue hardship on the company’s business, Title VII requires it to do so. The law, like every state and federal anti-discrimination law, prevents employers from firing an employee in retaliation for filing a request for religious accommodation or complaining about religious discrimination at work.

When the Equal Employment Opportunity Commission (EEOC) reviewed the Muslim women’s religious discrimination complaints, it found reasonable cause to believe that Aviation Port Services had violated Title VII by removing their employees’ religious accommodations and then terminating their employment when they complained about the change in policy. On May 7, 2018, it filed a complaint on behalf of the six Muslim employees in federal court in the United States District Court for the District of Massachusetts. EEOC New York Regional Attorney Jeffrey Burstein said in a statement:

“Employers have an affirmative obligation under federal law to make reasonable modifications to company policies, such as dress codes, to accommodate their employees’ religious practices. . . . Despite this obligation, Aviation Port Services simply refused to allow these women to continue working in attire consistent with their religious beliefs.”

Fighting Back Against Religious Discrimination Against Muslim Women at Work

When an employer insists on a discriminatory policy, it can force observant women to choose between their religion and their employment. But as EEOC New York District Director Kevin Berry said:

“Federal law is clear: employers cannot refuse to provide a religious accommodation barring an undue hardship, and employees have a right to oppose discriminatory practices without fear of losing their jobs.”

Fighting back against religious discrimination against Muslim women can include practical changes as well as money damages. Depending on the nature of the discrimination, and employees’ personal priorities, an employment discrimination attorney and the EEOC can help them seek:

  • Changes to company policy and practices
  • Religious accommodations that are not unduly burdensome on employers
  • Court ordered bars on religious discrimination at work
  • Anti-discrimination training for managers, supervisors, and coworkers
  • Back pay for employees terminated for not complying with policies that violate their religious convictions
  • Money damages for expenses related to finding replacement employment
  • Punitive damages for malicious treatment of religious minority employees
  • Attorney fees and costs related to litigation

Religious discrimination against Muslim women often forces them to choose between their sincerely held religious beliefs and company dress codes and other policies. When an employer refuses to provide reasonable religious accommodations, a skilled employment discrimination attorney can advocate on your behalf with the company, at the EEOC, and in state and federal court. You don’t have to tolerate religious discrimination at work. At Eisenberg & Baum, LLP, our employment discrimination attorneys know what reasonable religious accommodations look like, and what it means to our clients when those accommodations are denied. Contact us today to explore your options and find solutions that respect your religious beliefs.

International Gender Pay Gap Revealed by British Reporting Requirements

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Finding out you are not receiving equal pay can be tough. Some businesses even make rules against employees discussing their income. Now some employees may have a little easier a time investigating their wages, since new British reporting requirements have gone into effect. And the reports show an international gender pay gap across industries, and companies.

In this blog post, I will review a new British law requiring public companies to publish gender pay gap data. I will talk about how different global companies are responding to the law and how they are seeking to close the international gender pay gap. I will also discuss how a U.S. employee of an international company can use this information in an Equal Pay Act complaint.

British Reporting Requirements Reveal Gender Pay Gaps at Large Companies

It isn’t a surprise that British businesses and international companies pay men more than women. This has been a statistical truth for years. But a new British reporting requirement means companies operating in Britain with 250 employees or more must publish salary differences between men and women each year. They must also publish differences in bonuses paid to men and women, and the proportion of men and women who receive those bonuses.

The purpose of the new reporting requirements is to create transparency about domestic and international gender pay gap issues, and to shame companies into moving toward equal pay. Andrew Bazeley, a policy manager at the British women’s rights organization the Fawcett Society, told the New York Times:

“This is a game-changer. . . . It will force businesses to think about the gender pay gap in ways they might not have before.”

Why Women Face an International Gender Pay Gap

There are many factors that contribute to the international gender pay gap. At most companies, men hold the majority of high-level positions. Women are more likely than men to have employment breaks as they raise children. They are also more likely to accept flexible or part-time work (often for less pay) to balance the demands of work and family, and less likely to negotiate for raises or a higher starting pay.

There are also societal pressures that push women and girls away from careers in science or technology, as well as jobs in sales and physical labor. Myfanwy Edwards, a programmer and engineer at the Japanese technology company Fujitsu spends time at universities, trying to recruit more women into the pipeline for high-paying jobs. Still, in 2017, only 16 percent of Britain’s STEM graduates were women (science, technology, engineering, and math).

But at least part of the international gender pay gap is the result of discrimination. Women are paid less than their male counterparts for similar work, they are passed over for promotion, and are not hired for typically male positions even when they are qualified.

Equal Pay in the U.S.A.

Here in the U.S.A., state and federal laws prohibit gender discrimination at work, and in employees’ pay checks. Title VII of the civil rights act prevents gender discrimination in hiring decisions including hiring, firing, promotions, and assignments. The Equal Pay Act prevents employers from paying men more than women for the same work.

