Articles Posted in Employment Discrimination

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A transgender woman’s sex discrimination lawsuit examined the extent of protection, if any, offered for gender identity by federal anti-discrimination law. Jamal v. Saks & Company, No. 4:14-cv-02782, complaint (S.D. Tex., Sep. 30, 2014). Issues relating to transgender persons, generally defined as someone who identifies with a different gender than the one they were assigned at birth, have gained considerable prominence in recent years, particularly with regard to their rights against workplace and public discrimination. New Jersey and other states prohibit employment discrimination based on “gender identity or expression” N.J. Rev. Stat. § 10:5-12(a), but federal anti-discrimination laws do not expressly mention gender identity.

The defendant operates the Saks Fifth Avenue chain of department stores. The plaintiff, a transgender woman, first worked at an outlet store in suburban Houston, Texas until she was transferred to its “full-line store” in Houston. Jamal, complaint at 3. She alleges that the defendant routinely “misgendered” her by referring to her with male pronouns and other indicators, and denying permission to use the women’s restroom. The store manager allegedly requested that she “change her appearance to a more masculine one.” Id. at 5. Managers and fellow employees, the plaintiff claims, routinely harassed and belittled her on the basis of her gender identity. She complained to the EEOC, and was fired ten days later.

The plaintiff sued for wrongful termination, hostile work environment, harassment, and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and Title I of the Civil Rights Act of 1991, 42 U.S.C. § 1981a. The defendant filed a Rule 12(b)(6) motion to dismiss in December 2014 that referred to the plaintiff as “he,” and used the term “[sic]” when quoting portions of the plaintiff’s complaint that used female pronouns. This term is used to indicate that quoted text includes errors or inaccuracies found in the original. The defendant later withdrew its motion, and the parties stipulated a dismissal of the lawsuit in March 2015. The questions it raised still remain, though.
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In 2007, Facebook founder and CEO Mark Zuckerberg spoke to a group of aspiring entrepreneurs at a startup workshop at Stanford University about “the importance of being young and technical.” Zuckerberg, who was 22 years old at the time, went on to say that “young people are just smarter.” He cited attributes like “simpler lives,” which would allow younger employees to devote more time to their jobs. Age discrimination has long been a serious issue in the technology industry. The question of whether maintaining a young, energetic workforce–at the cost of losing older, more experienced employees–is ultimately to a company’s benefit is something that tech industry analysts can discuss. Refusing to hire someone solely on the basis of his or her age is often against both state and federal law. This problem is not limited to the tech industry but occurs in many industries all over the country. As the tech industry expands into places like New Jersey, however, the way in which some tech companies proudly tout their “youth” bears scrutiny.

Under the federal Age Discrimination in Employment Act (ADEA), employers may not discriminate against employees in hiring, firing, and other terms and conditions of employment based on the person’s age. 29 U.S.C. § 623(a)(1). This includes limiting job openings to a particular age group, either expressly or by using terms like “new or recent graduates preferred.” The ADEA, however, only applies to workers who are at least 40 years old. 29 U.S.C. § 631. It therefore might not prohibit age discrimination based on a determination that a person is too young. New Jersey’s Law Against Discrimination (LAD) also prohibits discrimination on the basis of age. N.J. Rev. Stat. § 10:5-12(a).

The tech industry, in California’s Silicon Valley and elsewhere, appears to value youth as much as, if not more than, the movie industry in Hollywood or the fashion industry in New York City. This has manifested itself in a variety of ways, from a general lack of “graybeards” to awkward work environments for the older tech workers who do manage to find jobs. It also includes multiple instances of overt age discrimination, such as the sort of job listings mentioned earlier that discourage older job seekers, either by directly stating an age limit or using phrases like “Class of 2007 or 2008 preferred.” A job advertisement using that phrase led to a settlement, which did not include any monetary penalties, between Facebook and California employment regulators in 2013.
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A group of sociologists has recently published two studies on the effect of religious identifiers on hiring decisions. One study focused on employers in New England, and the other on employers in the American South. Both studies found that résumés and job applications referencing a specific religious affiliation are less likely to receive follow-up action from employers than those that do not mention religion at all. This highlights a difficult aspect of employment anti-discrimination law, which requires proof that an adverse employment action, like refusal to hire, was based on a protected class, like religion. The discrimination uncovered by these studies may not be intentional, and in fact the individuals making these decisions may not even be aware of the disparate treatment, but it still violates state and federal anti-discrimination law.

