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One Fair Wage Says Darden Restaurants’ Tips Policy Caused Racial and Gender Discrimination

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Can working on tips perpetuate racial or gender discrimination at work? The advocacy group One Fair Wage has filed a lawsuit against industry giant Darden Restaurants arguing that the company’s tips policy caused racial discrimination and sexual harassment by its customers to go unchecked.

Olive Garden Parent Company Comes Under Fire for Discrimination

On April 15, 2021, the non-profit advocacy group One Fair Wage (OFW) filed a discrimination lawsuit against Darden Restaurants, the parent company for popular chains like Olive Garden, LongHorn Steakhouse, and Capital Grille. Darden Restaurant Group owns and controls more than 1,800 chain restaurants, employing 175,000 workers, including thousands who work on tips.

The lawsuit, filed in California’s federal district court, followed on the heels of four separate complaints at the Equal Employment Opportunity Commission (EEOC) on behalf of employees in New York, Washington DC, and California last September. It said that the company’s policies — specifically those related to tipped wages — exposed workers to sexual harassment and racial bias.

One Fair Wage Says Tipping Policy Perpetuated Discrimination

The lawsuit was based on alleged violations of Title VII of the federal Civil Rights Act of 1964, but not necessarily in the way you might expect. The complaint said that Darden’s restaurants used a “subminimum wage” tip policy that caused women and employees of color to be paid less than their white male counterparts. Pam Araiza, a Latina employee in Darden restaurants from 2007 until 2020, is one of the plaintiffs in the lawsuit. She says she was consistently discriminated against and assigned to sections of the restaurant known to generate less in tips:

“Darden pays some of the lowest wages, $2.83 an hour in 40 states. Guests are expected to make up the difference. . . . Managers, hostesses and co-workers have the power to impact your earnings based on tables you are given, deliberately profiling guests based on spending history tied to previous dining, using stereotypes and race as a decision of where they want to put guests. How much you are liked or how you look factors into what you get as well.”

Saru Jayaraman, president and co-founder of One Fair Wage said in a press conference that as the largest member of the National Restaurant Association lobbying group, Darden was responsible for keeping tipped workers’ wages “as inhumanely low as possible.” The complaint alleged:

In addition, the complaint raises concerns about sexual harassment at Darden-owned restaurants. Sexual harassment is rampant in the food industry. According to OFW’s poll of Darden workers, nearly 40% had faced racial or gender discrimination or offensive behavior by a co-worker, manager, or customer. The mandatory subminimum wage policies leave managers little incentive to investigate or respond to sexual harassment claims at work.

When most of an employee’s income is derived from tips, raising concerns about a customer’s treatment means reaching into your own pocket to protect your dignity. With the subminimum wage policies in place at Darden restaurants, many employees can’t afford to stand up for their rights.

Is Darden Restaurant Responsible for Following Federal Tipped Wage Laws?

Still the question remains whether the tipping wage policy in place at Olive Gardens, LongHorn Steakhouses, and other restaurants across the country can truly have created the discrimination alleged by One Fair Wage. The federal Fair Labor Standards Act sets the minimum wage for tipped workers at $2.13 per hour. Employers only have to make up the difference if employees’ tips and their wages add up to less than $7.25 per hour, the normal minimum wage for hourly workers nationwide. Some states have higher minimum wage and tipped wage laws.

Darden’s policy requires that tipped workers be paid the lowest hourly wage allowed by local law. Restaurant managers have no discretion to increase an employee’s wages. One Fair Wage says:

“When a company adopts wage policies or practices like these that result in disparate, negative impacts on the basis of sex and race, and there is no business necessity for  doing so, it engages in illegal employment discrimination under federal law.”

The advocacy group and others like it have been lobbying for increased wages nationwide for years. Together with the Restaurant Opportunities Center, OFW has successfully pushed several states to eliminate tipped wages altogether. Now OFW has taken one of the industry’s heaviest hitters to court to put pressure on restaurant groups to do better by their workers. They argue that Darden Restaurants could have mitigated sexual harassment and racial disparities in tipping by creating pooling tips among restaurant employees or charging customers a standard service fee, rather than allowing them to set their own tips according to  “capricious and emotional” unconscious biases.

Darden Restaurants defended its policy, saying it was following federal and state laws. Rich Jeffers, Senior Communications Director for the restaurant group called Darden “the employer of choice” and boasted a nationwide average tipped wage of more than $20 per hour. However, this is in large part a result of the work of advocacy groups like OFW to raise wage minimums at the state level. The question of whether the company’s tipped wage policy can result in a Title VII violation for race and gender discrimination may be a novel theory to get workers the help they need to be paid fairly, or it may end up being little more than another step in the advocacy group’s lobbying efforts.

At Eisenberg & Baum, LLP, our employment discrimination attorneys know how unfair wages can create and perpetuate racial discrimination and sexual harassment at work. If your company isn’t compensating you fairly, or if you are being discriminated against in your shifts or assigned duties, we can help you protect your rights at the EEOC, and in state or federal court. We will meet with you and review your options to get paid fairly for your work. Contact us today to schedule a free consultation.

Transgender Warehouse Worker Seeking FedEx Lawsuit

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Being yourself at work shouldn’t mean dealing with daily insults, threats, and mistreatment. But in a FedEx lawsuit, a warehouse worker coming out as transgender at work meant that former mates and coworkers turned on her, forcing her out of a job she used to love.

UK FedEx Lawsuit Calls Out Transgender Discrimination in Warehouse

Toy Prendergast had worked at FedEx’s UK headquarters in Newcastle-Under-Lyme for years. Her career as a depot operative at the company spanned 12 happy years. Throughout that time, Prendergast was presenting as male, using the name Paul.

(Mrs. Prendergast has chosen to continue to refer to her pre-transition name in explaining her experiences with the company. That name is included in this post to give context to her statements. Eisenberg and Baum does not believe in deadnaming Trans* individuals and believes that every transgender person should be granted the dignity of choosing a name that fits with their gender identity and expression.)