But learning about the gender pay gap in the U.S. isn’t always easy. In 2016, the Equal Employment Opportunity Commission and the Department of Labor had announced something similar to the British reporting requirements. The agencies had imposed regulations that would require employers with at least 100 workers to report aggregated, anonymous information about employee pay based on sex, race, and ethnicity. But before the regulations could take effect, in August 2017, the Trump administration cancelled the regulations, saying they would be too burdensome on employers.

For the employees of international companies operating in Britain, Iceland, Germany, or other countries requiring publication of gender pay gaps, the regulations provide a first step to proving gender and wage discrimination. The aggregated statistics required under the regulation won’t be enough to show violations of Title VII or the Equal Pay Act on their own. But they do provide employees, and agencies like the EEOC a place to start to investigate gender discrimination at work, and in pay.

At Eisenberg & Baum, LLP, our employment discrimination attorneys can use statistics and other evidence to prove that a company’s international gender pay gap has resulted in Equal Pay Act violations here at home. If you believe you are being paid less than your coworkers because of your gender, we will help you review the facts and file a complaint with the EEOC, or in federal or state court. Contact our gender discrimination attorneys today to start fighting for equal pay.

What Does a Reasonable Response to Discrimination Complaints Look Like?

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If you have filed a discrimination complaint at work, it can sometimes feel like your employer is ignoring you, or isn’t taking you seriously. And it might be true. How can you know if your employer is doing enough to prevent discrimination or sexual harassment at work? What does a reasonable response to discrimination complaints look like?

In this blog post I will discuss an employer’s responsibility to investigate and correct discrimination or harassment at work. I will explain what an employee should do to bring a hostile work environment to his or her employer’s attention, and what the employer’s reasonable response to discrimination complaints might look like.

Your Employer Has a Duty to Reasonably Respond to Discrimination Complaints

Title VII of the Civil Rights Act says that discrimination and harassment are illegal if they are based on:

  • Race
  • Color
  • Religion
  • Sex (or gender)
  • National origin

Other federal laws prohibit discrimination based on age, pregnancy, genetic information, and other “protected traits”.

But just because something is illegal doesn’t mean it doesn’t happen. An employer can be held directly responsible for discriminatory employment decisions — like hiring, firing, pay, promotions, or shift assignments — and some conduct of managers or supervisors. However, when discrimination complaints are based on a “hostile work environment” created by coworkers or customers, it is up to the employee to show that the employer failed to reasonably respond to discrimination complaints.

What Employees Should Do to Register Discrimination Complaints

To start with, before an employer has a duty to respond, it must know the discriminatory behavior is happening. An employer can be assumed to know about hiring and firing decisions. But especially in larger companies, your HR department may not know about what happens in the office or on the factory floor. When that includes discrimination, employees should:

  • Verbally object to the behavior on the spot.
  • Document what happened, who did it, who saw it, and how it made you feel. Don’t keep the record on your work computer.
  • Follow your office’s complaint procedure if it has one.
  • Talk to your union representative if you have one and follow the union’s grievance process.
  • If there is no formal procedure, send a written, dated discrimination complaint to your supervisor (or his or her supervisor if he or she is involved). Keep a copy for yourself.

In many cases, if you don’t follow your company’s complaints procedure, it can affect your employer’s responsibility to reasonably respond to discrimination complaints. If you have questions about what you need to do to register your issue, bring your employee manual to talk to an employment discrimination attorney soon after the incident so you don’t miss any deadlines.

What an Employer’s Reasonable Response to Discrimination Complaints Looks Like

A reasonable response to discrimination complaints depends on the nature of those complaints, the size of the company, what happened, and who is involved. No matter how big or small the company, during the investigation, you should expect:

  • Prompt, thorough, and impartial investigation by someone other than those involved in the complaint
  • Confidential interviews with the employee complaining, the harasser, and any witnesses
  • Investigation of the complainant and harasser’s work history for previous incidents
  • Limited disclosure of information in the complaint to avoid retaliation
  • Separating the complaining employee and the harasser while the investigation is ongoing, if possible

A reasonable investigation of a discrimination complaint does take time. It could take days or even weeks for your employer to interview everyone and decide the appropriate response. Some forms of discipline may also be invisible to the complainant. However, if you haven’t heard anything after a few weeks, it is perfectly appropriate to follow up with your employer.

