SCOTUS reverses decision to review transgender bathroom case

Yesterday, the Supreme Court reversed an earlier decision that would have heard the appeal of a 4th Circuit opinion granting a transgender boy the right to use the bathroom of his identified gender.

The decision comes on the heels of the Trump administration’s policy change [pdf], which revoked the Obama administration’s guidance that protected the bathroom rights of transgender students in public schools.

Federal judge takes NLRB to task for rules that protect racist and sexist workplace misconduct

Of all of the decisions the NLRB has handed down in the past eight years, those that let striking employees lob racists and sexist bombs at replacement workers crossing picket lines are the most offensive to me.

Consolidated Communications v. NLRB (D.C. Cir. 9/13/16) is one such case.

More compelling than the decision, however, is the concurring opinion written by Judge Patricia Millett, in which she calls on the NLRB to carry out its mission to protect the rights of all employees, not just those who happen to be walking a picket line. How can a picket line magically convert misconduct that is “illegal in every other corner of the workplace” into the “unpleasantries that are just part and parcel of the contentious environment and heated language that ordinarily accompany strike activity,” she asks? 

Ohio appellate decision sends working moms back to the 1950s

Employee claims her supervisor advised her not to apply for an open position because, “she is a single mother with kids and if [she] had to take time off work, it would jam [us] up for getting someone to cover the scheduling.”

Employee sues for gender discrimination. She wins in a landslide, right?

D.C. Office of Human Rights publishes best practices guide for employers on transgender rights

The District of Columbia Office of Human Rights, in connection with the National LGBTQ Task Force, recently published a 19-page best practices guide for employers on transgender issues in the workplace. The document, entitled, Valuing Transgender Applicants & Employees: A Best Practices Guide for Employers [pdf], when taken together with earlier guidance from the EEOC on transgender bathroom access and broader guidance from the EEOC on LGBT discrimination continues to signal that issue is one that you can no longer ignore.

Mom cannot sue employer for discrimination against her son, court says

Brittany Tovar claimed that her employer, Essentia Health, discriminated against her when her employer-sponsored medical insurance denied her son gender reassignment services and surgery.

In Tovar v. Essentia Health (D. Minn. 5/11/16), the court had little issue dismissing Tovar’s claims because the alleged target of the discrimination, her son, was not an employee protected by Title VII:

Transgender bathrooms is a solution in search of a problem

In the blogging world, when you snooze, you lose. Yesterday, my fellow bloggers were all over the EEOC’s publication of guidance on bathroom access for transgender employees:

• Eric Meyer’s Employer Handbook Blog: Not letting transgender employees use the restroom of their gender identity is sex discrimination 
• Phil Miles’s Lawffice Space: EEOC issues transgender employee fact sheet 
• Robin Shea’s Employment & Labor Insider: EEOC posts fact sheets on LGBT discrimination, transgender issues 
• Dan Schwartz’s Connecticut Employment Law Blog: Bathroom Access Rights Guaranteed By Title VII
• The Russ Runkel Report: EEOC & OSHA on transgender bathrooms access

Here’s the bottom line.

EEOC proposed significant pay equality changes to EEO-1

If your company has 100 or more employees, you should be very familiar with the federal government’s EEO-1 survey. The EEOC requires that you annually complete and file this form, which requests demographic on your employees, broken down by protected classes and job categories.

Last Friday, the White House made a game changing announcement about the information it proposes you submit in your EEO-1 filings.

Appellate court reinstates sex-discrimination claim of transgendered worker

A federal appellate court reinstated the sex-discrimination claim of a transgender auto mechanic. Credit Nation Auto Sales fired Jennifer Chavez less than three months after she notified it of her gender transition.

The employer argued that it fired her because it caught her sleeping in a customer’s vehicle while on the clock. Even though the court concluded that the employer’s reason was “true and legitimate”, it nevertheless reversed the trial court’s dismissal of the sex-discrimination claim.

EEOC stakes its turf on the issue of sexual orientation discrimination

As I thought of which David Bowie song to support today’s effort, the one that leapt to mind is “Space Oddity” (I was going to use “Changes”, but Dan Schwartz already claimed it for his post yesterday).

