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The split among appeals courts over whether Title VII of the Civil Rights Act of 1964 prohibits sexual orientation discrimination deepened Feb. 26, as the 2nd U.S. Circuit Court of Appeals ruled that it does. The decision makes it likely that the Supreme Court ultimately will have to rule on the issue, said Michelle Phillips, an attorney with Jackson Lewis in White Plains, N.Y.
Two appellate courts now agree with the Equal Employment Opportunity Commission’s (EEOC’s) position that Title VII protects against discrimination based on sexual orientation.
“Claims of sexual orientation discrimination are increasingly being litigated,” said Sam Schwartz-Fenwick, an attorney with Seyfarth Shaw in Chicago. “[A]n increasing number of courts are finding that such claims can be brought under Title VII, the law remains in flux. This uncertainty will continue until the Supreme Court addresses the issue or Congress passes clarifying legislation.”
He recommended that employers increase their sensitivity to issues related to sexual orientation in the workplace during this period of uncertainty.
Phillips noted that 22 states plus the District of Columbia prohibit sexual orientation discrimination.
Fired Gay Skydiver Sues
In the 2nd Circuit case, a skydiving instructor sued his former employer, alleging he was fired from his job after he revealed to a female customer that he was gay. He told her this to calm her worry about being strapped tightly to him during the jump. Her boyfriend complained to the employer following this disclosure and alleged that the skydiver touched her inappropriately, and the instructor was discharged. He alleged sex discrimination under Title VII, asserting that he was fired because he failed to conform to male sex stereotypes and because he was gay.
The plaintiff died in a skydiving accident, but his estate continued with the claim. The district court dismissed his Title VII claim. It held that the plaintiff had failed to show gender stereotyping under Title VII based on his sexual orientation. In addition, it noted that prior case law in the 2nd Circuit held that Title VII did not prohibit discrimination based on sexual orientation.
2nd Circuit Changes Course
During oral arguments before the 2nd Circuit in this case, the EEOC advocated for a broad reading of Title VII that encompassed sexual orientation. But the Justice Department argued that Title VII’s prohibition on sex discrimination did not extend to claims of sexual orientation discrimination, Schwartz-Fenwick noted.
The 2nd Circuit reversed, overruling prior case law and determining that sexual orientation should be treated as a subset of sex discrimination for several reasons:
The 2nd Circuit also observed that the EEOC and the 7th Circuit had reversed their previous views that Title VII did not bar sexual orientation discrimination, Schwartz-Fenwick noted.
But in 2017, the 11th Circuit held that Title VII did not extend to sexual orientation, he observed. The Supreme Court declined to review the 11th Circuit Court’s decision in December 2017.
The other federal appeals courts—namely the 1st, 3rd, 4th, 5th, 6th, 8th, 9th and 10th Circuits—have also held that sexual orientation is not expressly covered by Title VII, said Sean Crotty, an attorney with Honigman in Detroit. The Supreme Court may want to see more recent opinions from the circuits on the issue before granting review, he said.
The 2nd Circuit encompasses Connecticut, New York and Vermont.
Late yesterday (4/4/17), the 7th Circuit Court of Appeals became the first federal court of appeals in the nation to rule that sexual orientation claims are actionable under Title VII. Their decision opened the door for LGBT plaintiffs to use Title VII to seek relief for allegations of employment discrimination and retaliation.
The April 4th ruling is important to employers because it broadens the class of potential plaintiffs who can bring workplace claims against them, and will require employers to ensure fair and equal treatment to all applicants and workers regardless of their sexual orientation (Hively v. Ivy Tech Community College).
The initial aim of Title VII of the Civil Rights Act of 1964 was to protect employees from race discrimination in the workplace. Just before it was enacted, however, Congress added a provision prohibiting discrimination based on “sex.” Initially, federal courts took the position that “sex” should be interpreted narrowly.
However, over the years, plaintiffs have sought a much broader interpretation of what should be covered as sex discrimination. Following the landmark 2015 Supreme Court decision which made same-sex marriage legal across the country, federal courts have grappled with determining which types of claims are actionable under the “sex” provision of Title VII. Meanwhile, the Equal Employment Opportunity Commission (EEOC) issued a July 2015 administrative decision ruling that “sexual orientation is inherently a ‘sex-based consideration’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII” (Baldwin v. Foxx).