If your employer’s investigation does reveal that discrimination or harassment occurred, it is legally required to take immediate measures to stop the harassment and make sure it doesn’t happen again. What that response looks like will depend on what happened, and how serious the offense. A reasonable response to discrimination complaints could include:

  • Adopting anti-harassment policies
  • Imposing mandatory anti-discrimination training on supervisors or all employees
  • Removing graffiti, posters, photos, or other offensive imagery or statements
  • Correcting negative reviews, absences, or other marks against the victim of harassment or discrimination
  • Adjust shifts or assignments to separate harasser and victim in a way that does not punish the victim
  • Suspend or fire the harasser

If your employer’s response to your discrimination complaint isn’t reasonable, you may be able to file a complaint with the Equal Employment Opportunity Commission or in federal court. But deciding if the response was reasonable isn’t always easy. You may not have all the information, or your employer may not want to tell you how it reached its decision.

At Eisenberg & Baum, LLP, our sexual harassment attorneys know what a reasonable response to discrimination complaints looks like. We will meet with you to review your situation and your options, so you can be free of harassment at work. Contact us today to schedule a free consultation.

U.S. Supreme Court Okays Mandatory Employment Arbitration

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The U.S. Supreme Court has issued an opinion that could affect employee rights nationwide. The decision in Epic Systems Corp v Lewis allows employers to use mandatory employment arbitration clauses in their contracts, cutting employees off from class actions and other public legal proceedings. Even while publicity around sexual harassment and the #MeToo movement are showing the importance of transparency in the litigation process, this Supreme Court decision allows employers to prioritize privacy over their workers’ rights.

In this blog post I will discuss the recent United States Supreme Court decision, Epic Systems Corp v Lewis (Epic Systems). I will explain how mandatory employment arbitration works, and what the court’s decision means to employees hoping to join together to end employment discrimination or other workplace abuses.

Employees Use Class Actions to Address Problems at Work

Epic Systems was the result employees at three separate companies coming together to address problems at work, and in their paychecks. The lawsuits, which were consolidated for consideration by the Supreme Court, included Ernst & Loung LLP v Morris, where a junior accountant said his employer had violated the Fair Labor Standards Act by not paying for overtime to him, and a class of employees under similar circumstances. But Mr. Morris’s employment contract, and the contracts in the other consolidated cases, included a mandatory employment arbitration provision. It said that any employment disputes, including disagreements about overtime pay, had to be taken to independent, private arbitration, rather than federal court.

The U.S. Supreme Court was asked to determine if the employers were legally allowed to use mandatory employment arbitration to avoid public litigation by classes of employees. Because these contracts required each dispute to be resolved separately, they had the effect of cutting off employees from the ability to sign on to class action lawsuits to protect their rights at work.

U.S. Supreme Court Says Arbitration Act Okays Mandatory Employment Arbitration

The legal question pit two federal statutes against one another. The Arbitration Act requires courts to enforce agreements to use arbitration in place of traditional legal processes to resolve disputes. The Fair Labor Standards Act (FLSA) prohibits employers from interfering with workers’ efforts to engage in “concerted activities” to protect their rights at work. Traditionally, the FLSA protects workers’ right to unionize, negotiate contracts, and come together to address problems at work. The National Labor Relations Board under the Obama Administration had said this necessarily included workers’ right to use class action lawsuits to enforce wage and hour laws and other employment problems.

But the Supreme Court disagreed. In a split decision, 5 of the 9 justices ruled that the federal Arbitration Act overruled the FSLA when it came to mandatory employment arbitration. The Court said “concerted activities” was only intended to include traditional labor union activities. The Court would not extend those protections to include class action or other joint efforts to correct problems at work. If employers and employees agreed to mandatory employment arbitration in their contracts, the Court said judges were required to enforce those agreements.

Justice Ginsberg Dissents to Protect Workers’ Rights

Justice Ruth Bader Ginsberg and the Court’s three other more liberal justices joined in a powerful dissent that Justice Ginsberg read from the bench — a sign of how important she felt the issue was. She called the majority’s decision an “egregious wrong” that will cause “huge under-enforcement” of employment laws. Justice Ginsberg wrote that mandatory employment arbitration agreements have skyrocketed from only 2% of non-union contracts in 1992 to 54% today. That means 23% of non-union employees have entered contracts that give up their right to class action protections.

In reviewing the opinion, Brian T. Fitzpatrick, a law professor at Vanderbilt University, told the New York Times:

“[Justice Gorsuch] appears to have put his cards on the table as firmly in favor of allowing class actions to be stamped out through arbitration agreements. … [I]t is only a matter of time until the most powerful device to hold corporations accountable for their misdeeds is lost altogether.”

Class Action Lawsuits Protect Against Workplace Abuses, Including Sexual Harassment

The Epic Systems decision has the potential to affect far more than disputes about overtime pay. The Equal Employment Opportunity Commission (EEOC) and private employment discrimination attorneys often use class actions to address violations of Title VII of the Civil Rights Act and the Equal Pay Act. By bringing all of an employer’s similarly situated workers together in a single lawsuit, employment lawyers can build stronger cases for hostile work environments in sexual harassment cases, or show that women are paid less simply for being women. As Justice Ginsberg explained,

“By joining hands in litigation, workers can spread the costs of litigation and reduce the risk of employer retaliation.”