Before coming out, Prendergast had a good relationship with her coworkers, counting many of them as friends. But then, in 2017, Mrs. Prendergast made the difficult decision to come out at work. She began living openly as a woman and presenting as female on the job under the name Toy. Her former “mates” turned on her immediately. She told the Daily Mail:

“I used to be one of the gang as Paul – but when I came out as Toy they turned on me straight away. My life was made hell. I was scared to go to work – I was scared for my safety.

“Virtually every day I was being abused. I would wake up every night crying and drenched in sweat.

“I just couldn’t go on – I was having too many suicidal thoughts. I was panicking at the very thought of going into work. Every day was like a recurring nightmare.”

Mrs. Prendergast says she that she was subjected to nearly daily sexual harassment and gender discrimination. Her coworkers would call her names including “f****** queer”, make sexually suggestive movements and gestures, and force her to complete heavy tasks that were very difficult for her after her transition.

She reported the “toxic and intimidating environment” to FedEx after her coworkers’ behavior began to trigger panic attacks, depression, and suicidal thoughts. However, her complaints were never taken seriously. Finally, in May 2020, Mrs. Prendergast was forced to leave the company to protect herself. She is now suing the company under English anti-discrimination laws.

US Title VII, New York State Human Rights Act Protect Transgender Workers

Here in the U.S. there are state and federal laws that protect against gender discrimination and sexual harassment like what Mrs. Predergast experienced when she came out as Trans*. Title VII of the federal Civil Rights Act prevents discrimination and harassment based on a person’s sex or gender. That includes sexual orientation and transgender discrimination.

In 2020, the U.S. Supreme Court considered a case very similar to Mrs. Prendergast’s. In RG & GR Harris Funeral Homes, Inc v EEOC, funeral director Aimee Stephens was told not to come back after she told her employer she would be presenting as female at work. The Supreme Court said that this action, as well as two other cases involving sexual orientation discrimination, were necessarily based on the sex of the workers involved.

“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

The New York State Human Rights Act goes even further. It expressly prohibits discrimination based on “gender identity or expression.” According to the act:

“The term ‘gender identity or expression’ means a person’s actual or perceived gender-related identity, appearance, behavior, expression, or other gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender.”

Had Mrs. Prendergast filed her FedEx lawsuit in New York, she and her workplace discrimination attorney could have chosen between state and federal court.

What to Do if Coming Out at Work Results in Sexual Harassment

If Mrs. Prendergast’s story feels familiar, there are some important steps you should take before leaving a hostile work environment:

  1. Object to the harassing behavior when it happens
  2. File a written complaint with your supervisor, union representative, or HR department
  3. Follow up on your complaint in writing (email counts)
  4. Document each incident of discrimination or harassment in a personal calendar or journal
  5. Get allies and witnesses to write statements to your employer (and keep copies for yourself)
  6. Talk to an employment discrimination attorney (even before quitting) to see if they can negotiate with your employer to make changes and avoid a lawsuit

At Eisenberg & Baum, we understand how to pressure employers like FedEx to comply with state and federal law and stop sexual orientation and transgender discrimination at work. Our employment discrimination attorneys, help LGBTQ+ protect their rights under Title VII, and state civil rights laws. We can help you protect the job you love or recover damages if coworkers’ abusive behaviors have forced you to quit. If you have been the victim of transgender discrimination, contact us. We’ll meet with you and help create a strategy that protects you and moves you closer to equality.

Black Women Face Gender and Racial Discrimination in Pinterest Careers

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Pinterest careers are often seen as a kinder, gentler social media start up. But according to a pair of black women who publicly resigned from the company in May 2020, the company’s public face hides a corporate culture of gender and racial discrimination that forced them out of the company and into filing a complaint with their state’s Department of Fair Employment and Housing.

Pinterest’s Public Perception of Positive Diversity

Among social media startup companies, it is hard to find one with a better reputation than Pinterest. The company was started by a tech industry outsider from Iowa and is known for having etiquette policies like, “Be Nice.” At one point, co-founder Evan Sharp said that the company liked to hire “geniuses that are nice to each other.”

Much of the company’s reputation for supporting diversity was a result of the work of the company’s 3-person policy team, which included Ifeoma Ozoma and Aerica Shimizu Banks. The team was responsible for the company’s decision to stop promoting content about slave plantation weddings and anti-vaccination theories, as well as reinstating holiday pay for Pinterest contractors.

Policy Team Cancels Their Pinterest Careers Over Discrimination Complaints

But behind closed doors, Pinterest employees face the same problems as other women in tech. In May 2020, Ozomo and Banks, both black women, publicly terminated their Pinterest careers on Twitter, posting that they were underpaid and faced gender and racial discrimination at work. Ozomo, Banks, and several other anonymous Pinterest employees told the Washington Post that the reality inside the company was very different from the public face. Ozoma told the Washington Post:

“On the one hand, Pinterest was fine with me being the person interviewed on ‘All Things Considered,’ the person who’s doing press all around the world on behalf of the company for an initiative I’m leading,” Ozoma said. “And on the other hand, they just completely did not believe that I had enough sense and enough ability, both financially and otherwise,” to keep pursuing her bias claims, which she felt Pinterest had shrugged off.

One black woman was told to stop speaking at meetings, only to watch her manager use her presentations to speak to clients in her place. The only black person on her team, she told the newspaper that an executive joked that she should act as “the servant” and “serve” her co-workers during a team dinner. She said:

“Everyone knew it was wrong, but nobody said anything in that moment.”

When the black women employees raised these issues with HR, they were made to feel imcompetent and faced retaliation. Under the guise of investigating gender and racial discrimination complaints, Pinterest hired outside investigators to dig into ways to blame the victim.

For example, in June 2019, Ozoma’s personal details were published on extremist forums such as 8chan and 4chan after Ozomo suggested creating advisory warnings around “white supremacist” statements by conservative news personality Ben Shapiro. A coworker leaked her personal information to these social media groups that organize harassment campaigns. But when Ozomo went to Pinterest’s legal department for help, the company asked a third-party company to research whether Shapiro actually was a white supremacist — questioning the validity of her claims instead of ensuring she was safe from harassment at work.