Although this decision involved a federal employee and was only binding on federal employers, other lower federal courts have discussed the rationale behind the EEOC’s conclusion and seemed ready to adopt the same approach. Indeed, on November 4, 2016, the U.S. District Court for the Western District of Pennsylvania agreed with the EEOC and held that sexual orientation falls within the protection of Title VII (EEOC v. Scott Medical Center). However, no federal appellate court went that far – until now.
Kimberly Hively began working as a part-time adjunct professor for Ivy Tech Community College in South Bend, Indiana in 2000. She worked there for 14 years until her part-time employment contract was not renewed in 2014. During her employment, she applied for six full-time positions but claims never to have even been offered an interview, even though she said she had all the necessary qualifications and had never even received a negative evaluation.
Hively filed a federal lawsuit alleging sexual orientation discrimination under Title VII, and in 2015, the trial court dismissed her case. She appealed to the 7th Circuit Court of Appeals (which oversees federal courts in Illinois, Indiana, and Wisconsin), which initially agreed with the lower court by upholding the dismissal of her claim in July 2016.
The three-person panel of judges indicated that it had no choice but to deny Hively’s claim after reviewing a string of cases stretching back almost 40 years from across the country. The panel concluded that no other federal appellate court had decided that sexual orientation discrimination is covered under Title VII. The judges noted that we live in “a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act,” but indicated they were all but powerless to rule otherwise absent a Supreme Court directive or a congressional amendment to Title VII.
In October 2016, the full collection of 7th Circuit judges set aside the ruling and agreed to re-hear the case en banc, which means all the judges would hear the case together. Late yesterday, the en banc panel issued a final ruling overturning its initial decision by an 8 to 3 vote and breathing new life into Hively’s case. More importantly, however, the 7th Circuit created a new cause of action under Title VII for other LGBT employees in Illinois, Indiana, and Wisconsin.
In the opinion, drafted by Chief Judge Wood, the court concluded that “discrimination on the basis of sexual orientation is a form of discrimination” and that it “would require considerable calisthenics” to remove the “sex” from “sexual orientation” when applying Title VII. In addition, the court noted that efforts to do so had led to confusing and contradictory results.
In the end, the court concluded that the practical realities of life necessitated that it reverse its prior decision. It remanded Hively’s case back to the trial court for a new hearing under this broad new standard.
Employers in Illinois and Wisconsin are already subject to state laws protecting private workers based on sexual orientation, so yesterday’s decision should simply reaffirm their commitment to ensuring fairness and equality for these employees. For private employers in Indiana, however, the time is now to take proactive steps to ensure sexual orientation is treated the same as any other protected class – this includes reviewing your written policies, handbooks, training sessions, workplace investigations, hiring methods, discipline and discharge procedures, and all other aspects of your human resources activities.
As for employers in the rest of the country, it appears likely that yesterday’s ruling will be followed by decisions in other circuit courts similarly extending Title VII rights to cover sexual orientation. In fact, the plaintiff in a prominent case recently decided by the 11th Circuit Court of Appeals (hearing cases from Florida, Georgia, Alabama) has indicated she could seek a full en banc review of her case in the hopes of extending Title VII to cover LGBT workers in that circuit. It would not be surprising for the Hively case to be the first in a series of dominoes that brings about a new day for Title VII litigation across the country.
We can expect to see further judicial rulings in the coming years fleshing out this issue in more detail. For example, one issue not addressed by the 7th Circuit is how this new theory will affect religious institutions given that different standards apply to them under federal antidiscrimination laws. These and other considerations will be debated in courts across the country in the near future.
Even if these appeals court decisions do not immediately materialize, there are two other avenues whereby employers could still face immediate liability for such claims. The first is through state law. Almost half of the states in the country have laws prohibiting sexual orientation discrimination in employment (California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Utah, Vermont, Washington, and Wisconsin), and some additional states protect state workers from such discrimination (Alaska, Arizona, Indiana, Kentucky, Louisiana, Michigan, Missouri, Montana, North Carolina, Ohio, Pennsylvania, and Virginia).