However, now that the U.S. Supreme Court has approved mandatory employment arbitration, employers may be able to use their workers’ contracts to force issues of sexual harassment, discrimination, and unfair wages into private arbitration and away from EEOC or class action enforcement. Employers, in turn, may run the risk of small-scale violations of federal employment laws, knowing that their employees have contracted away their ability to come together to stop them.

The Epic Systems decision could have long-lasting effects on employee rights, and their ability to enforce those rights in court. Now that the U.S. Supreme Court has approved the use of mandatory employment arbitration agreements, more workers are going to find their employment complaints addressed behind closed doors, rather than open court.

At Eisenberg & Baum, LLP, we have employment discrimination attorneys who know how to fight for workers’ rights in the courthouse, and in private arbitration. We will meet with you to review your employment contract and develop a strategy to protect your rights. Contact us today to schedule a free consultation.

Do Civil Rights Laws Protect Against Genderqueer Discrimination at Work?

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For generations, gender in the workplace has been black and white, male and female. But as the cultural understanding of gender have grown more technicolor, the laws protecting against gender discrimination and sexual harassment haven’t always kept up. For trans* workers, intersex, and those identifying as gender non-binary or non-conforming, the question may be whether existing civil rights laws protect against genderqueer discrimination at work at all.

In this blog post, I will explore how gender discrimination laws apply to people of varying gender identities, including those identifying as non-binary or genderqueer. I will discuss how New York City’s Human Rights Law differs from the federal Civil Rights Act, and what employers can do to protect their genderqueer employees from harassment or unfair treatment at work.

Keeping Up With Evolving Gender Terminology

For those outside the LGBTQIA community, it can seem that there are new categories every day. It can be difficult to know how to refer to gender non-conforming employees. Here is a baseline to help inform the conversation:

  • Sex: A combination of biological, anatomical, or chromosomal characteristics that are used to assign gender. Most children are designated male or female at birth based on their apparent physical anatomy.
  • Gender: A person’s actual or perceived sex, generally determined through appearance, dress, self-image, identity, or behavior. This may or may not coincide with the sex assigned at birth.
  • Cisgender: A person who self-identifies with the gender and biological sex assigned at birth.
  • Transgender: A person who self-identifies with a gender or expresses a gender other than that assigned at birth. This term can sometimes be used as a broad category that includes a variety of genderqueer identities and expressions.
  • Transsexual: A medical term indicating that a person’s physical anatomy has been altered to correlate with that person’s self-identified gender. This is sometimes referred to as MTF (male to female) or FTM (female to male).
  • Intersex: A medical term indicating that a person’s anatomical or chromosomal markers are not unambiguously male or female.
  • Gender Identity: A person’s deeply held sense of gender, whether maleness, femaleness, somewhere in between, or something else not on the spectrum. This is distinct from sexual orientation.
  • Gender Expression: The outward facing demonstration of a person’s gender including, for example, name, pronouns, clothing, hairstyle, makeup, behavior, vocalizations, or body characteristics. This may or may not conform to societal gender stereotypes or the person’s sex.
  • Sexual Orientation: A person’s attraction to others of one or more sex or gender for romantic or intimate purposes.
  • Gender Non-Conforming: An identity or expression that differs from traditional gender-based stereotypes. A person identifying as gender non-conforming may or may not also identify as transgender.
  • Gender Non-Binary: An identity or expression that identifies outside the spectrum of maleness and femaleness. This may include aspects of multiple genders.
  • Genderqueer or Trans*: References to the broad category of transgender and gender non-conforming individuals while respecting the differences within the category.

No list can be exhaustive. If someone uses a term that is unfamiliar, the best thing to do is to ask them, politely, what it means to them. The same is true for personal pronouns. While many Trans* individuals use he/him/his or she/her/hers, others prefer non-gendered pronouns such as they/they/theirs or ze/hir. A person’s preferred pronouns may or may not be readily determined by their gender expression, so it’s better, and more respectful, to ask.

Genderqueer Discrimination and the Federal Civil Rights Act

Title VII of the federal Civil Rights Act protects against gender discrimination and sexual harassment at work. It does not explicitly protect against discrimination based on gender expression or genderqueer identity. However, the Supreme Court, and a variety of federal circuit courts across the country, have held that discriminating against a person because they do not conform with someone else’s expectations of gender is illegal. Workplace harassment based on a person’s deviation from a cultural gender norm is also illegal. Most of the cases on these issues included transgender individuals. However, the same arguments apply to genderqueer discrimination in the workplace.

