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Posts Tagged ‘Title VII’

EEOC Issues Opinion Letter on Scope of Pattern or Practice Claims that Modifies Earlier Position

Posted on: September 23rd, 2020

By: Jennifer Markowski

On September 3, 2020, the Equal Opportunity Commission (“EEOC”) issued an Opinion Letter concerning the so-called “pattern or practice suits” brought under section 707 of Title VII. The questions answered in the letter are: (1) Does a pattern and practice claim under section 707(a) require allegations of violations of section 703 or section 704; and (2) Does a section 707 claim require the pre-suit requirements of section 706 be satisfied before suit can be filed? The EEOC answered both questions in the affirmative, which was a change from previous stances on both issues.

Section 707(a) allows the EEOC to bring suit when “a person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by this subchapter, and that the pattern or practice is of such a nature and is intended to deny the full exercise of the rights herein described.” 42 U.S.C. § 2000e-6(a). The subchapter is Title VII itself and the rights secured by Title VII are the rights to be free from unlawful discrimination (section 703) and retaliation (section 704). Reading the sections together, the EEOC opines that a claim under section 707 must therefore be based on a pattern or practice that is tied to unlawful discrimination or retaliation. This position deviates from the EEOC’s earlier broader interpretation that it had authority to pursue claims based on undefined practices that it believed facilitated unlawful “resistance” in some way, even if those practices did not violate section 703 or 704.

The EEOC further advised that the 706 pre-suit requirements must be satisfied before bringing suit. Thus, a charge must be filed, a reasonable cause finding must issue, and conciliation must be pursued before suit is filed. This too was a change from the EEOC’s earlier position that it was not bound by the section 706 requirements when pursuing a claim of “pattern or practice of resistance.”

Employers who rely in good faith and in conformance with the interpretations provided in the Opinion Letter may have a defense to a claim even if the Opinion Letter is subsequently rescinded, modified, or invalidated by a court.

If you have questions or would like more information, please contact Jennifer Markowski at [email protected].

U.S. Supreme Court Rules 6-3 That Federal Employment Law Prohibits Discrimination On The Basis Of Sexual Orientation Or Gender Identity

Posted on: June 17th, 2020

By: Ryan Greenspan

In perhaps the most significant and far-reaching employment-law decision in decades, the U.S. Supreme Court ruled on June 15, 2020 that the 1964 Civil Rights Act’s prohibition of discrimination “because of… sex” necessarily includes discrimination based on one’s sexual orientation or gender identity. This decision resolves a circuit split that had developed over the last three years, which meant that the question of whether sexual-orientation or gender-identity discrimination was unlawful depended on the federal circuit in which the case arose. In some circuits it was unlawful, in others it was not. Now there is uniformity on this issue throughout the country.

Before the Court were three cases from three different federal circuits:  Bostock v. Clayton County, Georgia; Altitude Express, Inc. v. Zarda; and R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission. The plaintiffs in Bostock and Zarda alleged they had been terminated because of their sexual orientation, while the plaintiff in Harris Funeral Homes alleged she had been terminated due to her gender identity.

The Supreme Court’s decision largely turned on the phrase “because of… sex” in the statute. As Justice Neil Gorsuch wrote in the majority opinion:

An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids. Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.

What does this mean for employers? Companies, including government agencies, that discriminate against a worker for being gay or transgender now face the same exposure as if they discriminate against an employee on the basis of race, color, religion, sex, or national origin. These remedies can include back pay, attorney’s fees, and compensatory and punitive damages up to the statutory caps from $50,000 to $300,000, depending on the size of the employer. While 21 states and the District of Columbia already had such protections in place for gay and transgender employees, the Bostock decision adds an extra layer of protection at the federal level, which applies to all states. Employers should adjust their policies accordingly.

It bears noting the 1964 Civil Rights Act applies only to employers with 15 or more employees, so smaller employers are not affected by this ruling (or the Civil Rights Act in general). It is also important to note that, because this decision is interpreting a statute, Congress has the authority to revise or amend the existing law, though there is no indication that it intends to do so.

It will be interesting to see how the Supreme Court’s decision may affect other laws. As Justice Samuel Alito noted in his dissent, over 100 other federal statutes also prohibit discrimination because of sex. If the very concept of sex discrimination necessarily includes discrimination because of sexual orientation or gender identity, as the majority opinion reasons, then these other laws, too, may well be impacted.

If you have questions or would like more information on this decision and its impact on the law, please contact Ryan Greenspan at [email protected].

Seldom Defeated on the Field, U.S. Women’s National Soccer Team Suffers Tough Setback in Equal Pay Lawsuit

Posted on: May 5th, 2020

By: Jeffrey A. Hord

The iconic U.S. Women’s National Soccer Team (USWNT) is rarely handed a defeat on the soccer pitch, having won four FIFA Women’s World Cup titles and four Olympic gold medals in the past 30 years. However, last Friday, a federal district court judge dismissed the USWNT’s claims under the Equal Pay Act (EPA) in its ongoing lawsuit against the United States Soccer Federation (USSF).  

In its lawsuit, the USWNT alleged different types of discriminatory treatment, but the core of the lawsuit is that they were paid less than the U.S. Men’s National Soccer Team for performing similar work.  Asserting that the treatment violated the EPA (and Title VII), the USWNT sought more than $66 million in damages…or, the amount the men would have earned if the Men’s National Team had achieved the exact level of success the USWNT has attained in recent years.

In its motion for summary judgment, USSF argued that the players’ claims should be dismissed because both the Men’s National Team and the Women’s National Team had negotiated their own pay and working conditions in a series of collective bargaining agreements (CBA) which reflected the two groups’ different preferences.  For example, the USWNT’s CBA emphasized guarantees for the players in the form of fixed salaries, whereas the men’s CBA created a compensation structure much more heavily based on incentives. 

