Tag: Discrimination

EEOC FILES FIRST SUITS ALLEGING SEXUAL ORIENTATION DISCRIMINATION

The EEOC announced Monday that it has filed its first two sex discrimination lawsuits based on sexual orientation.  The EEOC has sued Scott Medical Health Care Center, a pain-control and weight-loss clinic in Pennsylvania and a Maryland branch of IFCO Systems, a global pallet company.

In the case against Scott Medical, the EEOC alleges that a gay male telemarketer, Dale Baxley, was subjected to harassment because of his sexual orientation.  According to its press release, the EEOC stated that the employee’s manager frequently used anti-gay slurs and “other highly offensive comments about his sexuality and sex life.”  When Baxley complained to the clinical director, no action was taken to stop the harassment, and instead, the director reasoned that Baxley’s manager was “just doing his job.”

Similarly, in the EEOC’s claim against IFCO, the EEOC charged that a lesbian employee, Yolanda Boone, was harassed due to her sexual orientation and appearance.  The EEOC alleges that her manager made comments such as, “I want to turn you back into a woman” and asked if Boone was male or female. The manager is also alleged to have made inappropriate and suggestive remarks.  Boone registered her complaints to management and also called an employee hotline about the harassment.  She was asked to resign a few days later, but when she refused, she was fired.

These cases are significant since this is the first time the EEOC has filed suits alleging sex discrimination based on sexual orientation.  Last year, the EEOC issued a landmark ruling that discrimination against gay, lesbian and bisexual employees is against federal law, namely, Title VII of the Civil Rights Act of 1964, and sexual orientation discrimination, by its nature, is considered discrimination because of sex.

NEW YORK CITY BANS EMPLOYMENT DISCRIMINATION ON THE BASIS OF “CAREGIVER” STATUS

On January 5, 2016, Mayor Bill de Blasio signed into law legislation that will amend the New York City Human Rights Law (“NYCHRL”) to protect caregivers from discrimination in the workplace. The NYCHRL already prohibits employment discrimination based on, for example, age, sex, creed, race, color, national original, gender, disability and sexual orientation, among others. This new law adds caregiver to the list. A caregiver, under the law, is defined as “a person who provides direct and ongoing care for a minor child or care recipient” which includes an individual with a disability who is a relative of the caregiver, or a person who resides in the caregiver’s household and relies upon the caregiver for medical care or to meet the needs of daily living.

This new law prohibits employment discrimination on an individual’s actual or perceived status as a caregiver. As such, an applicant’s or employee’s caregiving responsibilities must be excluded from the decision-making process regarding whether to hire, promote, terminate or otherwise affect that individual’s terms and conditions of employment. The purpose of this amendment, as stated by Gale Brewer, Manhattan borough president, is to “combat discrimination on the basis of family responsibilities, which can occur when employees with caregiving responsibilities are treated less favorably due to a perception that they may be less committed to their work because of external obligations.”

In Mayor de Blasio’s press release, he stated, “caregivers are our unsung heroes. They literally keep families together. It’s critical we give them the employment protection they need and deserve.” New York City has some of the most employee-friendly regulations in the country and this new protection is another example of such. The law will take effect on April 14, 2016.

TEMP WORKER QUALIFIES AS EMPLOYEE IN DISCRIMINATION SUIT

The Third Circuit recently ruled that a client of a temporary staffing agency could be considered an employer in race bias suit. In Faush v. Tuesday Morning, Inc., Labor Ready, a temporary staffing agency, assigned Faush to work at a home-goods retail store, Tuesday Morning. Faush’s duties included unloading merchandise, setting up display shelves and stocking merchandise. In his lawsuit, Faush claims that he and other African-American temporary employees were subjected to racial slurs, accused of stealing and was told by the store owner’s mother to work in back of the store with the garbage until it was time to leave. Faush was terminated. He sued Tuesday Morning under Title VII, the Pennsylvania Human Rights Act and other statutes alleging race discrimination.

The lower court granted Tuesday Morning’s motion for summary judgment, concluding that Tuesday Morning was not Faush’s employer and thus could not be held liable for discrimination under the statutes. Faush appealed the lower court’s decision, and the Third Circuit reversed. The Court found that the employment arrangement between Labor Ready and Tuesday Morning rendered the store liable for Faush’s discrimination claims. Although the Court found that the staffing agency paid Faush’s wages, payroll taxes, and maintained workers’ compensation insurance for him, the Court ruled that Tuesday Morning was, in fact, Faush’s employer under the Darden test because the store controlled his employment, pay and daily activities. The case was remanded and sent back to the lower court for further proceedings.

This decision is significant for both temporary employment firms and businesses that use temporary workers. The full decision can be read here.

NEW JERSEY GOVERNOR CHRIS CHRISTIE SIGNS BILL PROHIBITING PREGNANCY-RELATED DISCRIMINATION IN THE WORKPLACE

The New Jersey legislature has noted that pregnant women can be vulnerable to discrimination in the workplace.  There have been reports that women who have requested an accommodation due to their pregnancy-related needs or issues have been unfairly denied reasonable accommodations or have been demoted, terminated or placed on unpaid leave.

Recognizing the pervasiveness of this discriminatory treatment in the workplace, on January 21, 2014, New Jersey Governor Chris Christie signed into law Bill No. S2995 (substituted for A4486), which amends the New Jersey Law Against Discrimination (“NJ LAD”).  Effective immediately, this amendment now prohibits workplace discrimination against women affected by pregnancy, childbirth, or related medical conditions.  The law specifies that women affected by pregnancy should not be treated in a manner less favorable than other persons not affected by pregnancy.

  Moreover, the bill requires that an employer provide a reasonable accommodation for pregnancy-related needs when requested by the employee with the advice of her physician.  The law contemplates accommodations such as bathroom breaks or breaks for increased water intakes, periodic rest, assistance with manual labor, job restructuring or modified work schedules, and temporary transfers to less strenuous or hazardous work.  Note however, that similar to the Americans with Disability Act (“ADA”), an employer will not be penalized for failing to provide an accommodation if the accommodation would cause the employer an undue hardship.