Discrimination in Tech Tied to Monoculture in Recruitment

In response to Ozomo’s and Adams’s Twitter announcement, Pinterest chief executive Ben Silbermann issued a note to his staff saying:

“What I’ve learned over the past few weeks is that parts of our culture are broken. Truthfully, I didn’t understand just how much work we have to do. That’s not an excuse, that’s a failure in leadership, and I’m truly sorry for letting you down. I’m grateful that so many of you had the courage to share your experiences honestly and openly. . . .

“It’s been devastating to hear the stories of Black employees who feel like they don’t belong at Pinterest. . . . I’m embarrassed to say that I didn’t understand the depth of the hardship and hurt many of our team members have experienced. I need to do better. My leaders need to do better. And Pinterest needs to be better.”

Silbermann’s letter acknowledged that gender and racial discrimination can persist even in companies with anti-discrimination policies if workers are afraid of bringing their concerns forward. He also acknowledged a lack of diversity at the highest levels of the company. Michelle Kim, a diversity expert who hosts workshops for tech companies, including Pinterest told the Washington Post:

“Unfortunately, this is not just a Pinterest problem. Every tech company I know has stories of anti-Black racism and bias.”

In part, this is due to the tech industry’s “monoculture”, a system where white and Asian men are put into positions of power and then tend to hire people from within their networks, who tend to also be white and Asian men, who hire people from within their networks, and so on. This creates a homogenous employee group where women and minorities are underrepresented and feel out of place, even when they have excellent credentials. It isn’t that there is a lack of talent among diverse populations. For example, Ozoma and Banks had resumes including work at Google, Facebook, and the White House, as well as degrees from Oxford and Yale. However, when it comes to hiring and promoting black women and other minorities, those credentials often take a back seat to questions of “culture” and “fit” that perpetuate white male dominance within the industry.

Silbermann has promised further changes in Pinterest careers, including a comprehensive review of employee compensation and evaluations, and senior-level and board-member recruitment. However, if Ozoma’s and Banks’s circumstances show anything, it is that policies aren’t enough. Without robust internal enforcement, gender and racial discrimination will continue to thrive, and employees who face harassment and discrimination will still need to resort to employment discrimination complaints to protect themselves and their rights.

At Eisenberg & Baum, LLP, our employment discrimination attorneys know that policies on paper aren’t enough to protect black women from gender and racial discrimination at work. If you work in tech or another male-dominated industry and have been treated poorly by your managers and your company, we can help. We will meet with you and review your options to get you compensation for the harm you have suffered. Contact us today to schedule a free consultation.

Baptist Church Pastor Fired after Coming Out as Trans in Sermon

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In the latest intersection between LGBTQ+ rights and religious freedoms, a Canadian Baptist church pastor was voted out after she came out as Trans in a sermon. Find out what happened, and how recent court decisions have shaped and limited the options available to religious leaders here in the United States.

Baptist Church Votes to Remove Pastor Fired for Coming Out as Trans

The livestreamed sermon on June 14, 2020, for the Lorne Park Baptist Church in Mississauga, Toronto, Canada, wasn’t your everyday Sunday lesson. In front the whole congregation and the greater community of the internet, Junia Joplin came out as a trans woman.

“I want to proclaim to my transgender siblings that I believe in a God who knows your name, even if that name hasn’t been chosen yet,” she said during the livestream. “I believe in a God who calls you a beloved daughter even if your parents insist you’ll always be their son.”

The sermon became popular among LGBTQ Christians online, who valued how she wove together themes of the religionand self-acceptance that so many gay and trans individuals struggle with. Many of Joplin’s parishioners were supportive as well, including some she hadn’t expected.

However, not everyone was so enthusiastic about her coming out, however. Shortly afterward she received an email from church leadership, and on July 20, the congregation voted on whether to remove Joplin from her position. Aftera a narrow vote, the congregation fired her for coming out as trans.

A Congregation Divided Over a Trans Pastor’s Coming Out

The close vote raised questions and controversy for many within the Lorne Park Baptist Church community. A former pastor of the church spoke up on the church Facebook account, perpetuating the gender identity discrimination by deadnaming Joplin and intentionally using the wrong pronouns. At the same time, other frequent attendees questioned how the vote was done, finding that they had been excluded because they were not official members of the congregation.

In the months since the vote, the church has experienced substantial upheaval. Six of its eight executive council members and two of its pastoral team have stepped down. When asked their reasoning for removing her, several parishioners admitted they voted against her for reasons other than the church’s theological beliefs, indicating that their motives were purely discriminatory, rather than based on some religious belief or tenant.

Trans Employees’ Rights in the Face of Gender Discrimination

Here in the United States, 2020 has been a big year for Trans employees’ rights. Earlier this year, the United States Supreme Court extended Title VII’s protections against gender discrimination officially include same-sex orientation discrimination and gender identity discrimination. Now, no matter where Trans* employees live and work, they can file wrongful termination or gender discrimination claims with the Equal Employment Opportunity Commission or in federal court when they are fired for coming out or expressing their true gender identity.

Pastors Find Employment Law Doors Closed Under Ministerial Exception

Pastor Joplin is far from the first minister to find herself removed from her pulpit after coming out as LGBTQ. The Shower of Stoles project has gathered over a thousand liturgical stoles and sacred items from pastors, priests, ministers, and rabbis who faced sexual orientation and transgender discrimination within their churches, synagogues, and places of worship.

However, while their Trans* brothers and sisters have found shelter in the Supreme Court’s rulings, pastors and ministers still do not have access to those same federal laws. That is because of the “Ministerial Exception” to federal anti-discrimination laws. This exception says that, because of the U.S. Constitution’s law against government-established religion, churches and other religious institutions must be allowed to control who they employ in ministerial positions. The Supreme Court recently ruled that this included Catholic school teachers. It would even more clearly apply to a Baptist church pastor such as Joplin.