The researchers sent about 3,000 résumés to employers from “fictitious job applicants” who had recently graduated from college. They randomly modified the résumés “to indicate affiliation in one of seven religious groups or a control group,” typically by mentioning membership in a campus religious organization. The seven religious identifiers were atheist, Catholic, evangelical Christian, Jewish, pagan, Muslim, and a fictitious religious identity called “Wallonian.” Each employer received four résumés with comparable qualifications, which only differed in religious affiliation and minor details. The researchers set up email accounts and telephone numbers for the fictitious job applicants in order to track the responses from the employers.

In the New England study, resumes that mentioned religion received about 25 percent fewer responses from employers. Those that indicated affiliation with Muslim organizations had the lowest response rate, at one-third less than the control group. Applicants identified as atheist, Catholic, or pagan also received a significantly lower response rate. The Southern study had similar results, with evangelical Christians and Wallonians also receiving significantly fewer responses. Jewish applicants were the only ones who showed no significant disadvantage compared to the control group.
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A federal judge in New Jersey recently denied the defendants’ motion to dismiss a lawsuit alleging race and national origin discrimination. A former employee, who worked for nearly two decades as a contract employee for a federal agency, is claiming that the agency wrongfully failed to hire him for a permanent position. Suri v. Fox, et al., No. 1:13-cv-05036, 2nd am. complaint (D.N.J., Apr. 16, 2014). After the defendants moved to dismiss the lawsuit, the court ruled that the plaintiff had made a prima facie case for race and national origin discrimination. This means that the case may proceed, and that the burden shifts to the defendants to show a non-discriminatory basis for their actions.

The plaintiff, who is originally from India, became a U.S. citizen in 1992. He has bachelor’s and master’s degrees in electrical engineering and a master’s degree in environmental engineering. He began working for the Federal Aviation Administration (FAA) as a summer intern in 1995. During the internship, he states that he asked about a permanent position but was told that a hiring freeze prevented the FAA from offering him a permanent job. He accepted a contract position with H-Tec Systems, an FAA contractor, when his internship ended in September 1995. He continued working on site at the FAA’s William J. Hughes Technical Center in Atlantic City, New Jersey for 13 years. In 2008, he took a job with another contractor, EIT, that kept him in the same place.

According to his complaint, the plaintiff worked with FAA employees on a daily basis, had an office cubicle at the FAA facility, and used office equipment, supplies, and furniture provided by the FAA. The details of his employment, including work assignments, discipline, and leave, were under the control of FAA supervisors. He claims that he continued to ask about a permanent position and was still told about a hiring freeze. The supervisor who cited the hiring freeze, however, allegedly hired several Caucasian employees with lesser qualifications than the plaintiff to permanent positions during this time period. At various other times, the plaintiff claims that employees with lesser qualifications and less seniority than him, all Caucasians, were placed in positions over him.
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Social media has given a platform to nearly anyone with internet access, and many people use that opportunity to share their views with their friends and followers, as well as the general public. Many statements could be considered objectively offensive by modern standards regarding race, gender, and other issues, while others might be more subjective. Some people have faced adverse actions from their employers, including firing, because of statements on politics and other issues made on social media, and other acts outside work. Do state or federal employment laws protect workers engaging in these types of activities? The answer is complicated. Federal law only protects workers in certain specific circumstances, and few state laws address political affiliations or other activities as they pertain to employment.

