Based upon a recent Ninth Circuit Court of Appeals decision, Mayes v. WincoHoldings, Inc., an employer who fires an employee for “theft and dishonesty” may still find themselves embroiled in a lengthy lawsuit.

In Zetwick v. County of Yolo, the Ninth Circuit Court of Appeals recently held that a supervisor’s frequent hugging of a subordinate could potentially create a sexually hostile work environment. In that case, Plaintiff was a correctional officer who had worked for the Yolo County Sheriff’s Department since 1988. The Plaintiff contends that from 1999 to 2012, she was subjected to over a hundred unwelcome hugs and at least one unwelcome kiss from her boss, the elected Sheriff, and that he hugged other women and did not hug male employees. Although Plaintiff was not terminated or denied promotion, she claimed that the Sheriff’s conduct caused her to be stressed and suffer from anxiety, and made it difficult for her to go into work.


Retaliation is the most commonly alleged claim in charges of discrimination filed with the Equal Employment Opportunity Commission (“EEOC”). In fact, according to the EEOC, retaliation claims were asserted in forty-four and a half-percent (44.5%) of all charges filed in 2015. That number is almost double the number of charges that alleged retaliation in 1997. It is not surprising then that the EEOC just put out a new Enforcement Guidance on Retaliation and Related Issues (“Guidance”). The new Guidance replaces the Retaliation section contained in its 1998 Compliance Manual and is intended as a comprehensive guide to the EEOC’s interpretation of a host of workplace retaliation issues.

As an update to an Eblast posted in January, the Supreme Court has ruled that the filing period for a constructive discharge claim begins to run when an employee resigns as a result of discriminatory behavior, rather than the time of an employer’s last discriminatory act. Constructive discharge occurs when an employee resigns as a result of the employer creating a hostile work environment. As you may recall, in Green v. Brennan, the plaintiff’s constructive discharge lawsuit was barred because he did not file the charge within 45 days of the last discriminatory act.

Gender identity discrimination in employment may soon become unlawful, or at least that is what the ten states moving to block an Obama directive think. President Obama issued a directive recently which changes the interpretation of sex discrimination to also include gender identity discrimination. Currently, the directive only applies to the educational sector through Title IX, an anti-discrimination law governing most schools and colleges. Although the directive is supposedly aimed at protecting transgender students, as written the directive also applies to school employees. Employers are concerned that this may be a road map for changes which may soon apply to Title VII which governs private employers. The ten states’ suit in Nebraska is accompanied by 13 other states currently suing to block the same directive in a Texas federal court. 

With the exception of federal contractors and subcontractors, existing Federal law does not explicitly protect private sector employees from discrimination based on gender identity. However, the Equal Employment Opportunity Commission (“EEOC”), the federal agency tasked with enforcing federal anti-discrimination laws, has taken an increasingly aggressive stance to protect transgender employees from discrimination. Because there is no explicit protection for gender identity, the EEOC has had to rely on cases which recognize that sex discrimination can occur based on non-conformance with sex stereotypes. That is to say, those cases have held that it is unlawful to discriminate against an employee because their actions or appearance do not match those that are typically associated with being male or female. In other words, employers cannot terminate male employees for being too effeminate or women for being too masculine.

2015 was another busy year for the Equal Employment Opportunity Commission (“EEOC”). Cases in the past year appear to have shown an overall increased emphasis on religious accommodation in particular. Below are a few examples of cases from the last year and some important lessons to learn if you do not want to end up in the EEOC’s cross-hairs.

EEOC v. Abercrombie & Fitch – In perhaps the most publicized EEOC case on the subject of religious accommodation, after four years of appeals, the U.S. Supreme Court held that Abercrombie’s refusal to hire a teenager who wore a headscarf (hijab) because it did not conform to the company’s “look” policy was a failure to hire/refusal to accommodate religious beliefs and constituted discrimination. Abercrombie dropped their appeal and paid $25,670 in damages and $18,983 in court costs to the woman who was denied employment.

EEOC v. Star Transport, Inc. – Two Muslim truck drivers were awarded $240,000 by a federal jury in Chicago after they were fired by their trucking company for refusing to transport alcohol because it violated the tenets of Islam. Though the total damages for each were only approximately $1,500 in back pay and $20,000 in compensatory damages per driver, the jury awarded $100,000 in punitive damages for each driver.

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