That doesn’t mean there is nothing to be done when transgender religious discrimination threatens the job of a Trans pastor or minister. At Eisenberg & Baum, we understand the impact gender identity discrimination on transgender and nonbinary pastors and employees. From our office in New York City, our employment discrimination attorneys can help Trans* pastors negotiate with congregations and employers to protect their rights. We are committed to making our office a safe space for you and your loved ones. If you feel like your position is at risk because of your gender identity or expression, contact us. We’ll meet with you and help create a strategy that protects you against gender identity discrimination.

ABA Ethics Committee Releases Discrimination and Harassment Guidelines in New Opinion

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Lawyers, specifically employment lawyers, are the ones who help employees fight back against discrimination and harassment at work. But what about when they are the victims of the behavior, or the ones doing the harassing? The American Bar Association’s Ethics Committee has released a new formal opinion that provides discrimination and harassment guidelines for lawyers, judges, and state supreme courts across the country.

ABA Sets Discrimination and Harassment Guidelines

The American Bar Association (ABA) is a nationwide organization that guides the practice of law across the country. One way the ABA does this is by issuing its “Model Rules of Professional Conduct”. However, the Model Rules themselves don’t affect anyone. Instead, they represent industry best practices, which individual states’ supreme courts can decide to adopt, adjust, or reject.

In 2016, after years of study and debate, the ABA House of Delegates voted to update Model Rule 8.4(g), which applies to discrimination and harassment. The current version of the model rule says:

It is professional misconduct for a lawyer to . . . engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

The official comments on the rule provide some important definitions:

  • “Discrimination” includes “harmful verbal or physical conduct that manifests bias or prejudice towards others.”
  • “Harassment” includes “derogatory or demeaning verbal or physical conduct.”
  • “Sexual harassment” includes “unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature.”

States Split Over Adoption of ABA Harassment and Discrimination Guidelines

Since the new discrimination and harassment guidelines went into effect, state courts and legal experts have been divided on whether to adopt the Model Rules for themselves. The most vocal opponents to the Model Rules said they unconstitutionally restricted lawyers’ First Amendment rights to free speech and free exercise of religion. Marc Randazza, a First Amendment attorney from Las Vegas, called the Model Rule, “a speech trap for any lawyer who sticks his or her neck out on issues that might be considered controversial.”

Opponents also said the Model Rule went too far, allowing a single inappropriate action to create grounds for attorney disciplinary action — even disbarment. Because of the controversy, as of June 2019, only two states had adopted the ABA’s discrimination and harrasment guidelines.

ABA Model Rules Hold Lawyers to Higher Standard

Title VII of the federal Civil Rights Act and state and local anti-discrimination laws set similar standards for employers across the U.S. These laws generally require employers to take reasonable steps to address severe or ongoing sexual harassment and discrimination that happens in the workplace. Single incidents, unless they are particularly serious, are not enough to trigger the obligation to respond.

The ABA Model Rules go further. As the recent ABA ethics opinion explained, “Although conduct that violates Title VII of the Civil Rights Act of 1964 would necessarily violate paragraph (g), the reverse may not be true.” The ethics opinion made clear that even a single derogatory sexual comment could violate the anti-harassment guideline. “The isolated nature of the conduct, however, could be a mitigating factor in the disciplinary process.” The opinion acknowledged that this held lawyers to a higher standard than the general public:

“Harassment and discrimination damage the public’s confidence in the legal system and its trust in the profession.”

What Counts as Discrimination and Harrasment Under the Model Rules

To provide guidance to state supreme courts considering adopting the ABA model discrimination and harassment guidelines, the Ethics Committee set out five hypothetical situations, and addressed whether each would count as discrimination or harassment under the rule:

Representation of Organizations Advocating for Discriminatory Policies: Not Misconduct

It is not misconduct for a lawyer to represent a religious organization challenging a local ordinance requiring schools to offer gender-neutral restroom or locker room facilities. Offering advice or advocacy on issues, even if others may disagree with the position, does not violate the rules.

Advocating Controversial Viewpoints at Lawyer Education Programs: Not Misconduct

It would also not be discrimination or misconduct to advocate against affirmative action policies while at a continuing legal education (CLE) program. While attendance at these programs is covered by the anti-discrimination rules, a general point of view is not harassment or discrimination, even if others might find it upsetting or offensive.

Participating in Advocacy Against Existing Anti-Discrimination Laws: Not Misconduct

A lawyer can also not be disciplined for participating in a religious legal organization that advocates in favor of allowing discrimination based on sexual orientation or gender identity. Even though the actions the organization advocates for are illegal under federal or state laws, pure advocacy is not harmful discrimination or a violation of the rule.

Unwelcome Physical Conduct by an Adjunct Professor at a Law School: Misconduct

An adjunct professor at a law school clinic who makes unwanted physical advances against the law student can be disciplined for misconduct. Even though his action took place outside the scope of representation of a client, it still qualifies as “conduct related to the practice of law.”

Law Firm Partner Makes Discriminatory Policy Planning Remarks: Misconduct

A partner at a law firm who makes discriminatory comments that the firm should not employ or represent Muslims as clients can be disciplined for misconduct because her behavior is “related to the practice of law”. This is true even if the person listening is not the target of the discriminatory comment.

Most states have some form of anti-discrimination policy included in their bar association’s code of professional responsibility, but few go as far as the Model Rules. In time, perhaps this ABA ethics opinion will quiet concerns about lawyers’ free speech, and shield attorneys from discrimination and harassment in the law offices, bar association programs, and social events that are essential parts of being a lawyer.

At Eisenberg & Baum, LLP, our employment discrimination lawyers know how to use model rules and industry standards to your benefit when discrimination or harassment happens at work. Whether you are an attorney at a big law firm or a clerk in the mail room, will review your case and help you prepare a strategy to get the relief you need. Contact us today to schedule a free initial consultation and get your case started.

