On November 7, the U.S. Senate passed Senate Bill 815, also known as the Employment Non-Discrimination Act (ENDA), to federally protect individuals from discrimination in the workplace based on their sexual orientation and gender identity. The bill’s passage comes a mere four months after the Supreme Court’s landmark decision in United States v. Windsor, which held that same sex couples who are legally married must be treated the same as married opposite sex couples under federal law. We reported on the potential impacts of Windsor here.
The bill bars employers from basing a personnel decision or treating an employee differently because of the employee’s sexual orientation or gender identity. ENDA will apply to most employers with 15 or more employees and labor organizations. The protections in the bill resemble current federal laws prohibiting workplace discrimination, such as Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA). The Equal Employment Opportunity Commission, the federal agency that investigates and enforces Title VII and the ADA, would enforce ENDA if it becomes law.
Given the politicized nature of the bill, Senate negotiations required navigation of various constituent and party concerns. Among other things, the amended bill now provides exemptions for religious institutions. ENDA barely received the 60 votes (61-30) required to reach the full Senate, and passed by a close 64-32 vote. The bill faces an even more difficult uphill battle in the House of Representative as Speaker John Boehner has publicly opposed passage of ENDA. At this moment, the bill has not been scheduled in the House for debate.
Despite the legislative hurdles facing ENDA, the Senate’s decision to open debate and pass the bill reflects growing public support for increased legal protections for the rights of lesbian, gay, bisexual, and transgendered individuals. Nearly half of all states – including Illinois – have already passed employment laws prohibiting sexual orientation or gender identity-based discrimination.
Article provided courtesy of the Worklaw® Network firm Franczek Radelet (www.franczek.com).
In a recent news release the EEOC and OFCCP recently lauded a judgment against B of A for hiring decisions made in North Carolina in 1995 and 2002-2005. More than 1,100 African-American job applicants are ordered to be paid $2.2 million. So I was curious. What exactly was B of A accused of doing wrong? Was there any underlying proof that this was somehow a well-developed scheme for excluding these applicants across numerous offices? Was it all based on credit background checks? Apparently not. It was in the end a statistical variance. While labeled as a pattern or practice case by the judge, it is really a disparate impact one. And a minor one at that. The gist of the underlying ruling was:
“I find that the OFCCP has established by a preponderance of the evidence that there was a disparity between African American and Caucasian candidates in selection rates for entry level administrative positions in 1993 and 2002-2005, and that this disparity was caused by an unlawful bias against African Americans. The OFCCP has relied primarily on its statistical evidence, as presented by Dr. Crawford, and supported by anecdotal evidence from three unsuccessful applicants. Although the Bank argues that the OFCCP must show a disparity of more than three standard deviations before an inference of discrimination is permissible, this is not consistent with the weigh t of legal authority, which recognizes no such ironclad rule.”
The case started in 1993 with an OFCCP Compliance Review in Atlanta. Various statutes and regulations require that government contractors and subcontractors (1) treat their employees without discrimination based on their color, religion, sex, national origin, age, disability, status as a veteran of the Vietnam Era, or status as a disabled veteran; and (2) take ―affirmative action to employ, advance in employment, and otherwise treat qualified applicants and employees without discrimination based on their color, religion, sex, national origin, age, disability, status as a veteran of the Vietnam Era, or status as a disabled veteran. The OFCCP conducts compliance reviews periodically to determine whether covered government contractors are in compliance with the affirmative action and nondiscrimination requirements of those laws and their implementing regulations. See 41 C.F.R. §60. NationsBank (now Bank of America) complied with the initial request. OFCCP then decided to do an audit on the Tampa, Florida and Columbia, South Carolina locations. NationsBank figured enough was enough so it objected and refused to comply with the review of those facilities.
In March 1995, NationsBank filed an action in the U.S. District Court for the Western District of North Carolina, seeking injunctive relief, alleging that the OFCCP’s selection of the Tampa and Columbia facilities violated the Fourth Amendment’s protection against unreasonable searches. In February of 1997, NationsBank amended its complaint, adding an allegation that OFCCP’s selection of the Charlotte facility also violated the Fourth Amendment. The District Court granted NationsBank’s request for a preliminary injunction, thereby precluding OFCCP from bringing an enforcement action against NationsBank. The U.S. Court of Appeals for the Fourth Circuit subsequently granted summary judgment to OFCCP, thereby vacating the District Court’s preliminary injunction, stating that NationsBank had to first exhaust its administrative remedies.
The OFCCP then filed an Administrative Complaint demanding that NationsBank comply with Executive Order 11246 or risk debarment. Newly-named Bank of America moved for summary decision, contending that OFCCP violated the Fourth Amendment when it selected and searched its Charlotte facility for compliance review.