To me, it is a complete oddity that, in the 2016, it is still statutorily legal for an employer to fire an employee because of that employee’s sexual orientation. On this point, the EEOC and I see eye-to-eye. The difference, however, is that the EEOC is in a position do so something about it. What it is not doing is sitting around and waiting for Congress to do something about it.

What can go wrong when co-workers date? A lot.

True confession time. I watch The Voice. It’s not like it’s at the top of my DVR, but, my remote always seem to stop on NBC between 8 and 10 on Monday and Tuesday nights. (My pick to win this season: Amy Vachal). So, when I heard that Team Shelton and Team Gwen had formed one team outside of work, I thought, “What a great opportunity to write a blog post on office romances.” (This is how the mind of blogger works).

What can do wrong with office romances? As it turns out, a lot. So, in the spirit of The Voice, here’s 10 reasons co-workers shouldn’t turn their chairs for each other.

Leave policies should apply equally across genders … but must they?

The New York Times reports that CNN has settled an EEOC charge brought by a former correspondent, who claimed that the company’s paid parental leave policy discriminated against biological fathers.

At the time Mr. Levs’s daughter was born, in October 2013, CNN offered 10 weeks of paid leave to biological mothers and the same amount to parents of either gender who adopted children or relied on surrogates. By contrast, the company offered two weeks of paid leave to biological fathers.

Mr. Levs, whose daughter was born five weeks prematurely, already had two young children. He said he felt he needed to spend more time at home sharing in caregiving responsibilities with his wife. He filed his charge when the company refused to grant him more paid time off.

Optically, there is a lot of appeal in a male employee claiming discrimination when a female employee receives more paid leave after the birth of a child. On its face, it certainly looks discriminatory. But, is such a policy really sex discrimination?

There is one key difference between women and men when they welcome a new-born child. Women give birth; men don’t. A women is not medically ready to return to work the day following childbirth; a man is. Indeed, current medical guidelines suggest that women take six weeks off from work following a vaginal delivery, and eight following a C-section. Adoptions also provide different challenges to a couple, including adjusting to new family member without the buffer of a nine-month pregnancy.

While employers should offer equal leave allotments to men and women, before we jump the legal gun we need to consider that there might be an explanation other than discrimination that justifies different treatment between the sexes.

Be conscious of inequities when gauging litigation

Four years ago, in Wal-Mart v. Dukes, the U.S. Supreme Court held that it was inappropriate to certify a nationwide class of 1.5 million female Wal-Mart employees allegedly denied pay and promotions because of a corporate-wide "policy" of sex discrimination. SCOTUS’s Dukes decision ended a decade of litigation over the propriety of the attempted nationwide class action.

More than a year after the Dukes decision, Cheryl Phipps, Bobbi Millner, and Shawn Gibbon launched a similar lawsuit in federal court in Tennessee, but instead seeking a region-wide sex-discrimination class. Wal-Mart alleged that the claims, more than a decade old, were time barred. Yesterday, in Phipps v. Wal-Mart Stores [pdf], the 6th Circuit formally disagreed.

For civil procedure geeks (like myself), the case is a fascinating read on the theory of statutes of limitations and equitable tolling. That analysis, however, is well beyond the scope of what I hope to accomplish with my little slice of the Internet.

Here’s the practical take-away. Employers favor certainty, knowing that if an employee fails to file a lawsuit 90 days after the EEOC issues its right-to-sue letter, for example, the employee waived the right to assert federal discrimination claims. Courts, however, favor equities, and try to avoid inequitable results. Sometimes, these ideals clash. When this happens, employers cannot assume victory, and should brace themselves accordingly.

Transgender rights take center stage

It’s been a big week for the rights of transgender Americans.

• Caitlyn (née Bruce) Jenner had her coming out party on the cover of Vanity Fair and become the quickest person to reach 1 million followers on Twitter, in less than four hours, besting President Obama’s record from two weeks ago.

• The EEOC published a guide addressing the rights of LGBT employees working in the federal sector [pdf], and continues to litigate cases under Title VII’s sex-discrimination prohibitions on behalf of transgender employees.

• OSHA published a statement of “best practices” for bathroom access for transgender employees [pdf], clarifying that employees should be entitled to use the bathroom of the gender with which they identify, and that no employer should require an employee to use a specific gender’s bathroom, or a segregated transgender-only bathroom facility.

