Tag: Title VII

August 16, 2018

Preventing Federal Retaliation Claims

According to EEOC statistics, retaliation is the most common basis for discrimination or harassment claims against employers. Retaliation occurs when an employer takes an adverse employment action against an employee for filing a complaint or otherwise participating in protected activity. Adverse actions include firing, giving undesirable assignments, and harassment. A retaliation claim can be asserted even if the original discrimination or harassment claim turns out to be unfounded, so long as the claim was made in good faith.

In addition to preventing lawsuits, employers should avoid retaliation because of its harmful effects on the workplace. Employees often do not report perceived harassment or discrimination because they fear reprisals from supervisors or other employees. If employees don’t report and potential issues remain unresolved, it can harm productivity and produce higher turnover. If employees see that their employer does not tolerate retaliation, they are more likely to report concerns.

Retaliation claims can arise in many contexts:

Title VII

Under Title VII of the Civil Rights Act of 1964, covered employers may not discriminate against employees on the basis of race, color, religion, sex, or national origin or by their association with others who are of a particular race, color, religion, sex, or national origin. Therefore, if an employee files a discrimination claim, employers should ensure that they suffer no adverse employment action because of the filing.

Disability Accommodation

Under the Americans with Disabilities Act, “no person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.” This means employers cannot retaliate against employees for requesting reasonable accommodations, such as a disabled cashier asking if he can sit on a stool while working.

Sexual Harassment Investigation

Sexual harassment cases are ripe for potential retaliation because the alleged harasser is often higher in the chain of command than the alleged victim. Employers should ensure that employees who feel they are being harassed have multiple avenues of reporting their concerns to management.

Retaliation for Contesting Terms of Employment

Many other federal laws and agencies afford employees protection against retaliation.

Under the National Labor Relations Act, it is illegal for employers to retaliate against employees for filing charges with the NLRB or participating in that agency’s investigations or proceedings.

The U.S. Department of Labor’s Wage and Hour Division enforces the Fair Labor Standards Act. This law requires employers to pay minimum wage and overtime. It also prohibits retaliation against employees’ efforts to assert their rights under the FLSA.

The Occupational Safety and Health Administration (OSHA) enforces various “whistleblower” provisions. These include protections from retaliation for employees raising workplace safety or health concerns.

What Constitutes Retaliation?

U.S. Supreme Court cases have clarified what the scope of adverse employment actions can constitute retaliation if they are in reaction to protected activity. This includes retaliation for oral or written complaints. The standard is whether the employer’s response would deter a reasonable employee from engaging in protected activity. Examples include:

● Strongly opposing a promotion or denying a raise
● Denying training or mentorship opportunities
● Poor performance reviews
● Exclusion from meetings or projects
● Changing shifts or work assignments

Claims of retaliation can arise even after the employment relationship has ended. Negative job references can constitute retaliation if an employer gives them because the former employee made a complaint. Refusing to provide a reference can also be retaliation, as can informing a potential future employer of protected activity. For example, the Supreme Court found retaliation for requesting disability leave when an employer described a former employee’s leave for “medical issues” in a job reference.

Retaliatory references are unlawful regardless of whether they affect the potential employer’s decision. However, whether the employee obtains the job may reduce the monetary relief available to the employee. To reduce the risk of liability, many employers adopt a neutral reference policy. By policy, these employers only give the dates of employment and final job title. Employers with these policies must apply them consistently and equally.

Zone of Interests

Adverse employment actions can be unlawful even if they are not directed against the employee who claims retaliation. The Supreme Court looks at whether the employer’s retaliatory conduct affects the employee’s “zone of interests.”

The “zone of interests” includes family members. For instance, the Supreme Court held that an employer unlawfully retaliated by terminating the husband of an employee who filed a charge of sex discrimination. The Supreme Court has not clarified whether the “zone of interests” includes friends. But it has ruled out mere acquaintances.