On August 25, 2000, Administrative Law Judge Richard Huddleston issued a Recommended Decision granting the Bank’s motion for summary decision. Judge Huddleston concluded that OFCCP’s selection of the Charlotte facility was not based on an administrative plan containing neutral criteria, and was arbitrary and unconstitutional. The OFCCP filed exceptions to the Recommended Decision with the Administrative Review Board (hereinafter ―Board). On March 31, 2003, the Board reversed Judge Huddleston’s decision and remanded to the Office of Administrative Law Judges for further proceedings, concluding that the record presented genuine issues of material fact.
See OFCCP, Department of Labor v. Bank of America, No. 00-079 (Mar. 31, 2003).
After a few additional legal maneuvers that lasted until 2004, discovery in the matter began and a hearing was finally scheduled for October 2008. After additional machinations, opening briefs were submitted in September 2009 which led to a decision rendered on January 21, 2010. Here is the subsequent press release. If you actually took the time to read the 66 page decision you would find that there was no direct evidence of discrimination and there was a real battle over whether there was any discrimination at all. This decision represents the exhaustion of the administrative remedies.
After this decision, the Bank then went back to the Circuit court to revive its Fourth Amendment argument which they may have won if not for the fact they voluntarily complied with the OFCCP’s audit, thereby waving and protections. (Note: one reason why you don’t simply hand over the docs). That decision was made by US Magistrate Judge Deborah A. Robinson of the District Court of the District of Columbia on 12/13/11.
With the case was back in her jurisdiction, U.S. Department of Labor Administrative Law Judge Linda S. Chapman ordered Bank of America to pay 1,147 African American job applicants $2,181,593 in back wages and interest for race-based hiring discrimination at the company’s Charlotte facility. This is despite the fact even the OFCCP found no direct evidence of any intent to discrimination on the Banks behalf. In a sense B of A had no way to defend itself other than to say it did what it did for sound hiring purposes. The OFCCP was never required to prove that their argument was a pretext for discrimination.
One can only guess if B of A will try any further appeals. They can still appeal to the Secretary of Labor and then if they lose again, appeal the case to federal court. While they may have lost, commentators believe they forced OFCCP to tighten up their criteria around these “desk audits” and how they select companies to do them.
Congratulations on your appointment. I wish to briefly share what the overall concerns are of the thousands of private company business owners that use our program and that I have had the chance to speak to over the last 14 years. 90% of the companies we work with have between 15- 500 employees. One of the few sectors of the economy with real job growth! So, here you go:
- Allow me to grow my business. Sounds simple, and straightforward, but I can tell you the general feeling is that the government doesn’t support, but rather impedes, this growth. The fact you mention moving away from an adversarial approach is a great start! As corny as it may sound, it is time to start playing win/win.
- Allow me to hire people I can trust. This means inquiries like criminal background, financial, and medical backgrounds are relevant. For example, I can’t trust a felon in general and if I want to engage in a compassionate act and give somebody a second chance then that should be my choice, not a government requirement. This is not an act of discrimination on the part of any employer but one of legitimate concern. Who wants to hire a trouble maker or potential claim? More than anything, employers want to be able to hire on the basis of skills and character: the building blocks of trust.
- Allow my people to be productive. For example, I have worked with JAN (Job Accommodation Network) and have a great deal of respect for the work they do and for people with real disabilities trying to be productive. Unfortunately, I have seen far too many people pull out the disability/discrimination/retaliation card as soon as they realize they may be fired for non-productivity at a job they gave up on years ago. Employers are being told they can’t really understand the nature of a disability but only its limitations. Getting independent medical information is very difficult under the law. As a result of this, well intentioned employers, who are in fact concerned about a worker’s health, have learned that no good deed goes left unpunished. The lesson they often learn is not to proactively offer help because it can and will be used against them.
- Don’t drag me through a frivolous lawsuit simply to satisfy a political agenda. We don’t have the time or money for that. For example, the EEOC and NLRB in particular have “pushed too far” and I’m a former plaintiff’s attorney saying this. For example, I don’t want the NLRB to waste my tax dollars expanding NLRA precedent to protect some disgruntled loser who tweets some seriously damaging information while sitting in the parking lot on his break to another worker who should be getting their job done. This is not “concerted activity” as intended by the laws passed more than 60 years ago designed to protect workers who wanted to put in a hard day’s work for fair pay. It’s simply more social media nonsense dragged into the workplace. And…it is really the NLRB/Administration agenda to get rid of “at-will” employment? Really??