While we wait for the law the catch up to society’s opinion on LGBT rights (i.e., same-sex marriage rights and official statutory extension of Title VII’s protections to LGBT employees), our federal agencies are doing the best they can to modernize these laws for us. If you are still discriminating against LGBT employees, it’s time to stop. You are officially behind the times. It was not that long ago that LGBT rights were a joke. Now, we are on the verge of a breakthrough. Are you going to ride the wave, or hold onto the jam of the door that Caitlyn Jenner just kicked down kicking and screaming. The choice, for now, is yours, unless you run afoul of the EEOC, OSHA, or a court, each of which is doing is best to do what Congress has, thus far, refused.

Sex stereotyping as transgender discrimination

Last week the EEOC settled, for $150,000, one of its first cases alleging sex discrimination against a transgender employee. This week, another transgender employee filed a remarkably similar lawsuit in federal court in Louisiana. The key difference between the two cases? The Louisiana employer had a formal policy against employees presenting at work as a gender other than their birth gender:

Title VII does not (yet) specifically identify “sexual orientation” as a protected class. But, sexual stereotyping has been illegal for decades. Keep this in mind, and keep an open mind, if your employee shows up as John on Friday and Joan the following Monday.

Company expands leave benefits for working mom, but what about the dads?!

The Washington Post’s On Leadership blog reports that global telecomm company Vodafone is establishing a new global maternity leave policy for all 30 of its operating companies: 16 weeks of paid maternity leave, plus a 30-hour work week with no reduction in pay for the first six months after retuning from maternity leave.

This policy is very generous, and, for its American operations, is a big step in the right direction towards aligning American maternity leave policies with those around the world (something on government has been unwilling, or unable, to accomplish). However, in rolling out this policy, Vodafone should not forget about the dads. We want flexibility too. A policy that offers parental leave, or reduced work schedules, other family-related benefits to women but not to men violates Title VII on its face.

Gender-neutral policies (those that extend the same benefits to moms and dads) are not safe from legal scrutiny. These policies must be neutral in their drafting and their application. An employer cannot overtly or subversively punish a dad who avails himself of such a benefit out of some stereotyped notion that family issues are the woman’s responsibility. Sexual stereotyping is illegal sex discrimination under Title VII.

The bottom line—moms and dads deserve to have careers and families. Balancing the two is hard enough without employers piling on.

For more on this important issue, I cannot more highly recommend reading An Apology to Dads Working, Too?, on Rob Schwartz’s Dad Working blog.

Why performance reviews matter in employment litigation

According to Employment Law 360, a federal judge has indicated that he will likely deny the motion for summary judgment Deutsche Bank intends to file seeking the dismissal of a sex discrimination lawsuit brought by one of its former vice presidents.

The lawsuit alleges that bank “mommy-tracked” the plaintiff, a 14-year employee with a strong performance history, and ultimately fired her. Her lawyer argued to the court that her strong history of performance reviews demonstrates pretext in the bank’s decisions regarding her performance. In response to the bank’s counter-arguments about her performance (which included an argument that her positive reviews resulted from an “easy grader”), the judge responded, “It’s all sounding really fact-y to me.”

Folks, performance reviews matter. They not only matter in managing your employees during their employment, but they also matter in defending lawsuits about their employment. If you plan on terminating an employee on performance, you need to have the goods to back it up. What should you be doing before the termination? Checking the reviews to make sure the paper trail supports the poor-performer argument. If it doesn’t, you best have a solid explanation as to why. Otherwise, your termination will start to smell not only “fact-y”, but also possibly “pretext-y.” The last thing you want in a discrimination case is for your decision to have the scent of pretext.

Putting paternity leave on equal footing with maternity leave, #hrintelchat

This afternoon, from 3 – 4 pm, EST, I, along with my friend, Jeff Nowak, will be hosting a TweetChat for Thompson Information Services on the “Evolving Rights of Pregnant Employees in the Workplace.” Follow us on Twitter at #hrintelchat, and tweet your questions or comments to @ThompsonHR, @jeffreysnowak, and @JonHyman. We’ll be discussing workplace right and accommodations of pregnant employees. More information is available here.

While our TweetChat will focus on the rights of pregnant women, females aren’t the only ones that have workplace rights when it comes to new babies. According to the New York Times, even though many men have the same right to paternity leave that their female counterparts have to maternity leave, few exercise that right out of fear and stigmatization.

