E-Blasts

Earlier this month, the Equal Employment Opportunity Commission (“EEOC”) and a Florida employer reached a $100,000.00 settlement stemming from a discrimination claim by a pregnant job applicant who alleged her offer was pulled because of her pregnancy. The applicant, Nicole Purcell, contended that the employer formally offered her a job in March 2015. After receiving the job offer, Purcell called the employer’s office and asked to speak with a department head.  She told the department head she was pregnant, and asked about the employer’s maternity policy. Less than half an hour later, the employer pulled Purcell’s offer, explaining that they had a very urgent need to have somebody in the position long term.

The EEOC said that the employer violated the law by assuming that Purcell could not perform the duties asked of her. The employer was required under the law to assume that a pregnant employee could perform the job until proven otherwise, or until the employee asks for an accommodation due to her pregnancy.

Earlier this week in Gamble v. JP Morgan Chase & Company, et al., the 6th Circuit upheld a lower court decision throwing out the claim of a stockbroker against his employer for disability and age discrimination.  Plaintiff argued that his employer violated the Americans with Disabilities Act (“ADA”) and Age Discrimination in Employment Act (“ADEA”) because, after he suffered a heart attack, his employer failed to accommodate his disability and terminated him following his disability leave. Under the ADEA and ADA, if a plaintiff does not present any direct evidence of discrimination, he or she is required to show, among other things, that he or she is “otherwise qualified for the position.” To make this decision, courts look to whether the employee is able to perform the “essential functions” of the job. Here, Plaintiff did not present any direct evidence of age or disability related discrimination and was completely disabled, unreleased to work by his doctor, and was unable to regularly attend his job. Thus, because the Court concluded that regular attendance is an “essential function” of being a stockbroker, as it is for most jobs, it determined that the Plaintiff was not “otherwise qualified” for his position and denied his claim.

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.

 

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.

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.


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.

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