- Lastly, the ACA is a mess. Of course, employers are not in the job of being responsible for the health of others outside legitimate safety concerns. But for now it’s the law so we are stuck with it and as the Administration had to finally concede, it’s confusing as all heck, even to the regulators. I can tell you that many employers and their brokers remain confused about what to do. Pay or play calculators, FAQ’s, checklists, audits, webinars, and more can be used to support the EBSA website.
Let me conclude by saying I understand there are in fact bad people who care neither about their employees or legitimate laws designed to protect them. Most folks I know have zero sympathy for these people. Most business owners I know want to and try to do things right, do care about people, and want a mutual success. What they and I don’t want to see is an agenda that supports anything but good work.
I wish you the best in your new position; our country needs you to be successful.
Don Phin, Esq.
President of HR That Works
P.S. Perhaps you can also get the website to work so folks can really leave you comments. I tried to do so four times but it kept saying I can’t do basic math right!
The case of McGrory v. Applied Signal Technology should give any old school manager a shiver up their spine. In this case Mr. McGrory, a four-year employee had worked his way up to the point where he was managing twelve employees. One of those employees, Dana Thomas, was given a verbal warning for poor performance and, subsequently, a written performance improvement plan. Instead of signing the PIP, she launched a complaint accusing McGrory of creating a hostile work environment because of her gender and sexual orientation (she is a lesbian). She did not claim sexual harassment. As a result of her complaint, the company brought in a female investigator who interviewed McGrory, Thomas, and other employees. In the course of the interview, she asked McGrory to rank his employees as well as to identify any employees who had complained about Ms. Thomas’ performance. In an effort to protect his employees, he chose not to respond to those questions. In the course of the investigation, McGrory readily told the investigator a couple of the jokes that he had told in the workplace which made fun of the accents of English-speaking abilities of an East Indian man, one that made vulgar reference to women’s breasts and a man’s penis. Apparently he continued to make such jokes even though a female subordinate had expressed discomfort with them. He admitted that other men in his department went into an office during and after work hours to tell jokes. He thought this was OK as females were not present. The scene makes me think of a Mad Men episode.
As a result of the investigation, the attorney concluded there was in fact no discrimination against Ms. Thomas and that she in fact had performance problems. She claimed McGrory attempted to impede her investigation. She also concluded that because of this other hostile environment based conduct that termination of McGrory would be justified; as would the imposition of lesser discipline such as a suspension without pay for one month, denial of a bonus, monitoring his performance review meetings, and requiring participation in a management skills class. Viewing McGrory as a liability, the management team decided to terminate him.
As a result, McGrory filed a lawsuit claiming he was the one discriminated against. He also claimed that he had immunity for any statements he made during the investigation, and therefore any allegation he was not cooperative could not be used against him. Bottom line is the court dismissed his case stating that he was an at-will employee and that he was not fired for discriminatory reasons.
Interestingly, the problems with Ms. Thomas continued even after Mr. McGrory’s departure. As a result, she resigned her employment with the company and eventually agreed to a release of all claims and a payment of about $90,000—for alleged poor performance!
Moral of the story: As I indicate in our sexual harassment training programs, this is not your daddy’s workplace. The Mad Men approach does not work in today’s workplace. With anyone. Anytime. No mas. Sorry. Otherwise good managers and decent people can find themselves out of work and out of luck simply because they make stupid remarks and jokes in the workplace. Better to leave those in the home front.
The Department of Fair Employment and Housing recently began enforcing newly revised regulations addressing discrimination based on disability. The final regulations, which took effect on December 30, 2012, primarily update the old regulations. Among other things, the new regulations:
- include several updates to the definition of “disability” to conform to the federal Americans with Disabilities Act Amendments Act of 2008 and the broad definition contained in Government Code section 12926.1;
- provide examples of disabilities including chronic and episodic conditions, and temporary disabilities. The new regulations note a few exclusions from the term “disability,” such as the common cold, mild cuts or abrasions, and the flu;
- clarify that the term “medical condition” may include a “genetic characteristic” (in order to conform to the federal Genetic Information Non-Discrimination Act);
- add guidance regarding the phrase “essential job functions,” and specify that the elements of a discrimination claim now require the employee to establish that he or she can perform the job’s essential functions, with or without accommodation;
- provide more detail regarding the “interactive process” obligations for both employers and employees. Notably, an employee’s exhaustion of California Family Rights Act or Family and Medical Leave Act leave is now considered notice to the employer that the employee may need an accommodation; and
- recognize medical leave as a form of accommodation, but expressly state that employers need not provide “indefinite” leave.