Two recent incidents demonstrate the potential impact of careless or offensive statements on social media. In December 2013, a public relations director for an internet company sent a tweet just before boarding a plane bound for South Africa. The tweet, a joke referencing the issue of AIDS in Africa, caused such an immediate uproar that she was out of a job before her flight reached its destination. More recently, the communications director for a Republican member of Congress resigned her position after writing a post on Facebook criticizing President Obama’s daughters in terms generally considered offensive.

Some people have chosen to respond to online statements they find egregiously offensive by notifying employers–at least one blog, Racists Getting Fired, chronicles efforts to report racially offensive statements. Most of these types of responses have involved people making statements widely considered to be racist, sexist, or otherwise bigoted or offensive. One concern regarding this practice, according to activist and writer Tressie McMillan Cottom, is that it “sets a terrible precedent of witch-hunts for good people who make a few mistakes.” The door can swing both ways, too, as evidenced by reports that a police officer in St. Louis contacted an employer, in an official capacity, regarding an employee’s tweets that criticized the police department.
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The U.S. Supreme Court will hear the appeal of a religious discrimination lawsuit brought by the Equal Employment Opportunity Commission (EEOC). EEOC v. Abercrombie & Fitch Stores, Inc., No. 14-86. The complainant alleged that the company, a retail clothing chain, refused to hire her because she wears a hijab, the headscarf commonly worn by many Muslim women. The company claimed that the hijab violated its dress code. It argued in court that the complainant never requested a religious accommodation during the job application process, although she wore a hijab to her in-person interview. An unpublished 2013 New Jersey decision addresses a similar religious discrimination claim by a Sikh man.

Abercrombie operates a nationwide chain of retail clothing stores that market a particular style, supported by a comprehensive, and often controversial, “Look Policy” for its employees. The complainant applied for a job at an Abercrombie Kids store in Tulsa, Oklahoma in 2008, when she was 17 years old. She wore a hijab to her interview, where an assistant manager reportedly gave her a good enough score on her style to recommend her for employment. A supervisor allegedly rejected her because the “Look Policy” does not allow employees to wear hats or other head coverings. The supervisor has since claimed to have had no knowledge that the headscarf–which the complainant wore to a job interview with an employer known for its expansive dress code–was worn for religious reasons.

The EEOC investigated her claims of religious discrimination and filed suit in 2009. Abercrombie settled two similar EEOC lawsuits in 2013. One alleged refusal to hire, and the other involved a woman who claimed that the company fired her after a district manager visited the store and disapproved of her hijab. The company paid a total of $71,000 to the two women and agreed to allow female employees to wear hijabs. The Oklahoma case was already pending when the settlement occurred.
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In September 2014, the story of an employer who laid off a woman shortly after learning of her cancer diagnosis went “viral,” moving quickly from local to global news coverage. The story highlights an important question for employees and their advocates about how state and federal employment laws protect people when they are diagnosed with cancer or another serious illness. Federal laws like the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA) offer some protection, but they do not apply to many small employers. State laws, such as New Jersey’s Law Against Discrimination (LAD), sometimes offer broader protections.

A local news site in Pennsylvania reported on a woman who notified her employer of about 12 years that she had been diagnosed with cancer. The employer reportedly sent her a handwritten letter informing her that that he was laying her off without pay, noting that she would not be able to fulfill her employment duties while also undergoing cancer treatment. The story took off when a family member posted a copy of the letter to the internet.

The woman has avoided media attention and is reportedly focusing on her treatment. The employer has stated that everyone has misinterpreted the letter, and that he intended to help her by giving her time away from work. Local news reported that he did not contest her unemployment claim, which gives her 26 weeks of benefits. Nothing else has appeared in the news about the story since mid-September.
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The Equal Employment Opportunity Commission (EEOC) announced this summer that it settled a disability discrimination lawsuit against the drugstore chain Walgreens, which allegedly engaged in wrongful termination based on a health condition. EEOC v. Walgreen Co., No. 3:11-cv-04470, complaint (N.D. Cal., Sep. 8, 2011). The company claimed that the termination was based on “misconduct,” but the court found that misconduct that is directly related to an employee’s disability must be considered in connection to the disability. Shortly after the court denied the defendant’s motion for summary judgment, the parties entered into a consent decree in which the company agreed to various forms of injunctive relief and $180,000 in damages.