Second, plaintiffs have successfully argued to various federal courts that Title VII sex discrimination covers claims where plaintiffs allege mistreatment based on gender non-conformity actions. This includes situations where employers are alleged to have discriminated against workers for failing to live up to stereotypical gender norms. Courts have noted that drawing a line that separates these “sex-stereotyping” claims from pure sexual orientation claims is “exceptionally difficult” because the distinction is often “elusive,” meaning that employers anywhere could face a Title VII claim akin to sexual orientation discrimination that would be accepted as valid by a federal court no matter what the federal appeals courts say. This concept was discussed in the 11th Circuit’s recent Evans v. Georgia Regional Hospital decision, and the court in fact permitted the plaintiff to proceed with her case on a stereotyping theory.
While possible that the Supreme Court or Congress will step in and reverse this trend, as a recent court stated, “it seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love, or marry.” Employers should take heed and prepare for what appears to be an inevitable extension of workplace protection rights for LGBT workers based on their sexual orientation.
The topic this month highlights record retention and cover what employers should be keeping and for how long.
Did you know that there are over 14,000 federal, state, and industry specific laws/standards/regulations that dictate how long employers are required to keep certain records? Non-compliance can result in fines against company employees personally as well as judgments against the company itself.
Some of the Federal Labor and Employment laws that require record retention include:
Please contact our office directly if you would like more information on this topic or if you would like more information regarding how to conduct an audit of your company record retention policies.
Employers should make sure that any background check they perform is job related and consistent with business necessity. As advised during the recent 2013 Workplace Strategies seminar, the Equal Employment Opportunity Commission (EEOC), worker advocacy groups and plaintiff attorneys are not giving employee and applicant credit and criminal background checks intense scrutiny.
To avoid EEOC charges of disparate treatment or disparate impact based on a background check, an employer should follow four essential steps:
These steps involve the interplay of federal law including Title VII and the federal Fair Credit Reporting Act (FCRA) as well as state mini FCRAs.
When an Employer May Request a Background Check
According to the EEOC, employers must ensure that there is a direct connection between the type of background check performed and the individual applicant’s or employee’s job duties and that a particular type of background check is done for all applicants and employees in certain positions (not just certain applicants or employees) if there is not an individualized, specific reason for the background check.
The starting place is the job title. For example, while there would be a strong business justification to run a credit check on a CFO, there would not be a justification for a credit check for a janitor. The next step is to consider the nature of the job –whether it involves activities like data entry or just lifting boxes- and the circumstances in which the job is performed. Consider the level of supervision involved and whether there is interaction with vulnerable adults. Finally, take into account the location where the position is performed.
Requesting a background check requires the employee or applicant to sign a disclosure and authorization form that is separate from other documents, such as the employment application. Be sure to list and describe the background check information being requested and reviewed but don’t include a release from liability as that would invalidate the consent.
If the employer receives negative information about the applicant or employee, the FCRA requires that a pre-adverse- action letter be sent to the individual if there is potential for an adverse employment action. Title VII requires the employer to conduct an individualized assessment and send an action letter.
The individualized- assessment process must give the applicant or employee an opportunity to provide additional facts or context to explain why the background check’s finding should not be applied in his or her case. It is advised to ask for the response from the employee in writing as it exhibits the seriousness of your position and establishes a record. If the individual does not respond, the employer may make the employment decision without the extra information.
Criminal Checks
It is cautioned that employers generally should not use arrest information in making employment decisions, but rather consider if you would exclude the applicant if there was a conviction.
With regard to convictions, EEOC’s 2012 guidance on Title VII and background checks strongly recommends that employers use a targeted screening process that takes into consideration the nature and gravity of the offense or conduct; the time that has passed since the offense, conduct and/or completion of the sentence; and the nature of the job held or sought.
The EEOC does not provide guidance on the time period to cover when looking into criminal records. Many employers use a seven year period, but it is best to consider a longer time frame if it is deemed appropriate for your business activities.
State Law
Several states have mini-FCRAs that restrict employers from requesting certain types of background checks. Currently, 11 states (California, Connecticut, Hawaii, Illinois, Maryland, New Jersey, Ohio, Oregon, Pennsylvania, Vermont, and Washington) limit an employer’s ability to run a credit background check. Similar legislation is pending in 13 other states as of 2013.
