Articles Posted in Employment Discrimination

The Montana Supreme Court has ruled that obesity discrimination is illegal under its state human rights law, as reported last week by the San Francisco Chronicle. The court’s decision marks an unprecedented step towards recognition of obesity as a protected status under both state and federal antidiscrimination laws.

The Montana Supreme Court made its ruling in response to a certified question from the District Court of Montana on the state’s stance on the issue. The case in question, BNSF Railway Co. v. Feit, had been filed under the Montana Human Rights Act by an applicant who claims he was rejected for a position at a railway company because of his obesity. Eric Feit was offered a conditional offer of employment as a conductor trainee at the company, contingent on his passing a drug screening, physical examination and background check. After passing all these screening tests, the company told him that they would only hire him if he lost 10 percent of his body weight and underwent further physical examinations at his own expense, including s sleeping study.

Feit lost the weight, and took all the required examinations except one. He was unable to take the sleeping study however, which at $1,800 he could not afford. After the company refused to hire him, Feit filed suit against the railway company for discriminating against him because of a physical disability under the Montana Human Rights Act.

The Equal Employment Opportunity Commission has begun investigating beauty bias at a chain of Boston coffee shops, indicating a possible growing expansion of the protections of the federal antidiscrimination laws. The investigations were reported by the Boston Globe last month, which had been alerted by the owner of the Marylou’s chain of coffee shops of the EEOC’s interviewing of its former and current employees.

According to the Boston Globe, the EEOC had not received any complaints before its investigation but had initiated it on its own. The Marylou’s chain of coffee shops is known throughout the Boston area for commercials featuring young women in pink and black shorts. The investigation supposedly was triggered by the commercials and by the fact that servers at the restaurant were also often young women in revealing clothing. While the EEOC has not commented on the issue, Marylou’s claims that the agency has been interviewing applicants, workers and customers for months, in what the coffee chain characterized as a “witch hunt.”

While the EEOC has not clarified the basis of its investigation, media commentators have set forth that the agency is targeting beauty bias at the chain. If correct, then this will be the first indication of a move by the EEOC towards a more expansive view of the protections afforded under the federal antidiscrimination laws.

In one of the most controversial decisions in sex discrimination law this year, the Maine Human Rights Commission has found that taking work outings at a strip club is not illegal sex discrimination. This case concerns medical residents at Maine Medical Center, one of the largest hospitals in New England, who were pressured by their supervisors to join them at a strip club at the end of a regional medical conference. One of the hospital administrators complained about the practice, which occurred yearly and had become somewhat a tradition for the Center. He alleges that after he complained about the practice, which he feared was illegal sex discrimination, he was demoted and retaliated against in other ways.

The Maine Human Rights Commission decided this week that the hospital administrator’s suit was without merit as he had not been illegally retaliated against. The Commission went further as well, in finding that the Medical Center’s tradition of pressuring male residents to attend a strip club at the end of the yearly conference was not a problem. This was even after the administrator gave evidence that female residents were excluded from the trips, and for the male residents attending was “almost a requirement.”

The Commission’s decision that the work trips to the strip club was not illegal sex discrimination flies in the face of dozens of decisions across the country finding otherwise. For example, in 2004, Morgan Stanley paid $54 million to settle a suit by its female employees who claimed they were excluded from client meetings that took place at strip clubs. The New York Stock Exchange in 2006 issued policies discouraging outings at sexually explicit venues that could isolate or create a hostile environment for certain employees.

The Equal Employment Opportunity Commission (EEOC) is becoming more aggressive in pursuing employers that have blanket bans excluding those with criminal records from jobs, as reported in the New York Times today. Many employers are not ready for this aggressive enforcement of EEOC policy, as the New York Times found, and are not educated on what actions can put them into hot water.

The EEOC issued a guidance in late April clarifying what actions it would consider to be unlawful discrimination against those with criminal records. While no federal law directly prohibits discrimination against people with a criminal record, employers may still be liable if their discrimination runs into one of the prohibitions against race, sex, or national origin discrimination. The way this can happen is if employers in discriminating against those with criminal records also discriminate against those within these protected classes. The main example for this case is race. The EEOC in its guidance clarified how employers by discriminating against those with criminal records may be found liable for race discrimination under Title VII of the Civil Rights Act of 1964.

The EEOC will pursue actions against employers who exclude all those with criminal records based on two theories of antidiscrimination law, disparate treatment and disparate impact. Under disparate treatment, an employer may be found liable for discriminating against those with criminal records if they use that as a cover up to discriminate based on race. One way this can occur is if an employer has a blanket ban on hiring those with any criminal record but only applies that ban when the prospective employee is Hispanic, for example. This example is mostly uncontroversial, and few employers seem confused that this action would be discrimination.

San Francisco Judge Charles Breyer expressed concerns in court this week about reviving in California federal court sex discrimination claims dismissed by the Supreme Court in Wal-Mart v. Dukes. California residents who had been part of the earlier class action suit dismissed by the Supreme Court last year now are confining their claims to California in the suit filed in the Northern District Court of California. They are alleging the same claims of sex discrimination in pay and promotion that led to female workers at Wal-Mart being disproportionately excluded from management positions and paid lower salaries than similarly situated male co-workers. These plaintiffs claim that the California federal court should not dismiss their claim because here they are confining themselves to female workers in California and not bringing suit on behalf of all female workers across the nation as in Dukes.

The largest civil rights suit in history, Wal-Mart v. Dukes attempted to bring suit on behalf of more than 1.5 million female workers who plaintiffs alleged had been subject to a nation-wide policy of sex discrimination at the company. In a 5-4 decision, the Supreme Court rejected the suit, finding that it was not appropriate for class action as not all of the over 1 .5 million female workers at Wal-Mart included in the suit faced similar enough discriminatory action or damages. The Court found that individual discrimination suits by each of the women was more appropriate, as it would give Wal-Mart the fair opportunity to defend itself from each claim. According to the Court, a class action suit would not allow Wal-Mart a fair chance to address the unique discrimination each woman might have faced.