Jones Day’s Pay Discrimination Cases Could Become a Collective Action

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The $2 million pay discrimination cases against the Jones Day law firm has been around for a while. Initially filed in April 2019, the case has progressed through rounds of discovery and survived a motion to dismiss by the employer. Now the women lawyers who filed the case are asking the court for provisional certification of their Equal Pay Act claims as a collective action. Here’s what that means for the rank and file lawyers working for the firm across the country.

Gender Discrimination Lawsuit Says Jones Day Treats Women Lawyers Worse

Last year, six women attorneys at the Jones Day law firm made big news by filing a lawsuit against their employer for gender discrimination, pregnancy discrimination and violations of the Equal Pay Act. As explained in an earlier blog post, the Complaint, filed in the United States District Court for the District of Columbia said the firm’s “fraternity culture” stood in the way of women associates’ career advancement, caused them to be paid less than their male coworkers, and face discrimination when they became pregnant or even asked about the company’s maternity leave policies.

The title of that document, filed on April 3, 2019, was “Class and Collective Action Complaint”. That title, and the portions of the Complaint that support it, mean that the six plaintiffs listed in the document aren’t just looking to be compensated for their own losses. Instead they are hoping to force Jones Day to make systemic changes in the way they set associates’ pay and address workplace discrimination complaints to improve the way all the women lawyers are treated in the firm’s offices nationwide.

Collective Actions Versus Class Actions — Why It Matters

Notice that the complaint has two parts: class action and collective action. That is because the federal statutes controlling gender discrimination and pay discrimination have different procedures to deal with systemic problems. Title VII of the Civil Rights Act and the Pregnancy Discrimination Act both use traditional federal class action rules. For a lawsuit to apply to an entire class of people (like all women employees of the Jones Day law firm), the plaintiffs in that case have to show four things:

  1. Numerosity — that there are so many people affected that it doesn’t make sense for them each to file their own lawsuit
  2. Commonality — that everyone in the class has been affected by the defendant’s actions in similar ways
  3. Typicality — that the individual plaintiffs who filed the lawsuit has the same interest and suffered the same type of injury as the rest of the people affected
  4. Adequacy of Representation — that the individuals and law firms involved have the ability to protect the interests of the class members

There are a lot of legal technicalities that go into whether a class will be certified, and many would-be class actions don’t end up applying beyond the individuals who filed them. However, a class action remains a powerful tool in cases where there is systemic gender discrimination against large numbers of employees.

Complaints under the Equal Pay Act work differently. Instead of allowing plaintiffs to file class actions on behalf of everyone in a similar situation, they instead use collective actions. The biggest difference between a collective action and a class action is that in a collective action, employees not already part of the case receive notice of an opportunity to opt in to the case. In a class action, those employees still receive a notice, but it informs them their claim will be included in the litigation unless they opt out.

Because of this, it is much easier to have a case certified as a collective action than a class action. A case will receive “conditional certification” as long as there are some facts showing that the individual plaintiffs and the potential opt-in plaintiffs all were affected by the same illegal policy or plan. Later on, after the parties have gathered more evidence, the court may review the certification, decide if the cases are as similar as they originally seemed, and if not, dismiss the opt-in plaintiffs claims “without prejudice” so they can file them separately on their own.

Jones Day’s “Black Box” Unfair Pay Practices Created Collective Action Claims, Plaintiffs Say

The women attorneys in the Jones Day case have asked the federal court for conditional certification on their Equal Pay Act claims. They say Jones Day’s firm-wide policies about compensation, salaries, and pay secrecy are the kind of illegal policies that collective actions are designed to protect against. According to the women, the compensation for all associates, regardless of geographic location or area of practice, are all based on the same criteria. Ultimately, all compensation decisions — including raises — are made by managing partner Stephen J. Brogan and two firm-wide leaders. This “black box” decision-making means that a decision in the collective action could be applied company-wide, without worrying about individual geographic considerations.

Jones Day’s lawyers are fighting back against collective action. They say that associate pay is determined through a multi-layered process and that dozens of attorneys weigh in on the decision. However, even they admit that local managers don’t have the final say, nor can they modify the Managing Partner’s final decisions.

And some of those decisions result in pay discrimination, say the plaintiffs. The data they have received in discovery so far shows in 23 cases out of 100, local salary recommendations were changed when they got to the Managing Partner, including 3 cases where male associates were given $20,000 – $40,000 raises. No female associate received nearly that much.

Now it is up to the federal district judge to decide if the Jones Day women lawyers should be allowed to opt in to a collective action to protect their rights to Equal Pay. If they do, it could mean the law firm will be required to completely rework how its associates are compensated, and more women lawyers could find their way to making partner.

At Eisenberg & Baum, LLP, we aren’t afraid to take on the big cases. We know how to use the tools of class actions and collective actions in federal court to help you and your coworkers fight your pay discrimination cases. If you are being paid less than you deserve and suspect equal pay violations, our employment discrimination lawyers will review your case and help you prepare a strategy to get the relief you need. Contact us today to schedule a free initial consultation and get your case started.

“Sex-Plus” Discrimination During COVID-19 Layoffs

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The government response to the novel Coronavirus COVID-19 shut down businesses across the country. While most states are now reopening, many employees are finding that the COVID-19 layoffs weren’t as temporary as they thought. Older women in particular are finding that the overlap between continued restrictions on women-led industries and fears around Coronavirus vulnerabilities are creating fertile ground for “sex-plus” discrimination, leaving them without work even as the country reopens for business.

Older Women Face the Highest Numbers of COVID-19 Layoffs

April 2020 was undisputedly the worst month in recorded history for U.S. employment. In response to the COVID-19 pandemic, entire states shut down and approximately 20 million people lost their jobs. The unemployment rate in the United States skyrocketed from 4.4% to 14.7%, the highest level since the Great Depression. While those numbers have recovered slightly as the country reopened, nationwide unemployment was still at 11.1% in June 2020.

The force of the Coronavirus shutdown wasn’t felt with equal weight by everyone, though. According to an AARP Employment Data Digest, older women (over age 55) were hit the hardest, with an unemployment rate of 15.5% in April 2020. There were a variety of factors that converged to make older women most vulnerable to COVID-19 layoffs.