In addition, 12 states have state-specific disclosures that must be included on the disclosure and authorization form and some states require an employer to customize its form by position or type of check being run. In California, for example, employers must identify the specific state statutory basis authorizing them to request and use a credit report.
There are no state law restrictions on requesting criminal check however.
The media, paired with political figures, have paid increased attention to workplace bullying in recent years. Legislators in 21 states have even introduced bills to address and combat workplace bullying, starting with California in 2003.
However, none of the legislatures in states which these bills have been introduced have passed the bills into law. There are a variety of explanations for why there has not been a change in the law despite workplace bullying becoming a hot button employment issue, but the most obvious explanation is this: it truly is difficult to define workplace bullying.
What Is It….Exactly?
The general definition of work place bullying is a behavior in which an individual or group uses persistent, aggressive, or unreasonable behavior against a coworker or subordinate. As with childhood bullying, we often think of workplace bullying as being physical acts against another, such as assaulting a coworker or invading a coworker’s personal space in a threatening manner, however it often takes a more subtle forms. For instance, a supervisor can act as a bully by manipulating work tasks, like giving a victim repetitive or irrelevant assignments as a means of control. Supervisors can also act as a bully in the way they provide feedback. For instance, a supervising bully can choose to belittle a subordinate in a public setting so as to humiliate them, as opposed to delivering the constructive criticism in a private setting.
Because bullying comes in many forms and is often understated, it is a challenge to create a proper definition for it. Most notably, it is difficult to draw precise lines between assertive managers and bullying conduct. Employers depend on their managers to evaluate the performance of the employees under their supervision and to provide feedback so employees can learn from mistakes and improve. The big question is how do we know when that vital evaluation process has crossed the line and become bullying behavior, especially when criticism by its nature entails negative statements.
Employers can use two simple rules of thumb to aid in analyzing if certain behavior constitutes bullying, especially with respect to supervisor/supervisee relations:
Problems Are Both Legal and Practical
State legislatures might struggle to define workplace bullying, but the absence of specific anti-bullying laws should not deter employers from being wary to this phenomenon. If left unchecked, bullying can create a host of workplace headaches, such as (1) increased use of sick leave, (2) increased use of medication, such as anti-depressants, sleeping pills, and tranquilizers, (3) social withdrawal, (4) decreased productivity and motivation, (5) increases in the frequency and severity of behavior problems, (6) erratic behavior, such as frequent crying spells and increased sensitivity, and (7) increased turnover.
And the fact that there is no designated legislation for workplace bullying does not mean that the behavior cannot create lawsuits in other ways. Assault and battery claims are the most obvious legal actions that bullying can cause, but there are a host of other ways that employees who are bullied (or who perceive they were bullied) can gain access to the courts.
For instance, a bullying victim can bring a claim pursuant to Title VII for harassment or discrimination if the individual ties the activity to a protected characteristic, such as “my female boss degrades men under her supervision.” A bullying victim can also bring a claim against an employer for negligent hiring and retention on the theory that the employer knew about a supervisor’s bullying tendencies (either during the hiring process or thereafter) and did nothing. There are even implications under OSHA which requires that employers complete a Workplace Violence Incident Report in any instance which an employee commits a violent act against another employee.
Closing Advice
In light of the performance, and litigation, related reasons to combat workplace bullying, you should take steps to handle this problem, if you have not done so already. Every employer should have an anti-bullying policy that : (1) defines workplace violence and bullying behaviors, (2) provides a reporting procedure that identifies multiple managers to whom incidents or threats can be reported, and (3) encourages employees to report incidents, especially by assuring them that the employer will not tolerate retaliation against an individual who complains of bullying.
The last point is especially important because bullying victims often feel powerless as a result of the power dynamic that the bully has fostered. You should also train your managers on workplace bullying so they have a basic understanding of the warning signs and the potential impacts for not addressing bullying at the first possible instance.
While the law has not caught up to the problem of workplace bullying, a savvy employer can get in front of the issue by taking basic steps to ensure a bully-free workplace.