New York City Sets the Standard Against Genderqueer Discrimination

The federal government may have left it to the courts to protect genderqueer workers, but some state and local governments have pushed ahead with laws of their own. New York City, in particular, has passed the Transgender Rights Bill which expanded gender-based protections of the local Human Rights Law (NYCHRL) to include the Trans* community. The law prohibits discrimination in employment, public accommodation, and housing on the basis of a broad definition of gender:

“[Gender is defined as a person’s] actual or perceived sex and shall also include a person’s gender identity, self-image, appearance, behavior or expression, whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the legal sex assigned to that person at birth.”

The NYC government website explicitly states this includes intersex individuals. Gender discrimination under the NYCHRL occurs whenever a person is treated “less well than others” because of their broadly described gender. This means that, in New York City, genderqueer discrimination is illegal when it comes to hiring, firing, promotion, shift assignments, benefits, or any other employment discrimination. If an employer is aware of genderqueer harassment, it must take reasonable steps to protect its Trans* employees, which may include firing the harasser. For example, the NYCHRL makes it illegal genderqueer discrimination to refuse to use a person’s preferred name or pronouns.

Employer Best Practices to Avoid Gender Stereotyping and Bias Discrimination

It can be difficult for employers to keep up with the evolving standards around gender discrimination. Even though the federal law does not explicitly require companies to shield their employees from discrimination based on gender expression or identity, choosing to skirt the line can result in complaints to the Equal Employment Opportunity Commission (EEOC), lawsuits, and the loss of talent to more progressive competitors.

Employers are well advised to use the New York City standard as best practices to avoid gender stereotyping and bias discrimination in the workplace. Gender inclusive policies should include:

  • Allowing employees to designate their preferred name, pronoun, and title at the time of hire, and to change these at any time
  • Enforcing the use of designated names, pronouns, and titles except when legally required to do otherwise, regardless of legal name change
  • Allowing access to facilities (including bathrooms) and programs regardless of conformation to sex stereotypes
  • Removing gender-specific dress codes or uniforms
  • Applying uniform grooming standards regardless of sex or gender
  • Writing employee benefits in gender-neutral ways
  • Considering requests for accommodations regardless of gender (such as FMLA or parental leave)
  • Avoiding requesting medical documentation for gender-nonconforming or transgender employees to receive benefits or accommodations associated with gender or sex
  • Adopting strong anti-harassment policies that prevent violence, threats, slurs, or exclusionary behavior

The best way for employers to respect their genderqueer employees is to listen to them. By creating a confidential reporting system, employers can tap into their workers’ understanding of genderqueer life and protect them from unintended genderqueer discrimination.

At Eisenberg & Baum, we understand that gender discrimination does not always fit into convenient buckets. For members of the Trans* community, protections against genderqueer discrimination can hard to explain, and even harder to enforce. From our office in New York City, our employment discrimination attorneys travel nationwide, helping gender-nonconforming workers negotiate with employers who simply do not understand. We are committed to making our office a safe space for you and your loved ones. If you feel like your employer is using your gender identity or expression against you, contact us. We’ll meet with you and help create a strategy that protects you against genderqueer discrimination.

Can a Separation Agreement Block an Employee​’s Discrimination Complaint?

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When employment discrimination comes to a head, it may be best for everyone if employer and employee part ways. But do you need to give up your legal civil rights claims to escape a hostile work environment? Can a separation agreement block an employee’s discrimination complaint?

In this blog post, I will review a settlement between The Coleman Company, Inc. and the EEOC in connection with the company’s separation agreements with former employees. I will review how Title VII and the Americans with Disabilities Act (ADA) address waivers of claim, and whether a separation agreement can be used to cut employees off from filing discrimination complaints after they have been fired.

Federal Laws Protect Against Employment Discrimination

There are a variety of state and federal laws that protect workers against employment discrimination on the job. Title VII applies to workplace discrimination based on race, religion, gender, and other protected traits. The Americans with Disabilities Act ensures that employees are not punished for their physical and mental disabilities.

These employment discrimination laws make it illegal to fire an employee, or force them to quit or retire, because of a protected trait. It is also illegal to retaliate by firing a person after he or she files an employment discrimination complaint with the Equal Employment Opportunity Commission (EEOC) or federal court. Less severe forms of discrimination are also covered by the statutes including shift assignments, compensation, and promotion decisions.

Severance Agreements and Waivers of Claim

Severance agreements are a regular part of modern employment law and human resource policies. These contracts are signed by the employee and a representative of the employer at the time of separation and control everything from intellectual property ownership to civil lawsuits. Many severance agreements include “release of claim” or “waiver of liability” provisions. They say that in exchange for financial payouts (sometimes described as so many “months of severance”) the former employee agrees to forgive any wrongdoing by the employer. But can these releases cut an employee off from filing employment discrimination claims to protect their civil rights?