COVID-19 Shutdowns Hit Women-Led Industries Hardest

First, unlike in earlier recessions, this year’s shutdowns hit the service industry first. High-contact workplaces like retail stores, beauty salons, and restaurants — where women make up the majority of employees — were shut down first and have the strictest regulations when reopening. While factories hurried to retrofit and reopen and offices pushed staff into remote work, these industries simply closed. That left women more likely to face temporary layoffs, and made it more likely that those terminations would become permanent as small service industry businesses made difficult decisions about when and whether they would reopen.

Older Adults Face Layoffs Because of COVID-19 Vulnerabilities and Assumptions

Second, early studies revealed that older adults were at higher risk of complications if infected with COVID-19. This combined with existing assumptions that older workers cost more in health benefits and would be less able to adapt to the technology needed to work remotely than their younger counterparts. When companies sought to trim their workforce and stay open, older workers were more likely to be the ones laid off.

When these two factors overlapped, older women found themselves in the crosshairs. It is just one example of what happens when intersectional discrimination weighs most heavily on workers who fall into more than one minority category.

“Sex-Plus” Discrimination and Intersectionality in the Workplace

There are a variety of state and federal laws that protect against discriminatory employment practices. The most famous of these is Title VII of the 1964 Civil Rights Act. This federal law prohibits discrimination based on an employee’s inherent traits:

  • Race or color
  • Sex or gender (including pregnancy, gender identity, and sexual orientation)
  • National origin
  • Religion

Any time an employee is targeted because of one or more of those traits, she or he can file a complaint with the Equal Employment Opportunity Commission (EEOC). Intersectional employment actions give an employee a “sex-plus” discrimination claim based on the overlap of discriminatory conduct. For example, someone fired because she was a black woman would have an EEOC claim even if she wouldn’t have faced the same discrimination as either a white woman or a black man. Intersectional discrimination has been protected since at 1980, at least when both traits fall under Title VII’s umbrella of protection.

But Title VII doesn’t shield against age discrimination. At the federal level, ageism is the target of a separate law, the Age Discrimination in Employment Act (ADEA). Even though this law has been in effect nearly as long as Title VII, it has different rules about when and how older workers can bring claims against their employers. In some parts of the country, those differences can create problems for older employees claiming sex-plus discrimination based on a combination of sex and age.

New York Human Rights Act Brings Intersectional Discrimination Claims Under One Umbrella

There is good news for those older women facing COVID-19 layoffs closer to home. The New York State Human Rights Law doesn’t draw the same distinctions between inherent traits as the federal law. At the state level age, sex, race, and many other traits are all protected under the same statute, with the same procedures. This makes it easier to pursue sex-plus discrimination claims and raise issues of intersectionality under the state law.

The law also protects against a wider variety of ageism. While the ADEA only applies to employees over age 40, and then only for discrimination based on assumptions that they are “too old” to do the job, the New York law protects against anyone age 18 or older from any employment decision made because of the individual’s age. That means that New York employees facing sex-plus discrimination in the wake of the Coronavirus have access to broader protections than their counterparts in other parts of the country.

At Eisenberg & Baum, LLP, our gender discrimination attorneys look beyond sexism to consider a wide variety of intersectional discrimination. We want to help our clients be compensated for the harm they suffered from sex-plus discrimination and layoffs based on false assumptions about their vulnerability to COVID-19, gender roles, or technical abilities related to age. From our office in the heart of New York City, we will review all aspects of your employment history to identify discrimination, and help you consider all your options under state and federal law. Contact us today to schedule a consultation with one of our attorneys.

Is Dating Violence on Campus Gender Discrimination?

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Every year, high school and college students across the country become the victims of sexual abuse and misconduct through dating violence. When domestic violence happens between intimate partners it can cause real emotional abuse, physical harm, and all too often ends in death. But does that make dating violence on campus gender discrimination? A new federal policy says it is.

Campus Title IX Enforcement Leaves Fatal Gaps in Dating Violence Case

Student track star Lauren McCluskey had reported her boyfriend Melvin Rowland to the University of Utah campus police several times for dating violence, according to her parents’ lawsuit. She had reported that he was harassing her, threatening to release revenge porn after she ended their relationship on October 9, 2018. However, according to the lawsuit, the investigators assigned to the case did not take those threats seriously, even though Rowland was more than 15 years older than her and a registered sex offender on parole.

According to one local news article, two of Lauren’s friends had also gone to the university’s dorm staff saying they were afraid he was controlling her, talked about guns, and often stayed in her dorm room. In spite of the reports, no work happened on her case, allegedly because the detective assigned to the case was off on vacation. By the time he came back, McCluskey was dead. She had been shot by Rowland outside her dorm on October 22. He later killed himself.

McCluskey’s parents sued the school saying that the campus police’s failure to respond was a violation of Title IX of the federal Civil Rights Act and state anti-discrimination laws. But the school says it wasn’t required to respond because Rowland wasn’t a student or employee of the school. There was also some question as to whether dating violence counts as gender discrimination under federal law.

Campus Investigations Under Title IX Shift with Politics

Until 2011, high schools and college campuses didn’t have much guidance on how to respond to reports of dating violence and sexual abuse happening on or around their campuses. Many assumed those behaviors were prohibited under federal law or state criminal codes, but enforcement was erratic. Then, the Obama administration sent out a “Dear Colleague” memo providing instructions on preventing gender discrimination and sexual harassment on campus and involving students. That standard included several protections for the victims of sexual assault and dating violence, including a lower standard of proof and prohibiting the use of face-to-face mediation that often perpetuates power dynamics in abusive relationships.

However, in November 2018, Education Secretary Betsy DeVos, a Trump appointee, rescinded that guidance. She issued new regulations narrowing the definition of sexual harassment, tightening reporting requirements, limiting investigations into off-campus behavior, and stripping many of the protections for victims. In announcing the regulations, DeVos claimed the changes were designed to balance the rights of victims and their accused perpetrators:

“Every survivor of sexual violence must be taken seriously, and every student accused of sexual misconduct must know that guilt is not predetermined. . . . We can, and must, condemn sexual violence and punish those who perpetrate it, while ensuring a fair grievance process. Those are not mutually exclusive ideas.”