Conclusion

Employers must train supervisors and managers to avoid retaliation. These employees must know that no one can retaliate throughout or after an investigation. During an investigation, employers should inform participants of the company’s retaliation policy and encourage them to report perceived retaliation. If an employee alleges retaliation, the employer should conduct another investigation into the claim.

March 21, 2018

Association Discrimination in Employment

Most employers know they can’t discriminate against employees based on the employees’ own legally protected characteristics. But they may not realize that the same laws often also prohibit “association discrimination,” or “relationship discrimination.” In other words, employers can’t discriminate based on an individual’s association with someone in a protected class.

Forms of Association Discrimination

The employment discrimination laws don’t always expressly identify what forms of association discrimination they proscribe. The courts have recognized forms of this protection by applying more general aspects of the laws.

An employee may be able to claim harassment or discrimination based on:

a relative’s disability;
open association with or marriage to someone of a different race;
being a parent or caregiver to children; and
the protected activities of a relative.

Association Discrimination Under the ADA

The Americans with Disabilities Act (ADA) is one law that contains express provisions about association discrimination. The ADA covers all employers with at least 15 employees.

The ADA provides that no employer may “discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”

Among the forms of discrimination it expressly prohibits is “excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.”

The ADA requires no familial relationship for an employee to receive this protection. The protection depends on whether the relationship of whatever type motivated the employer’s action.

Association discrimination does not afford all of the same protections under the ADA as it does to an employee who personally has a disability. Most notably, employers do not have to provide accommodations to employees (or applicants) based on the disability of a relative.

Association Discrimination Based on Race

Title VII of the Civil Rights Act of 1964 prohibits employers with 15+ employees from discriminating on the basis of race, color, sex, religion, and national origin. Unlike the ADA, Title VII does not contain any specific provisions about association or relationship discrimination. However, many courts have recognized such protections regarding race.

Here are some examples of actual cases where a court recognized a theory of racial association discrimination:

White man alleged he was fired because of his marriage to a black woman.
White woman alleged she lost her job because the employer disapproved or her social relationship with a black man.
Employee alleged that employer reacted adversely to him because his race differed from his daughter’s.

Caregiver Discrimination

Title VII doesn’t identify “caregivers” as a protected characteristic. But the EEOC and some courts have applied the law to provide employees rights to raise children.

Most of these cases have involved women claiming they were denied employment opportunities for having or wanting to have children. In a 2009 decision, the U.S. Court of Appeals for the First Circuit summarized: “In the simplest terms, these cases stand for the proposition that unlawful sex discrimination occurs when an employer takes an adverse job action on the assumption that a woman, because she is a woman, will neglect her job responsibilities in favor of her presumed childcare responsibilities.”

The EEOC has consistently taken this position, which it has described in assorted guidance documents.

Other Bases for Association Discrimination Claims

A few appellate courts have ruled that Title VII prohibits association discrimination regarding each of the law’s protected characteristics. Most recently, the U.S. Court of Appeals for the Second Circuit (which covers Connecticut, New York, and Vermont) ruled, “we now hold that the prohibition on association discrimination applies with equal force to all the classes protected by Title VII . . . .”

The Second Circuit made this pronouncement through a February 26, 2018 decision in which the court ruled that Title VII prohibits sexual orientation discrimination through its general inclusion of sex as a protected characteristic. You can learn more about that decision in an earlier post.

Retaliation by Association

In 2011 the U.S. Supreme Court ruled that an employee may sue his employer for retaliation under Title VII claiming that he had been fired because his fiancée had filed a sex discrimination charge against their employer.

Before this decision, many courts had concluded that Title VII’s retaliation protections only applied to the persons who personally engaged in protected activity. For example, the person who has filed a discrimination complaint. The Supreme Court, however, advised that “Title VII’s antiretaliation provision prohibits any employer action that well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”

On that standard the Court continued: “We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiance would be fired.”