Paternity leave is perhaps the clearest example of how things are changing — and how they are not. Though the Family and Medical Leave Act of 1993 requires companies with more than 50 employees to provide 12 weeks of unpaid leave for new parents, it requires no paid leave. The 14 percent of companies that do offer pay … do so by choice. Twenty percent of companies that are supposed to comply with the law, meanwhile, still don’t offer paternity leave…. And almost half the workers in the United States work at smaller companies that are not required to offer any leave at all.

Even when there is a policy on the books, unwritten workplace norms can discourage men from taking leave. Whether or not they are eligible for paid leave, most men take only about a week, if they take any time at all. For working-class men, the chances of taking leave are even slimmer.

Here are a few “don’ts” to keep in mind in managing new dads in your workplace.

• Don’t forget the men in your workplace when you’re crafting leave policies.
• Don’t deny leaves to new dads doling out post-childbirth leaves of absence.
• Don’t punish those that use those policies and leaves, such as limiting promotions, opportunities, or raises.
• Don’t apply unconscious stereotypes about the dedication or loyalty of men who take leaves of absence for familial responsibilities.

Sexual discrimination vs. sexual favoritism

The Employment Matters blog recently posted about a 10th Circuit case that upheld the dismissal of a sex discrimination case that alleged sexual favoritism as its lynchpin.

What is the difference between sexual discrimination and sexual favoritism? The former is illegal, while the latter isn’t.

In the words of one federal appellate court:

Title VII does not, however, prevent employers from favoring employees because of personal relationships. Whether the employer grants employment perks to an employee because she is a protegé, an old friend, a close relative or a love interest, that special treatment is permissible as long as it is not based on an impermissible classification.

Or, in the words of another federal court:

As the numerous cases finding that preferential treatment for a paramour does not constitute gender discrimination make clear, nothing about the favoritism … had to do with the protected characteristic of gender. Instead, the alleged favoritism was based only upon a special relationship between certain staff members and managers. All other staff members, whether male … or female…, were equally negatively affected by the purported favoritism.

This is not to say that playing sexual favorites in the office is a good idea. It’s far from it. For starters, is morale crushing for employees to believe (correctly or incorrectly) that they are being treated differently simply because they are not sleeping with or otherwise romantically attached to the boss. It also leads to office gossip and potential conflicts of interest.

Also, lots can go wrong when an office romance goes south. For example, what if, after the relationship ends, one says to the other, “I can do something to your job!”? Or, worse, the threats could be followed by extortion or blackmail.

I will not tell you that employers should forbid their employees from dating. The heart will go where it wants to go. If your employees want to date (or do more), they will, with or without a policy forbidding it. Instead, use workplace romances as an opportunity to educate your employees about your anti-harassment policies and programs.

• Train your employees about what is, and is not, appropriate workplace conduct between the sexes.
• Remind employees that the company expects professional behavior at all times, regardless of the personal relationships (past or present) between employees.
• Advise employees that unprofessional behavior is not tolerated, and will lead to discipline, up to, and including, termination,, which includes such behavior during and after romantic or sexual relationships.

Focusing on conduct (and misconduct) instead of the relationships itself provides your employees the tools to avoid the potential problems that can arise from these relationships, which, in turn, will help any organization avoid the litigation expenses these problems can cause. And we can all agree to love that idea.

The best defense to a discrimination claim is…

Wilson v. Chipotle Mexican Grille (6th Cir. 9/17/15) [pdf] is an unusual or distinct case, yet it teaches employers an important lesson about how to win a discrimination case.

Catherine Wilson, an African-American female, worked as a part-time crew member at a Cincinnati Chipotle. Her reviews listed her as a “low performer,” and her supervisors counseled her about her “attitude.” Wilson requested, and was denied, a 10-day leave of absence to go to Disney World. Because of her insistence for the time off, however, her manager took her off the schedule for those 10 days and considered her to have quit her job.

When she was fired after attempting to work after she “quit,” she sued the restaurant for race and sex discrimination.

The court had little trouble dispensing with the employer’s claim that Wilson had quit her job. Whether or not she requested time off, she returned to work the next day with the intent to work. Those actions do not demonstrate a voluntary resignation.