EEOC Says Separation Agreement Violated Americans with Disabilities Act

The EEOC says no. In a recent press release, EEOC Phoenix Regional Attorney Mary Jo O’Neill said:

“Increasingly, we are seeing employers, whether intentionally or not, including overbroad language in their separation agreements that interferes with signatories’ rights to participate in EEOC processes or that impedes the EEOC’s ability to enforce federal anti-discrimination laws as it deems necessary.”

The agency and federal courts have generally said that contract provisions that cut off employees’ access to civil rights protections are illegal and void because they are against public policy. In other words, the courts won’t let companies get around following civil rights laws just by paying former employees not to file legitimate complaints. This means, even if the language of an employee’s severance agreement suggests she gave up civil rights claims against the company, she will still be allowed to file a discrimination complaint.

EEOC & Coleman Company Settlement Corrects Severance Agreement Overreach

When an employee filed a complaint against The Coleman Company, Inc., with the EEOC, this issue of severance agreements became the center of the case. The basis for the complaint was a violation of the Americans with Disabilities Act and Title VII. However, the voluntary conciliation agreement announced in February 2018 centered on the employee’s severance agreement and the employee’s right to file charges and cooperate with an EEOC investigation of those charges.

The EEOC said the severance agreement itself violated the civil rights laws by blocking an employee’s access to civil rights remedies. It interfered with their ability to file charges with the EEOC or accept relief obtained by the agency. Even if no other actual employment discrimination happened, the EEOC says the contract violated Title VII and the ADA by making employees believe they don’t have the right to file claims after they sign it.

After informal negotiations, Coleman agreed to hire an outside equal employment opportunity consultant to review its separation agreements, and to revise its current and past employees’ contracts to protect their ability to file EEOC charges. The company will also notify anyone who signed a separation agreement with the company between 2013 and 2015 that they may file employment discrimination charges and the company would not raise time-based defenses to the claims. O’Neill said:

“We applaud the Coleman Company for proactively tackling this issue once it was brought to its attention. . . . We hope other employers learn from Coleman’s model behavior and pay closer attention to their separation agreements. No matter what the intent, whether intentionally misleading or inadvertent, employers cannot insist on agreement provisions that are void against public policy.”

A severance agreement is not legally allowed to block employees’ employment discrimination claims. At Eisenberg & Baum, LLP, our employment discrimination attorneys know how to defend your civil rights claims, even in the face of an overly broad severance agreement. Contact us today to schedule a free consultation.

Could a Religious Objection to a Flu Shot Cost You Your Job?

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When your religious beliefs don’t match your boss’s it can sometimes create conflicts in the work place. But those conflicts don’t just arise between major faiths. Sometimes a seemingly small difference, like a religious objection to a flu shot, can result in religious discrimination, or even cost you your job. Find out what you can do when that happens.

In this blog I will review EEOC v Memorial Healthcare, Case No. 2:18-cv-10523, and the Title VII protections against religious discrimination. I will examine whether a religious objection to a flu shot could lead to an employment discrimination claim, and what reasonable religious accommodations may include.

Health Care Company Revokes Employment Offer Over Religious Objection to a Flu Shot

Yvonne Blair was all set to start working as a medical transcriptionist at Memorial Healthcare in Owosso, Michigan. The health care company had extended her an employment offer for a position that would eventually allow her to work from home, creating medical records for the facility.

But then the health care company learned that Yvonne had a religious objection to a flu shot or spray. It revoked its offer of employment, refusing to hire Yvonne even when she offered to wear a mask in the office instead. The company already had a policy in place authorizing the use of masks for employees who were medically unable to take a vaccine.

Yvonne filed a complaint for religious discrimination with the U.S. Equal Employment Opportunity Commission (EEOC). After pre-litigation settlement through its conciliation process failed, the EEOC filed a lawsuit in the U.S. District Court for the Eastern District of Michigan (Case No. 2:18-cv-10523).

Title VII Protects Against Religious Discrimination, Big and Small

The EEOC was enforcing Title VII of the Civil Rights Act of 1964. The law protects employees against discrimination based on a number of traits, including religion. It makes it illegal for an employer to base employment decisions on a person’s affiliation with an organized religion or holding of a sincerely held religious, ethical, or moral belief. It applies to any aspect of employment – from hiring and firing, to job assignments, promotions, and training.

Religious discrimination protections work much in the same way as the American with Disabilities Act. A person with a religious objection to a policy or practice in the workplace can request reasonable accommodation for their beliefs or practices. The employer must make reasonable adjustments to the working environment to allow the employee to practice her religion as long as doing so will have a minimal burden on the company’s business operations. Common religious accommodations include:

  • Flexible scheduling to avoid working on a person’s holy day
  • Voluntarily swapping assignments to avoid contact with religiously offensive products (like beef or pork)
  • Exceptions to the company dress code for religious head coverings
  • Use of beard nets to cover religious facial hair in food preparation

In Yvonne Blair’s case, she had a religious objection to a flu shot policy at the health care facility. She requested a religious accommodation, exempting her from the mandatory influenza vaccination and offering instead to wear a mask whenever she was in the office. The fact that the facility already had a mask policy for those medically unable to take vaccines suggested this was a reasonable adjustment to normal office policy.