Article courtesy of Thomas Ingrassia of Petit Kohn (www.pettitkohn.com)
In the long awaited case of Harris v. City of Santa Monica the California Supreme Court rules as follows:
“When a plaintiff has shown by a preponderance of the evidence that discrimination was a substantial factor motivating his or her termination, the employer is entitled to demonstrate that legitimate, nondiscriminatory reasons would have led it to make the same decision at the time. If the employer proves by a preponderance of the evidence that it would have made the same decision for lawful reasons, then the plaintiff cannot be awarded damages, backpay, or an order of reinstatement. However, where appropriate, the plaintiff may be entitled to declaratory or injunctive relief. The plaintiff also may be eligible for an award of reasonable attorney‘s fees and costs under section 12965, subdivision (b)….. In light of today’s decision, a jury in a mixed-motive case alleging unlawful termination should be instructed that it must find the employer‘s action was substantially motivated by discrimination before the burden shifts to the employer to make a same-decision showing, and that a same-decision showing precludes an award of reinstatement, backpay, or damages.”
In a recent Federal Court of Appeals case against the Dept. of Veteran Affairs out of San Juan, the court dismissed an age discrimination case in a unique one-page decision basically telling the plaintiff that her counsel was clueless about appellate rules. Out of curiosity I Googled the attorney Elaine Rodríguez-Frank and found that this isn’t the first time the court has dismissed a similar claim against the DVA or similar agency. In fact, most of her cases face a similar result–dismissal. For example http://caselaw.findlaw.com/us-1st-circuit/1220672.html, http://caselaw.findlaw.com/us-1st-circuit/1219526.html and http://www.leagle.com/xmlResult.aspx?xmldoc=2004593326FSupp2d267_1562.xml&docbase=CSLWAR2-1986-2006. Most every case I could find with her name on it was dismissed, usually on procedural grounds. I wonder how her clients felt after they went through the trauma of litigation, only to be kicked out on technicalities? I wonder how much of a financial investment they had to make in these cases. I wonder if Ms. Rodriquez-Frank has it out for the US Government? One more reason why I quit litigating cases–the only ones who benefit in the end are the lawyers.
Pipefitter Otto May, Jr., employed at one of Chrysler’s assembly plants, filed a hostile work environment lawsuit claiming he was subjected to racist and anti-Semitic harassment from his co-workers. The jury awarded May $750,000 in compensatory damages and $3.5 million in punitive damages after a week-long jury trial. Click here to read the article in its entirety.
According to the bill, this amendment to the Fair Employment and Housing Act AB 1964 would clarify that undue hardship, as defined in the Definitions section of the Fair Employment and Housing Act, will also apply to the Religious Discrimination section, clearing up legal confusion of federal vs. state definitions of “undue hardship”. The bill would also specify that religious clothing and hairstyles qualify as a religious belief or observance and that segregating an employee from customers or the public is not a reasonable accommodation of an employee’s religious beliefs now protects “religious dress practice” shall be construed broadly to include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of the observance by an individual of his or her religious creed. “Religious grooming practice” shall be construed broadly to include all forms of head, facial, and body hair that are part of the observance by an individual of his or her religious creed.
The bill, sponsored by The Sikh Coalition would clarify that undue hardship, as defined in the Definitions section of the Fair Employment and Housing Act, will also apply to the Religious Discrimination section, clearing up legal confusion of federal vs. state definitions of “undue hardship”. The bill would also specify that religious clothing and hairstyles qualify as a religious belief or observance and that segregating an employee from customers or the public is not a reasonable accommodation of an employee’s religious beliefs.
To learn more about the bill’s passage, go to http://asmdc.org/members/a08/religious-freedom?layout=category To read an interesting article chronicling the passage of the bill go to http://www.hyphenmagazine.com/blog/archive/2012/08/what-unity-looks-ab-1964
In Shelley v. Geren, a Ninth Circuit opinion, the US Army Corps of Engineers was sued by a long-time manager for age discrimination claiming the Corps failed to interview him and rejected his application for two promotions. The guy who got the job was 42. The Corps also interviewed a 55 year old, two 46 year olds, a 50, and 53 year old. In Gross v. FPL Financial Services (2009), the US Supreme Court found the McDonald Douglas approach to discrimination cases inapplicable to ADEA cases. This means that to bring the age claim, the plaintiff has to bring facts that age was the “but for” cause of his non-selection. In a sense, a “mixed motive” case fails in the age arena, something Congress is attempting to “fix” currently.
The court said that Shelley had a prima facie case because the positions went to a candidate twelve years his junior. The court did give the employer some grief because those making the hiring positions inquired about the projected retirement dates for employees. Despite the absence of names in the capable workforce matrix, the form at the matrix permitted the identification of specific employees. Marsh was also able to overcome dismissal of his case by pointing at his greater experience, education, and recognition. As with most Ninth Circuit cases there was a vigorous dissent.