Regardless, the employer still won the case because Wilson could not show that she was replaced by someone outside the protected classes.

Wilson offered no evidence that Chipotle replaced her with white or male employees. To the contrary, Wilson’s part-time slot was picked up by three African-American females and one African-American male. The Clifton branch work force was 75% African American during the relevant period, and Wilson offers no evidence that this changed at the time.

So, what’s the best defense to a discrimination claim? Hire others in the same protected group. If your workplace is three-quarters black, it become very hard for a black employee to claim disparate treatment. If you replace that black, female employee with three other black females, and a black male, it’s case over.

An African-American, female employee cannot show discrimination when you replace her with another African-American female. All the more reason to maintain a diverse workforce. And, an important point to consider if you need to replace a fired employee that you think might turn around and sue.

Orange is the new sexual harassment lawsuit

Orton-Bell v. State of Ind. (7th Cir. 7/21/14) [pdf] concerns allegations of sexual harassment levied by a substance-abuse counsel at an Indiana maximum security prison against her co-workers and superiors. The allegations break down into two categories:

• Other employees and correctional officers at PCF were having sex on Orton-Bell’s desk. When she complained, a supervisor told her he didn’t care as long as offenders were not involved. Another co-worker suggested she clean her desk every morning.

–and–

• Orton-Bell was called “Cinderella” and “Princess” by male employees.
• She received excessive pat-downs from female correctional officers. 
• On one occasion, Orton-Bell was required to remove her sweater in the shakedown area so that the sweater could be sent through a scanner. This caused Orton-Bell’s spaghetti-strap camisole tank top to be exposed to male employees and offenders.
• Male employees made comments about how the pat-downs were “almost like sex for them.”
• Orton-Bell was not permitted to wear jeans, but male employees were.
• Male employees engaged in a barrage of sexual banter with Orton-Bell in person and via email, including a comment from the male superintendent that “her ass looked so good that it would cause a riot.” 

The court concluded that the sex-on-desk allegations could not support a claim for sexual harassment because she could not prove the conduct, while egregious and offensive, was because of her sex.

The notion that night-shift staff had sex on her desk because she was a woman is pure speculation.… If there were evidence that the night-shift staff were using her office because she was a woman, and her supervisors were indifferent, that would be enough. If there was evidence that night-shift staff similarly used a man’s office, and her supervisors intervened in that circumstance but not in her circumstance, that would be enough. There is neither. Her supervisors’ insensitive and inattentive responses were callous mismanagement; but absent evidence that this inaction was based on her sex, it did not violate Title VII.… 

The conduct was certainly sexual intercourse on her desk, but that does not mean that night-shift staff had sexual intercourse on Orton-Bell’s desk because she was of the female sex. There is no evidence to indicate that, had her conveniently private and secure, but accessible, office belonged to a man, it would not have been used in the same manner. Accordingly, this incident, while egregious, does not support a hostile work environment claim. 

The remaining allegations, however, painted a different story.

The constant barrage of sexually charged comments, however, was clearly pervasive, offensive, and based on Orton-Bell’s sex.… 

The record does reveal an instance where, in an email conversation with a co-worker named Bruce Helming, she participated in vulgar banter. However, while that may lead a jury to conclude that she was not subjectively offended by the environment, one private conversation via email is not enough for us to conclude, as a matter of law, that she was not subjectively offended by the many other public, unwelcome sexually charged comments in the environment.

What does this case teach us?

1. Apparently, after-hours sex on workplace desks between co-workers is a real thing.
2. “Because of sex” has real teeth to it. No doubt, the desk-sex is gross and offensive. Yet, Orton-Bell could not offer any evidence that the use of her desk was for any reason other than the fact that it was located in a private office. Absent evidence that the use of her desk was sex-based, that allegation could not support a harassment claim.
3. An employee’s participation in some sex-based joking can, under the right circumstances, show that the work environment was not subjectively hostile. One email containing vulgar banter with a co-worker, however, likely is not enough. 

Let me leave you with this thought. If your workplace is sexually charged, it will catch up with you eventually. I cannot fathom the difficulties managing employee behavior in a maximum security prison. Nevertheless, Title VII does not stop at the door just because the workplace is inherently hostile. 

[Hat tip: Indiana Law Blog, via Andrew Cohen]