Employer Responsibilities

Many of the legal details in this area remain murky. The Supreme Court has not weighed in recently on most of these questions. It is not certain how it would rule in these cases today. Regardless, most employers don’t want to be in the position of finding out directly. Accordingly, it is best to avoid any appearance of discrimination, whether based directly on an employee’s characteristics or those of their relatives or others with whom they associate.

Employers should also be aware of the Genetic Nondiscrimination Act (GINA), which likewise applies to employers with 15+ employees. Among other things, GINA prohibits discrimination in employment based on an individual’s family medical history. For more, read Don’t Forget GINA.

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March 13, 2018

Accommodating Religious Beliefs in the Workplace

Most U.S. employers are legally prohibited from discriminating in employment based on individuals’ religious beliefs. Unlike most other employment discrimination protections, this aspect of employment discrimination law further requires employers to accommodate employees’ sincerely held religious beliefs.

Applicable Laws

Title VII of the Civil Rights Act of 1964 is a federal law that prohibits employment discrimination because of race, color, religion, sex, or national origin. Under Title VII, employers generally may not take adverse employment action against applicants or employees based on these characteristics. The law disallows both intentional and unintentional discrimination, but does not require affirmative action. However, it does compel employers to provide reasonable accommodations based on employees’ religious beliefs.

Title VII does not apply to religious organizations regarding the employment of individuals of a particular religion. Courts have limited this exception only to organizations whose “purpose and character are primarily religious.” Even where this exemption applies, it only affects hiring and firing decisions. Once a religious organization hires employees of different religions, they cannot discriminate against them regarding pay, benefits, and other similar conditions of employment.

Title VII only applies to employees with at least 15 employees. Many states have laws encompassing religious discrimination and accommodations that apply to smaller employers. For example, the New York State Human Rights Law applies to employees with as few as four employees.

This article focuses on Title VII’s religious accommodations requirements. Similar state laws often have comparable rules. But some will vary in ways that may be relevant to any particular situation.

Sincerely Held Religious Beliefs

Title VII defines religion to include “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.”

A religion does not have to be well-recognized or observed by many people to qualify an employee for Title VII protection. EEOC compliance guidance states that “religion” includes “religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others.” Religious beliefs can even include non-theistic beliefs.

No single rule determines whether an individual sincerely holds a religious belief. Some factors that might undermine asserted sincerity include whether the:

employee has behaved markedly inconsistent with the professed belief;
requested accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons;
timing of the request is suspect; and
employer otherwise has reason to believe the accommodation is not sought for religious reasons.

The requirement that a religious belief be “sincerely held” only applies regarding religious accommodations.

Religious Accommodations

Accommodations may include any adjustment to the work environment that will allow the employee to comply with their religious beliefs. Requests often relate to work schedules, dress and grooming rules, or religious expression or practice while at work.

The employee must initiate a request for accommodation by notifying the employer of the need for adjustment of work conditions due to a conflict with their religious beliefs. The employee must also explain the religious belief to the employer. The employer may seek additional information. But it cannot go so far as to discriminate against the employee by overly burdening them based on the request.

As with requests for accommodations based on disabilities, employees are only entitled to “reasonable accommodations” that do not impose “undue hardship” on their employer.

To show undue hardship in this context, the employer must identify more than “de minimis” costs of providing the accommodation. The EEOC’s website suggests: “An accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work.”

Both reasonableness and undue hardship are measured on a case-by-case basis.

Handling Religious Accommodation Requests

Employers (through their managers) must be conscientious upon receiving a request for a change in work conditions related to religious beliefs. Ideally, there should be a procedure in place for receiving and processing these requests. Any sign of hostility toward a request may alone risk a claim of harassment or discrimination, even if no accommodation is due.

At the same time, employers need not automatically grant every request by an employee tied to a religious belief. Some may be unreasonable. Others may not be premised on a sincerely held religious belief. Still others may create an undue hardship. But all requests should be handled carefully so these criteria can be considered and weighed properly.