Federal Court Permits Employer to Fire Transgender Employee

Posted by on Sep 6, 2016 in Gender Discrimination, Supreme Court, Title VII

In 2014, the Supreme Court of the United States ruled in Burwell v. Hobby Lobby, 134 S.Ct. 2751 (2014), that closely-held corporations are exempt from laws to which its owners object on religious grounds, if there is a less restrictive means of furthering the law’s interest. In Burwell, David and Barbara Green owned a family business, Hobby Lobby, and objected to provisions within the Patient Protection and Affordable Care Act (“PPACA”), more commonly known as the “Affordable Care Act” or “Obamacare,” that would have required them to pay for employee insurance coverage that provided access to contraceptives. This controversial decision was hailed by some as a victory for religious freedom, and simultaneously condemned by others as expanding previous Supreme Court decisions that treat corporations like people, notably, Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).

More recently, the Honorable Sean F. Cox, U.S.D.J. of the United States District Court for the Eastern District of Michigan, ruled on the defendant’s motion for summary judgment in Equal Employment Opportunity Comm’n v. R.G. & G.R. Harris Funeral Homes, Inc., 2016 WL 4396083 (E.D. Mich. Aug. 18, 2016), holding that the Supreme Court’s decision in Burwell meant a closely-held corporation could fire a transgender employee who, while transitioning from male to female, wished to begin dressing as a female. Notably, Judge Cox interpreted the Religious Freedom Restoration Act of 1993 (“RFRA”), in accordance with the Burwell decision, to mean that the sincerely held religious beliefs of a corporation provide an exemption to state and federal law unless the government can show a need to advance a compelling interest and that the requested means is the least-restrictive method of protecting such an interest. Accordingly, Judge Cox held that employers could terminate employees for the reasons described below.

In Harris, the EEOC argued that an employee’s right to not be discriminated against on the basis of transgender status or gender identity was protected by Title VII of the Civil Rights Act of 1964, which prohibits employers from discharging or otherwise discriminating against any individual with respect to compensation, terms, conditions, or privileges of employment “because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1). Judge Cox stated that enforcement of Title VII would impose a substantial burden on the corporation’s ability to conduct business in accordance with its sincerely held religious beliefs, in violation of RFRA, and the EEOC’s demand of allowing the employee to wear women’s attire was not the least-restrictive method of protecting the employee’s interest in not being discriminated against.

Notably, Judge Cox pointed out the employer’s mission statement, which points to “its highest priority” as “honor[ing] God in all that we do as a company and as individuals,” as evidence of their sincerely held religious beliefs. In contrast, Judge Cox noted the employee’s desire to dress “in a stereotypical feminine manner (wearing a skirt-suit),” which would allow for gender expression, and that the EEOC refused to consider whether the employer would be willing to accept gender-neutral attire that still allowed for gender expression. As a suggestion, Judge Cox proposed a “dark-colored suit, consisting of matching business jacket and pants, but without a neck tie.”

Given Citizens United, Burwell, and now Harris, there appears to be a trend of federal case law indicating that corporations may be treated like individuals, and that the religious beliefs of a closely-held corporation’s owners can override federal protections against discrimination. As it appears likely that the EEOC will appeal this decision to the United States Court of Appeals for the Sixth Circuit, both employers and employees should continue to track its progress through the legal system.

Hill Wallack employment law attorneys are available to help navigate issues such as these and how they may affect clients in New Jersey, New York, and Pennsylvania.

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Governor Christie Vetoes Amendment to New Jersey Law Against Discrimination

Posted by on Jun 23, 2016 in Gender Discrimination, Racial Discrimination, Uncategorized

On May 2, 2016, New Jersey Governor Chris Christie conditionally vetoed Senate Bill 992 (“S. 992”), which was intended to amend the New Jersey Law Against Discrimination (“NJ LAD”) to make wage disparities among similarly situated employees expressly unlawful. While S. 992 is aimed at reducing gendered or race-based pay disparity, Governor Christie stated that the bill would make New Jersey “very business unfriendly,” and criticized several aspects, including:

  1. Restarting the statute of limitations each time an employee receives unequal pay, and allowing for back pay for the entire period of continuous violation, which is currently capped at two years and is identical to the federal Lily Ledbetter Fair Pay Act of 2009;
  2. Prohibiting employers from requiring employees to waive or voluntarily limit their equal pay protections;
  3. Allowing treble damages upon any employer found to be in violation;
  4. Protecting employees from retaliation if they disclose their salary to a co-worker; and
  5. Shifting responsibility and burden of proof to the employer to justify pay differences, which would be permitted only based on seniority, merit, or objective factors such as training, experience, education, and productivity.

