Employers who are sued for sexual harassment committed by a supervisor may be able to avoid liability, even if harassment had, in fact, occurred, by asserting the so-called Faragher-Ellerth affirmative defense, named after the two United States Supreme Court cases that first recognized the defense. An employer may assert the Faragher-Ellerth defense to supervisor harassment when no tangible employment action has been taken against the harassed employee and the employer is able to demonstrate (a) it exercised reasonable care to prevent and correct promptly any sexually harassing behavior and (b) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. Recently, the United States Court of Appeals for the Third Circuit, in Minarsky v. Susquehanna County, addressed the requirements of the Faragher-Ellerth defense in the context of the assertion of a female employee that she acted reasonably in not taking advantage of the procedures made available by her employer to prevent or correct the harassment against her by her supervisor. In so doing, the Third Circuit reversed the district court’s grant of summary judgment to the employer based on the Faragher-Ellerth defense and held on the facts of the case a jury should decide the whether the defense applied. Background Sherri Minarsky worked as a part-time secretary at...
Tagged: Title VII
On May 23, 2016, the U.S. Supreme Court, in Green v. Brennan, held that the statute of limitations for a constructive discharge claim begins to run when the employee gives notice of his or her resignation, not at the time of the employer’s last allegedly discriminatory act giving rise to the resignation. The “constructive discharge” doctrine refers to a situation in which an employer discriminates against an employee to the point that the employee’s working conditions become so intolerable that a reasonable person in the employee’s position would feel compelled to resign.
EEOC to Collect Wage and Hour Data Based on Race, Ethnicity, and Gender in Effort to Aid Enforcement of Laws Requiring Pay Equity
The United States Equal Employment Opportunity Commission (“EEOC”) has proposed a change to the EEO-1 Report, the standard form used to collect workforce profiles from certain private industry employers and federal contractors. In its current iteration, the form annually requires employers to categorize their workforces based on gender, race, ethnicity, and job category, using data collected from one pay period occurring in July, August, or September of the reporting year. The amended form would require further categorization of employees based on W-2 earnings and hours worked.
Paid Suspension Not Adverse Employment Action Under Title VII, According to Third Circuit Court of Appeals
In Jones v. Southeastern Pennsylvania Transportation Authority, the Third Circuit Court of Appeals concluded that a paid suspension is not an adverse employment action in the “substantive discrimination context.” A predicate for a discrimination claim under the various anti-discrimination laws, requires the plaintiff to show she suffered an “adverse employment action,” generally described as an action or incident substantially serious to alter an employee’s compensation, terms, conditions, or privileges of employment. In the absence of an adverse employment action, a discrimination claim fails. Now, a paid suspension, as determined by the Circuit Court, is not significantly sufficient to affect the employment relationship to create liability under Federal and Pennsylvania State anti-discrimination laws.
Supreme Court Rules an Employer’s Failure to Accommodate a Job Applicant’s Religious Practice Violates Title VII Without Proof the Applicant Requested An Accommodation
In its much anticipated decision in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., the U.S. Supreme Court has held that a prospective employee who was turned down for a job because she wore a headscarf, which the employer suspected was worn for religious reasons, can proceed with her claim of religious discrimination under Title VII of the Civil Rights Act of 1964, although when she applied for the job the applicant never requested permission to wear the headscarf as an accommodation to her religious practices. Employers should be aware that the Court’s decision (1) imposes on an employer an affirmative obligation to reasonably accommodate the religious practices of its employees and prospective employees and (2) exposes an employer to potential liability for intentional discrimination, and thus for compensatory and punitive damages, for failing to make such accommodations.
In Mach Mining LLC v. Equal Employment Opportunity Commission, the United States Supreme Court was presented with the issue of whether the EEOC must attempt to conciliate an employer’s alleged violation of Title VII of the Civil Rights Act of 1964 before initiating a lawsuit against the employer and, if so, to what extent a court may review those conciliation efforts. The Court concluded that the EEOC must attempt to engage in conciliation, but that the scope of a court’s review of the EEOC’s efforts is narrow. Post-Mach Mining, an employer that attempts to challenge a lawsuit brought by the EEOC on the grounds that the agency’s conciliation efforts were insufficient will be fighting an uphill battle.
Short and Concise Release Agreement Saves the Day for Employer According to NY Federal District Court
On February 24, 2015, in Brewer v. GEM Industrial Inc., the United States District Court for the Northern District of New York found a two-plus page separation agreement sufficient to dismiss the plaintiff’s court complaint because it was short, understandable by a lay person and included a provision notifying the employee of the right to seek counsel before signing it. The plaintiff, Samuel Brewer, sued his employer claiming discrimination in violation of Title VII of the Civil Rights Act of 1964 related to his termination. Before filing his discrimination lawsuit, he executed a separation agreement containing a release of claims. His employer moved to dismiss the lawsuit based on the release in the separation agreement.
President Obama recently signed two Executive Orders that impact government contractors in their capacity as employers. Executive Order 13672 (July 21, 2014) amends Executive Order 11246 (September 24, 1965) by adding “sexual orientation” and “gender identity” to the list of personal characteristics that cannot be used by government contractors to discriminate against any employee or applicant for employment. As originally issued, Executive Order 11246 proscribed discrimination on account of race, color, religion, sex, and national origin – characteristics protected by Title VII of the Civil rights Act of 1964 (Title VII). Sexual orientation and gender identity are not specifically identified in Title VII as protected characteristics. These Executive Orders also apply to subcontractors and vendors of government contractors. Executive Order 13672 leaves in tact an earlier amendment to Executive Order 11246 that granted an exemption for government contractors qualifying as religious organizations in terms of the ability of these organizations to hire individuals of a given religion. The Department of Labor is charged with issuing regulations within 90 days implementing the new Executive Order.
The Equal Employment Opportunity Commission (“EEOC”) — the federal agency responsible for the enforcement of federal anti-discrimination laws — recently issued guidance on religious accommodation under Title VII of the Civil Rights Act of 1964 (“Title VII”), specifically focusing on religious dress and grooming practices. The publication, entitled “Religious Garb and Grooming in the Workplace: Rights and Responsibilities,” along with its accompanying Fact Sheet, are designed to assist employers to comply with their legal responsibilities under Title VII.
New EEOC/FTC Joint Informal Guidance on Employers’ Use of Background Checks into Workers’ Criminal Records
On March 10, 2014, the Equal Employment Opportunity Commission (EEOC) and the Federal Trade Commission (FTC) issued their first joint guidance on employer use of background checks in hiring or firing decisions. The use of background checks by employers in personnel decisions is becoming a more tricky road to navigate. The EEOC enforces the Federal anti-discrimination laws and the FTC enforces the Fair Credit Reporting Act (FCRA), all of which can be implicated in the background check process, particularly when a third party credit reporting agency becomes involved. The EEOC/FTC joint guidance is reduced to two brief, non-technical documents — one for employers and another for job applicants respectively–called “Background Checks: What Employers Need to Know,” and “Background Checks: What Job Applicants and Employees Should Know.” The guidance for employers describes the information and documentation in a background check report that may be used lawfully to make personnel decisions about a job applicant or employee. The document for applicants identifies the employer’s obligations particularly when relying upon a background check to disqualify an applicant or employee.