However, these new rules created a gray area around the issue of dating violence. Under the 2018 regulations, Title IX only applies if the dating violence is “so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity.” Cari Simon, former director of the Congressional Victims’ Rights Caucus and Title IX lawyer told the New York Times that this narrower definition of sexual harassment was a deterrent to students reporting the danger:

“If we’re essentially saying to [] stalking and dating violence victims, ‘Sorry, this isn’t pervasive enough, severe enough or objectively offensive enough,’ they’re not going to come back.”

New Regulations Make Dating Violence on Campus Count as Gender Discrimination

In response to these concerns, DeVos’s Education Department has now issued another new rule, correcting some of the weaknesses created under the 2018 policy. These new rules specifically say that domestic violence, dating violence, and stalking are gender discrimination and trigger a school’s investigation obligations under Title IX. This supplements guidance specific to sexual assault.

Victims’ advocates are praising the new rule, saying it puts schools and universities on notice that they must take steps to train their staff and protect their students from harm on campus. Sage Carson, manager of Know Your IX, a victims’ rights advocacy group, told the New York Times:

“There’s still a lingering idea that dating violence is an interpersonal issue that two folks need to work on, something that just happens between men and women, rather than seeing it as a form of violence that has an impact on education.”

They would also help students like Lauren McCluskey and their parents when schools ignore their concerns. Ultimately, these tougher regulations could give victims advocates the tools they need to prevent more victims’ deaths when schools don’t take their reports of dating violence seriously.

At Eisenberg & Baum, LLP, we have a team of attorneys who know what to do when dating violence and sex abuse threaten students in high school or college. We work with students and parents to enforce their rights under Title IX as well as state and local laws, and will help you and your child and get the justice and compensation you need to move on. Contact us today to schedule a free consultation.

Union Accuses Airport Starbucks Franchise of Transgender Discrimination

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Transgender baristas in airports across the country are saying they face misgendering, the use of “dead names” and other transgender discrimination, all while wearing the logo of a popular progressive company: Starbucks. While the parent company set high standards for the treatment of LGBTQ and other minority workers, its franchisee, HMSHost, appears to be falling short of the mark. But is there anything the employees’ union can do about it?

Baristas Face Transgender Discrimination in Airport Starbucks

A number of baristas from airport Starbucks stores around the country are reporting that they are facing transgender discrimination by their managers up to the level of the franchise owners. Cora Noble-Bray, a barista at Portland International Airport said:

“I transitioned to a woman while working at Starbucks and while a lot of my coworkers picked up my new name and pronouns immediately, one lead in particular did not put any effort into changing. Being called by my old name and seeing it stay on my work schedule felt like my choice and my identity didn’t even matter to him or the company. The managers at HMSHost do not use my correct pronouns. They continually refer to me as he/him, even though I’m a trans woman… I’ve let them know what my new name is and the old name still shows up on my schedule. I can handle being misgendered by customers that I only see for two minutes. Our regular customers and airport employees have all been good about getting my new name and pronouns right. But when it’s my direct supervisor, it’s exhausting, and I genuinely dread coming in to work—so much so that I consider calling off and taking discipline. I never know when he’s going to say something. I feel like I always have to have my defenses up.”

Gigi Tolentino told a similar story of her time as a barista at the Honolulu International Airport:

“Within the first two years of working at HMSHost I was misgendered and discriminated against and it reached a point where enough is enough, it was when one of my managers ridiculed me in front of the passengers and coworkers by shouting out “sir, he’ll be right with you!” and pointing at me. She was laughing and smiling assuming that that was funny, but that moment was the most embarrassing moment of my life. At that moment I was embarrassed and insecure about me being a transgender woman. […] So I stood up for myself because I’m not going to let someone tell me I’m not valid as a human being.”

One manager is even reported to have said, “as long as she has a p***y I will call her a she” about a transgender male employee.

The complaints were part of a 20-page report by UNITE HERE, a labor union that represents 45,000 workers in the airport industry and 4,000 workers at licensed Starbucks stores nationwide. The report analyzed approximately 2,000 workers at 142 airport Starbucks stores and included surveys of over 300 workers. In addition to allegations of transgender discrimination, it called out findings that the surveyed employees:

  • Faced race-based pay discrimination with Black baristas earning $1.85 less than white baristas
  • Worked through Starbucks’ 2018 racial bias training shutdown
  • Face poverty and homelessness
  • Were not provided tuition assistance on a level that allowed them to attend college
  • Faced national origin discrimination in the form of being told to stop speaking their preferred language at work

Franchise Operator at Odds with Starbucks’ Policies for LGBTQ Workers

If seeing the words “transgender discrimination” and Starbucks in the same headline surprises you, you’re not alone. The Seattle-based coffee company is known for taking pro-employee positions on everything from equal pay to college enrollment. As it relates to the UNITE HERE report, Starbucks’ public statements promise:

  • 100% racial pay equity
  • Nationwide racial bias training that closed more than 8,000 stores in 2018
  • Policies that allow LGBTQ employees to use their preferred names on store documentation
  • Housing subsidies
  • 100% tuition coverage (with certain conditions)
  • Global commitments to hire 10,000 refugees by 2022

However, these public statements only apply to Starbucks’ corporate stores. The airport coffee shops like the one where Ms. Noble-Bray and Ms. Tolentino worked, are operated by a franchise owner, HMSHost. According to the UNITE HERE report, the franchisee is falling far short of Starbucks’ lofty goals. Gabriel Ocasio Mejias, a former HMSHost Starbucks barista at the Orlando International Airport, said:

“Starbucks corporate is very well known to be supportive of the LGBT communities… In this company, it’s the complete opposite. They suppress your uniqueness… It makes me kind of feel in a way that I’m going back into the closet, which is very unnerving to me.”