The complainant worked for Walgreens for about 18 years. She was diagnosed with Type II diabetes in 1995, after about five years at Walgreens. The company knew about her condition and generally allowed her to have candy in case her blood sugar got too low, to keep insulin in the employee break room, and to take additional breaks to eat or test her blood sugar.

While she was restocking shelves on September 17, 2008, the complainant began experiencing symptoms of low blood sugar, including sweating and shaking. She did not have any candy on her person at the moment. Fearing a hypoglycemic emergency, she took a bag of chips from the cart of items to be restocked and ate some of them. The bag had a retail price of $1.39. She claims that she began to feel better after about 10 minutes and went to the cosmetics counter to pay for the bag of chips. Finding no one there, she put the bag under the register and returned to her restocking duties.
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Concern over infectious diseases has captured the imagination of much of the country in recent months, particularly with regard to Ebola virus disease (EVD). Only a handful of EVD cases have been reported in the U.S., and health officials and experts have repeatedly stated that the disease is unlikely to pose a serious threat to the country. Other diseases, such as influenza, pose a far greater threat in the U.S. but generally receive less media attention. Regardless, since a disease outbreak is on the nation’s mind, it raises the question of what legal duties employers owe to protect their employees from infectious diseases. The answer depends largely on the type of employer.

The first case of EVD in the U.S. was diagnosed at a hospital in Dallas, Texas in September 2014. That patient has since died, and two nurses who treated him were subsequently diagnosed with EVD. The Centers for Disease Control and Prevention (CDC) is investigating reports that health care workers treated the initial EVD patient for about three days, from September 28 to September 30, without wearing protective equipment. As many as 70 workers were exposed to the patient during that time, but only the two nurses have tested positive for the disease. EVD is not airborne and can only be transmitted through direct contact with an infected person’s blood or other bodily fluids.

The actions and preparedness of the Dallas hospital, including an alleged lack of safety protocols, drew a harsh rebuke from the hospital’s nurses. The incident has raised concerns about whether the hospital took adequate precautions to protect its workers from infection. Laws like the Occupational Safety and Health Act (OSHA), 29 U.S.C. § 651 et seq., require employers to provide reasonable protection against occupational diseases. This could apply to workers in health care and other fields where ordinary job duties make exposure to infectious diseases likely. See American Dental Ass’n v. Martin, 984 F.2d 823 (7th Cir. 1993).
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A pair of lawsuits brought by the Equal Employment Opportunity Commission (EEOC) against a company that operates a nationwide chain of auto supply stores alleges race and disability discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Americans with Disabilities Act (ADA) of 1990, 42 U.S.C. § 12101 et seq. One case involves the transfer of an employee from one store to another as part of an alleged effort to reduce the number of black employees at the first store. The other case alleges failure to provide reasonable accommodations for two employees with disabilities, and the termination of one of them after making a complaint.

The complainant in the race discrimination case worked at a retail location in southwest Chicago. The employer “involuntarily transferred” him to a store location on the far south side of the city, allegedly “as part of an effort to eliminate or limit the number of black employees” at the southwest Chicago store. EEOC v. AutoZone, Inc. (“AutoZone I“), No. 1:14-cv-05579, complaint at 3 (N.D. Ill., Jul. 22, 2014). The company allegedly believed that the southwest Chicago store’s customers “preferred to be served by non-black, Hispanic employees.” Id. The complainant objected to the transfer to the south Chicago store and ultimately refused to agree to it. At that point, the defendant terminated his employment.

The EEOC alleges that the defendant’s actions “deprive or tend to deprive [the complainant] and other black individuals of employment opportunities because of their race.” Id. at 3-4. The lawsuit asserts a cause of action for race discrimination, 42 U.S.C. § 2000e-2(a)(2). It seeks a permanent injunction against further employment practices that discriminate based on race, new policies and training programs geared towards alleviating past and preventing future race discrimination, and monetary damages paid to the complainant.
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