In granting USSF’s motion, Judge R. Gary Klausner effectively ruled that the USWNT voluntarily chose their own payment structure when negotiating the CBA and, while it may have turned out to be less lucrative, they are bound by the terms of the CBA. Judge Klausner also dismissed that portion of the USWNT’s Title VII claim which cited “turf disparity” as an example of allegedly unequal working conditions.  The Court found that, based on the USWNT’s evidence, there was no way a jury could conclude USSF had “intentionally discriminated against the USWNT” by subjecting them to substandard turf surfaces more frequently than the Men’s National Team. 

The only claims to survive Friday’s ruling were the players’ claims about unequal treatment with respect to travel conditions (specifically, charter flights and hotels) and support services (specifically, medical and training support).  Unless the case resolves, the case will now proceed to trial on those issues.

While it remains to be seen whether Judge Klausner’s Order will survive appeal, this ruling nonetheless reinforces a well-settled legal principle: courts will not allow a party to a contract – even Olympic heroes and World Cup champions – to escape the terms of a contract knowingly agreed upon.

[1] Under the EPA, female plaintiffs have the burden of showing they performed substantially equal work as their male counterparts, under similar working conditions, and that the male workers were paid more.

[2] A spokesperson for the USWNT has already confirmed the players’ intention to file an appeal to the Ninth Circuit.

EEOC Releases Charge Data And Guess What — Retaliation Is The Most Frequently Filed Claim with the EEOC in 2019

Posted on: February 14th, 2020

By: Brent Bean

The Equal Opportunity Employment Commission recently released its 2019 enforcement statistics.  The EEOC is the administrative agency and gatekeeper for employment law claims asserted under Title VII of the Civil Rights Act of 1964.  The EEOC receives charges of discrimination which typically allege such claims as race, disability discrimination or sex harassment.  Notable among the types of charges the Commission received last year, claims of retaliation were the most frequently filed.  Of the over 72,000 charges the EEOC received in 2019, 53.8% articulated claims for retaliation, the most of any type of claim made.

Awareness that retaliation claims are the most frequently filed charge is important for employers in not only fashioning their workplace policies and procedures, but also in implementing training to avoid such claims.  Retaliation occurs, generally speaking, when the employee engages in some type of protected activity, after which the employer takes adverse employment action again the employee.  Lastly, the employee has to show the adverse action would not have occurred but for the protected activity.  Employers’ procedures for investigating workplace claims of discrimination or harassment, along with their policies for documenting not only those investigations but also employee discipline, are key to defending and defeating retaliation claims.

Also noteworthy, the EEOC’s enforcement numbers decreased in 2019.  The Commission filed  157 lawsuits last year, down from 217 in 2018.  Despite the decreased number of actual lawsuits filed, the EEOC’s statistics indicate that enforcement activity continues at a steady clip.  The takeaway is that employers need to be diligent in implementing and updating their workplace training and management practices.

Finally, EEOC’s 2019 statistics show the number of charges filed alleging LGBTQ-based sex discrimination continues to increase.  These charges grew to 1,868 charges in 2019, up 3% from 2018. The Supreme Court heard oral argument on a trio of LGBTQ-based cases in October 2019 and a ruling on whether these claims are viable under Title VII is expected in late Spring or early summer this year.

If you have any questions about workplace training, handbooks and developing compliant policies and procedures, please contact Brent Bean at [email protected].

Discrimination Without A Difference: Supreme Court To Decide Whether Section 1981 Requires “But For” Causation Or Whether Same-Decision Defense Applies

Posted on: June 24th, 2019

By: Michael Hill

The U.S. Supreme Court is poised to answer the question of where to draw the line when a decision is motivated in part by race discrimination. Must the plaintiff show the decision would not have been made but for his or her race, or is it sufficient to show that race was one factor behind the decision, even if the same decision would have been made for other, race-neutral reasons?

The case at issue, Comcast Corp. v. National Assoc. of African American-Owned Media, is not actually an employment discrimination case, but the Supreme Court’s decision will impact the realm of employment law because of the statute at issue, 42 U.S.C. § 1981 (“Section 1981”), prohibits race discrimination in making and enforcing contracts (which includes employment contracts).

The issue is whether Section 1981 requires “but for” causation, or whether a “mixed motive” analysis can be used. In Comcast, an African American-owned television network operator sued the cable company, alleging Comcast’s refusal to contract with the networks was racially motivated. The federal district court in California dismissed the case three times at the pleading stage, holding the complaints failed to allege facts to show Comcast had no legitimate business reasons for its decision not to contract with the networks. On appeal, a three-judge panel at the Ninth Circuit Court of Appeals unanimously reversed, holding a Section 1981 claim can proceed as long as race is alleged to have been one factor in the contract decision, even if there were other, race-neutral factors that would have led to the same decision.

The Supreme Court’s decision in Comcast will have a significant impact on the amount of damages available in cases alleges race discrimination in employment. Race discrimination claims under Section 1981 frequently are pled in tandem with Title VII of the Civil Rights Act. Title VII was amended in 1991 expressly to allow for “mixed motive” claims, but the only forms of relief available under a Title VII “mixed motive” claim are declaratory relief and attorney’s fees – no damages, back pay, or right to reinstatement. The language of Section 1981, however, contains no such limitation. Also, unlike Title VII, damages under Section 1981 are not capped; the statute of limitations is longer; and there is no requirement to submit the claim to the EEOC before suing in court. Thus, if the Supreme Court rules that Section 1981 covers “mixed motive” claims (and not just claims of “but for” discrimination), then claims alleging “mixed motive” race discrimination could become more valuable (and thus more costly to defend).

If you have questions or would like more information, please contact Michael Hill at [email protected].