The EEOC’s complaint was recently filed in federal district court, so there is no court decision on the issue as of yet. However, the complaint lays out Blair’s religious objection, request for accommodation, and the revocation of an employment offer. Unless the health care company puts forward a strong defense, she will likely be able to be compensated for its illegal employment decision based on Blair’s religious belief.

Religious discrimination for sincerely held religious beliefs may not get as much press as racial discrimination or sexual harassment, but it can be just as devastating for its victims. When a religious objection to a flu shot or other office policy costs you your job, you need an experienced workplace discrimination attorney to help you work through possible accommodations, negotiate with your employer, and help you file a complaint with the EEOC or in federal court.

At Eisenberg & Baum, LLP, we have experienced employment discrimination attorneys who can help. If you face religious discrimination at work, contact Eisenberg & Baum, LLP, today explore your options and protect your religious freedom.

Employers: Are Your Supervisors Likely to Sexually Harass Your Employees? Science Helps You Find Out

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You can’t truly know person from his or her interview. As an employer, every hire runs the risk of turning your office into a hostile work environment and opening your company up to sexual harassment complaints. Scientists have created a survey that can help you estimate if your supervisors are likely to sexually harass your employees.

In this blog post I will discuss Psychologist John Pryor’s “Likelihood to Sexually Harass Scale”. I will talk about an employer’s responsibility to respond to sexual harassment allegations, and explain how working with an employment discrimination attorney early, and informally, can help the company.

Sexual Harassment Is Not a New Problem

The #MeToo movement on social media has brought issues of sexual assault and workplace harassment to a new level of national awareness. But unwanted sexual attention at work is not a new problem. A closer look at the complaints against media moguls, politicians, and corporate CEOs reveals that this behavior has been going on for decades. So have the efforts to stop it.

Title VII of the Civil Rights Act, first enacted in 1964, recognized the need to protect employees of all genders from unwanted sexual advances, quid pro quo offers for sexual favors, and physical or verbal abuse. The law held employers, supervisors, and managers responsible for sexual misconduct that happened on their watch. Since then, the EEOC and private sexual harassment lawyers have been working, one case at a time, to defend employees’ right to work without sexual harassment or gender discrimination.

“Likelihood to Sexually Harass Scale” Gives Employers a Tool to Protect Workers

The scientific community has been working on the issue of sexual harassment as well. For over 30 years, Psychologist John Pryor, a professor at Illinois State University, has been working to find a way to sniff out problem employees and supervisors before they create hostile workplaces. Pryor first created his “Likelihood to Sexually Harass Scale” in the 1980’s to see if male supervisors’ behavior changed if they felt they could get away with sexual harassment.

He created a survey that tested sexual coercion — the willingness of a person in power to offer a bribe or threaten punishment for sexual cooperation. The test asked men to put themselves in 10 power positions: hiring a new assistant, promoting coworkers, and disciplining subordinates. It asked about their willingness to connect those decisions with romantic or sexual decisions. Then it compared their responses to those of known harassers. Over time, Pryor and his team put together a pattern of thoughts and behaviors of participants most likely to sexually harass employees:

  • Lack of empathy
  • Belief in traditional gender roles
  • Tendency toward dominance or authoritarianism
  • Feeling impunity or the belief they will get away with it

Generally, the more powerful a person felt, the more likely he was to cross the line into sexual harassment. That makes managers and supervisors more likely to sexually harass their employees than their less powerful counterparts.

Employers’ Duty to Prevent and Address Sexual Harassment

No one can control what another person says or does. There is no way for employers to stop every instance of sexual harassment. However, if you don’t respond to concerns raised by your employees, it could expose you to legal consequences.

The best way to address sexual harassment is to prevent it from happening. Commercial or even consumer versions of Pryor’s study could be a place to start, helping to identify high-risk employees. Managers and supervisors, particularly those who score as highly likely to sexually harass, can be required to attend training that outlines the law and company policies against sexual harassment and gender discrimination. You can also minimize the chances of harassment by requiring a third party be present in moments of high power dynamics (like hiring, promotions, reviews, and terminations).

When prevention fails, employers must take reasonable steps to address the sexual harassment that occurs. Depending on the circumstances, this could include disciplining the offender, rearranging shifts or assignments to separate the parties, reinstating lost positions or paying lost wages, and implementing procedural changes to keep it from happening again. Whatever you do, it is important that you protect the victim from retaliation, or you could be facing a separate gender discrimination claim on that alone.