UNITE HERE has been trying to get HMSHost to address the transgender discrimination and other harmful practices happening in its franchise stores. However, HMSHost denies any discrimination is happening, and claims that the report is a “well-known tactic” to gain leverage and recruit new union members.

National Labor Relations Board Weakens Employees’ Power to Fight Discrimination in Franchise Companies

So far, UNITE HERE hasn’t been able to get Starbucks to weigh in on the dispute. That may have to do in part with changes to federal regulations regarding union workers in franchise businesses. Earlier this year, the National Labor Relations Board issued a new regulation that took effect on April 27, 2020. This regulation rolled back Obama-era protections for franchise workers and loosened the connection between a franchisor (like Starbucks) and the actions of its franchisee companies (like HMSHost).

Since 2015, franchising companies like McDonalds or Starbucks have been considered “joint employers” for workers at franchisee companies or contractors as long as they indirectly controlled employees’ work (such as directing franchisees to use a particular scheduling software). Under the new regulations, the parent company will not be liable for labor actions taken against employees of franchisees or contractors unless they have substantial, direct and immediate control over the employees. This includes control over employees:

  • Pay
  • Benefits
  • Hours
  • Hiring
  • Firing
  • Supervision
  • Scheduling practices
  • Working conditions

This frees parent companies like Starbucks from legal risk when their franchisees fail to live up to corporate employment standards. In the case of HMSHost, some of the very policies UNITE HERE are challenging show that Starbucks does not exercise the level of control to be considered a joint employer under the NLRB’s new regulations. In fact, should Starbucks put pressure on HMSHost to change its policies, it could expose the parent company to more litigation, making doing the right thing a costly proposition.

At Eisenberg & Baum, LLP, our experienced gender discrimination attorneys work with employees in unions in New York and across the country. We know how to make the most of union grievance processes, to protect LGBTQ and transgender workers and what your options are to get relief from your employer, even if you work for a franchise. Contact us to schedule a consultation at our office in New York City, or over the phone.

Are Misgendered Pronouns Gender Discrimination at Work?

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For transgender and nonbinary workers, a supervisor using the right name and pronoun can be a sign of affirmation and respect. But what if coworkers or supervisors refuse to refer to you in your preferred way? Are misgendered pronouns gender discrimination at work?

States Offer Gender-Netural IDs, No-Questions-Asked Gender Changes

Before 2017, every U.S. resident’s driver’s license or state ID said one or two things: M or F, Male or Female. Many states required complicated procedures, and even proof of surgery before transgender individuals would be allowed to change that M to F or F to M. But ideas of gender identity are changing quickly.

In July 2017, Oregon became the first state to issue gender X IDs. Washington DC followed soon after. Three years later, 14 jurisdictions have non-binary or gender-neutral options for their residents’ driver’s licenses or state IDs:

  • Oregon
  • Washington DC
  • Arkansas
  • Minnesota
  • Maine
  • Utah
  • Colorado
  • California
  • Indiana
  • Nevada
  • Vermont
  • Maryland
  • New Hampshire
  • Hawaii

In addition, several states have begun to allow residents to change the gender markers on their IDs simply by signing an affidavit, rather than providing invasive doctors notes and proof of medical procedures.

These movements are allowing transgender and non-binary individuals more freedom in adjusting their legal identity to match their personal gender identity. Trans* activists see this as a great step forward, and a signal that society is beginning to accept alternative genders.

Universities Use Stickers, Records to Let Students Identify Gender Pronouns

Following these changes to state laws, the first wave of non-gendered students are beginning to enroll in universities across the country. Respected institutions like Harvard often refer to students as Mr. or Ms. The addition of non-gendered students have put wrinkles into the system and revealed deeply held assumptions by many professors.

When Diego Garcia Blum started graduate school at Harvard last fall, he took his school-issued name placard and added his proper pronouns with a marker. He did that out of respect for another graduate student, Raven Graf, who is nonbinary and uses the pronouns they/them. Harvard’s John F. Kennedy School of Government, where Mr. Blum and Mx. Graf were enrolled has responded by providing clear stickers for the Winter 2020 semester with four pronoun options: He/Him, She/Her, They/Them, Ze/Hir.

Other universities have taken similar steps. New York University allows students to update class rosters with their preferred pronouns. The University of Minnesota enacted a pronoun policy allowing students to specify a name and gender that do not match their legal identities.

But these transitions have not always been smooth. Many pronoun protocols are voluntary “best practices” and some professors have chosen not to follow them.

Are Misgendered Pronouns Gender Discrimination at Work?

When this same behavior makes its way to the workplace, it can make everyday life difficult for transgender and nonbinary employees trying to express their true gender identity at work. When coworkers and supervisors ignore your requests and insist on using misgendered pronouns, it can quickly make you feel exposed and even unsafe.

Title VII and Misgendered Pronouns

Misgendered pronouns may be insulting, but it is not clear that on their own they would count as gender discrimination at work under Title VII of the federal civil rights act. Title VII does not explicitly protect against discrimination based on sexual orientation or gender identity. While many courts have said the protections apply, others have said they do not. The issue is currently pending before the U.S. Supreme Court. However, in that case the transgender worker was fired when she came out as a woman. It is not clear whether simply using the wrong pronouns could be so “severe” or “pervasive” that it creates a hostile work environment under federal law.

New York City Protects Transgender Workers

Even if misgendered pronouns are not gender discrimination under federal law, New York City’s Transgender Rights Law and New York State’s Human Rights Law may offer additional protections. The Transgender Rights Law explicitly requires employers to use the name, pronouns, and title a worker self-identifies, whether that matches their legal ID or not.

Gender-neutral IDs and nonbinary pronouns are going to be increasingly common among employees in New York City, statewide, and across the country. When employers are unable to keep up with the changes, it could result in gender identity discrimination and serious harm to nonbinary workers. At Eisenberg & Baum, we understand the impact misgendered pronouns can have on transgender and nonbinary employees. From our office in New York City, our employment discrimination attorneys help gender-nonconforming workers negotiate with employers and protect their rights. 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 misgendered pronouns and gender identity discrimination.