While Wal-Mart workers around the country in response to the 2011 decision have already filed over 2,000 individual claims with the Equal Employment and Opportunity Commission, the California workers in this case attempted another class action. Here the workers attempted to file suit for all female workers across the state of California, in contrast to Dukes which was filed on behalf of female workers across the entire nation. The District Court Judge in San Francisco yesterday expressed concern that this case would face the exact same problems as in Dukes The Judge was skeptical that the plaintiffs would be able prove that their claims were similar enough to overcome the procedural hurdles of class action certification.

Even with President Obama’s recent endorsement of same-sex marriage, and multiple courts around the country finding the Defense of Marriage Act unconstitutional, many gay and lesbian workers still feel under fire. A recent article in the Los Angeles Times today demonstrates the discrimination many gay and lesbian workers continue to face in the workplace. The article profiled a high school water polo coach in Covina, California, just outside Los Angeles, who was fired for photos he had posted publicly on his social media networking accounts that showed him posing with drag queens at a party and jokingly playing with food while at a county fair with friends. It seems that after a person anonymously delivered printouts of the photos to administrators at the high school he worked at (and which his daughter also attends), he was fired. While terminating him, his supervisor, the principal of Covina’s Charter Oak High School, allegedly told him that employees at the high school were held to a “higher standard.” A higher standard indeed; after all, the photos had been posted years ago, before his employment at the school, and it took an anonymous tip for the school even to be aware of them. The fired coach immediately sued, alleging sexual orientation discrimination, and his case is now pending in the Los Angeles County Superior Court.

Even though gay rights and gay marriage are still hotly contested issues throughout the country, one thing should be clear to employers however: in California, sexual orientation discrimination is illegal and has been for years. Employers are not allowed to hold gay and lesbian workers to a “higher standard” than their other employees. While the federal government has never passed a law prohibiting discrimination by private employers based on sexual orientation, many states have. Currently 21 states and the District of Columbia prohibit sexual orientation discrimination, as do dozens of cities and counties around the country. California was one of the earliest states to prohibit discrimination based on sexual orientation, with the passage in 1992 of Labor Code Section 1102.1. Although the labor code was subsequently repealed, sexual orientation discrimination in the workplace continues to be prohibited under the California Fair Employment and Housing Act, Gov. Code §12940 et seq. Sexual orientation discrimination has also been prohibited by many cities and counties in California, including San Francisco.

What this means is that employment discrimination based on sexual orientation is just as illegal in California as discrimination based on sex, race, ethnic origin or religion. That means in a case like that of the water polo coach above, he only needs to show that he was treated differently than non-gay employees in the decision to terminate him. One way the coach can show that is by providing evidence that other employees who had acted similarly were not fired. For example, if other employees also had public photos on their social networking sites of them acting similarly, yet the school never terminated them, that would be strong evidence of illegal sexual orientation discrimination. Likewise, other evidence that gay or lesbian workers were disproportionately fired, like alleged in the article, would also help his case. Any evidence of harassment or stray comments indicating bias against gay or lesbian people would further strengthen his claim.

Yesterday Senate Democrats introduced another “Fair Pay Bill” into the Senate with the support of President Obama, as reported by the Associated Press. This bill, sponsored by Sen. Barbara Mikulski, D-Md., would greatly extend the protections of the 2009 Lilly Ledbetter Fair Pay Act, and force employers to better track discriminatory pay inequalities by gender and provide greater justifications for such pay differences. While the probable passage of the new bill is slight, this new proposal does highlight the continuing issues facing many women in the workforce who continue to be paid less then men for the same work.

The Lily Ledbetter Fair Pay Act of 2009 was passed in response to a Supreme Court ruling in 2007 that threw out a pay equality case by Lily Ledbetter, who worked as a supervisor at Goodyear for over 19 years. Six months before she retired in 1998, she filed suit with the Equal Employment Opportunity Commission alleging that she was paid significantly less than her male colleagues for the same work: at the time she retired she was the only female area manager at her plant and made $3,727 a month. The lowest paid male area manager in comparison made $4,286 a month and the highest paid $5,236 a month. This pay discrepancy carried over and affected her employer’s 401(k) contributions, her social security benefits eligibility and her overtime pay, causing her to lose hundreds of thousands of dollars in compensation over her 19 years. When the case was brought to the Supreme Court, the Court did not question the fact that she was paid less than comparable male workers. They did even question the fact that this may have been due to sex discrimination. The Court threw out the case because it interpreted the statute of limitations provisions of Title VII of the Civil Rights Act of 1964 as barring her complaint because she waited too long to file after she discovered she was being paid less than her male colleagues. Ledbetter discovered the pay discrepancy in 1992, but only filed suit six months before she retired, in 1998. According to the court, that barred her claim, as the 180 days statute of limitations had already tolled in 1993.

The Court’s decision was met with disbelief by Republicans and Democrats alike, and President Obama’s first signed act of Congress on January 29 just 9 days after his inauguration, was the Lily Ledbetter Fair Pay Act of 2009. This Act set the tolling start date for the statute of limitations for a claim of pay equality as 180 days after any discrete act of pay equality discrimination. The Act defines a discriminatory act as not being limited to the first decision to discriminate; any subsequent act based on that discrimination would re-set the statute of limitations clock. As such, in Ledbetter’s case, every single new paycheck issued was a new act of discrimination and her claim would have been barred at the earliest 180 days after her last paycheck at Goodyear, into late 1999.

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