Resolving Sexual Harassment Complaints

Employers have a lot to consider in addressing a sexual harassment claim. You need to balance the cost of defending litigation or EEOC charges against a lawsuit’s ability to disrupt your business. Often, the best answer is to resolve the matter privately by negotiating with the employee’s employment discrimination attorney or the EEOC investigator.

Informal mediation, negotiation, and other alternatives to public court can protect your business and your employee’s interests. Often, your employee is just as interested in resolving the matter quickly and quietly as you are. If you find yourself facing a sexual harassment complaint that could escalate, it is often better for business if you set your pride aside and work with your employee’s attorneys, rather than simply promising to “see them in court.”

At Eisenberg & Baum, LLP, our experienced sexual harassment attorneys understand the balance between prevention and an employer’s reasonable response. We are often happy to work with our clients’ employers informally to resolve sexual harassment complaints without the unnecessary publicity that can come with a federal complaint. If you are an employee facing sexual harassment and want an attorney who will respect your priorities, as well as defend your interests, contact us today to schedule a free initial consultation and understand the options for your case.

Responding to the Threat of Native American Racial Discrimination

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The public face of racial discrimination is usually an African American, or possibly Latino. However, members of any minority can face bias and prejudice at work and in their day-to-day lives. Tribal members, and others who identify as Native Americans, face their own unique threat of Native American racial discrimination. But there are ways to respond to the threat against the nation’s First Peoples.

In this blog post, I will review the Robert Wood Johnson Foundation’s poll regarding racial discrimination among minorities and a publicized panel discussion hosted by the Harvard T.H. Chan School of Public Health regarding Native American Racial Discrimination. I will identify unique challenges faced by native employees and will provide options for those facing discrimination at work.

Native Americans Are An Underrepresented Racial Minority

In conversations about race relations in America, the risks faced by African Americans often take center stage. Sometimes, the loud voices of groups like Black Lives Matter can drown out the perspectives of smaller minority groups, including Native Americans. Stephanie Fryberg, associate professor of psychology and American Indian studies at the University of Washington, told NPR:

“Native people are generally omitted from discussions of discrimination. . . We have been rendered invisible in so many domains. . . the perception is that we’ve vanished or there is the negative stereotype that we are helpless, dependents or wards of the government. That is just not my experience.”

The Robert Wood Johnson Foundation’s racial discrimination poll makes an exception to that invisibility. In breaking down the statistics by racial minority, the poll, and a series of articles explaining the data, gave voice to a variety of racial groups, including Native Americans. The study included 342 adult Native Americans, asking questions about everything from police interaction and housing to workplace discrimination. It evaluated discrimination on the societal and community level, and asked people about their personal experiences, shedding light on the frequency of Native American racial discrimination.

1/3 of Native Americans Report Workplace Discrimination

Native American’s relative rarity (as compared to other racial minorities) doesn’t stop them from being the target of workplace harassment and discrimination. According to the Robert Wood Johnson Foundation’s poll, one third of all workers surveyed in the category report having personally experienced Native American racial discrimination when it came to pay or promotions. Over 30% said they had experienced discrimination when applying for jobs. More broadly, 39% of Native Americans surveyed reported personally experiencing offensive comments, racial slurs, and negative assumptions about their race.

Living In Majority-Native Areas Makes Discrimination Worse

Native Americans (including “Indians”, Native Alaskan and Native Hawaiian residents) make up less than 2% of the nation’s workforce. However, their populations tend to gather in particular geographical regions because of national treaties, which established reservations with the various tribes. NPR’s review of the RWJF poll shows that areas with large populations of indigenous people have bigger problems with Native American racial discrimination than more blended communities. In majority-Native areas, poll participants were significantly more likely to experience workplace discrimination (54% compared to 22% in non-majority areas), and in their interactions with police officers (55% compared to 16%). This may be because the stereotypes associated with the First Peoples are more widely known in areas with higher populations.

Responding to the Threat of Native American Racial Discrimination

Native Americans may perceive government institutions including the police as working against them. But national Civil Rights laws, including Title VII protect all American workers. When faced with the threat of Native American racial discrimination, indigenous workers have the right to file complaints, internally, with the Equal Employment Opportunity Commission, or in federal court. They may be entitled to relief if they experience discrimination in:

  • Applying for jobs or promotions
  • Assignment of tasks, shifts, or responsibilities
  • Payment of wages
  • Addressing workplace harassment by coworkers

Whenever a person’s race enters into an employment decision, whether that race be white, black, or Native American, that person has the right under Title VII to be compensated for those lost employment opportunities.

At Eisenberg & Baum, LLP, our employment discrimination attorneys understand the risks faced by Native American workers. We know what Native American racial discrimination looks like, and how to make it stop. We will help you assess the strength of your case and explore your options in and out of court. Contact us today to schedule a free consultation.