Additionally, S. 992 is substantially similar to the California Fair Pay Act, which was adopted last year. Governor Christie has made several recommendations, with which he would revoke his veto and sign a revised version of S. 992. Some of these recommendations include eliminating fact-based evaluation in alleged discrimination cases as well as treble damages. Governor Christie also would like the revised version to limit back pay to two years, as opposed to the proposed unlimited amount. While S. 992 passed the State Senate by a vote of 28 to 4, and the General Assembly by a vote of 54 to 14 to 6, it is unclear whether the legislature will attempt to override Governor Christie’s veto, which requires a two-thirds margin.

Employers should be mindful of the status of this bill, along with others like it, as there will be far-reaching consequences should one be successful in being signed into law. Hill Wallack employment law attorneys are available to help navigate issues such as these and how they may affect clients in New Jersey, New York, and Pennsylvania.

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EEOC Issues Fact Sheet Reminding Employers Not to Discriminate Restroom Use Based on Gender

Posted by on May 31, 2016 in Gender Discrimination, Sexual Orientation Discrimination

-Scott D. Salmon, Esq. and Susan L. Swatski, Esq.

North Carolina (as well as other states) has become infamous for HB-2, a law that restricts restroom use in government buildings based on the gender listed on an individual’s birth certificate, and which is directed towards transgender individuals. The law additionally prohibits municipalities from enacting anti-discrimination laws of their own.

The reaction to HB-2 has been swift and furious. PayPal and Deutsche Bank, among other businesses, are halting planned expansions into the state, and multiple cities and states across the country have implemented travel bans for government employees going to North Carolina. The National Basketball Association (“NBA”) said it will change the location of the 2017 All-Star Game if the law does not change, and a significant number of filming projects and entertainers are refusing to perform in North Carolina, which has led some experts to conclude that North Carolina will lose $77 million in revenue as a result of HB-2. Additionally, the American Civil Liberties Union filed a federal lawsuit challenging the law; the case is captioned, Carcaño v. McCrory and is pending in the U.S. District Court for the Middle District of North Carolina. Also, the United States Department of Justice and the State of North Carolina are currently in litigation over whether HB-2 violates Title VII of the Civil Rights Act and Title IX of the Education Amendments of 1972.

In response to HB-2 and similar laws in other states, the Equal Employment Opportunity Commission (“EEOC”) issued a fact sheet to remind employers that discrimination based on transgender status is sexual discrimination under Title VII of the Civil Rights Act. The EEOC’s fact sheet also reminded employers that HB-2, and other similar state laws, is not a defense to any action brought under federal laws. The EEOC’s fact sheet goes on to state, based on multiple rulings:

  1. denying an employee equal access to a common restroom corresponding to the employee’s gender identity is sexual discrimination;
  2. an employer cannot condition this right on the employee undergoing or providing proof of surgery or any other medical procedure; and,
  3. an employer cannot avoid the requirement to provide equal access to a common restroom by restricting a transgender employee to a single-user restroom.

In addition, the EEOC fact sheet warns that “gender-based stereotypes, perceptions, or comfort level must not interfere with the ability of any employee to work free from discrimination, including harassment.”

While employers everywhere should be mindful of the EEOC’s position on this matter, it is especially important for those in states subject to laws such as HB-2, as contrary state law is not a defense against potential litigation given the federal statutes. Hill Wallack employment law attorneys are available to help navigate issues such as these and how they may affect clients in New Jersey, New York, and Pennsylvania.

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Recent Amendments to New York Law Provides More Protections to Women in the Workplace

Posted by on Feb 4, 2016 in Gender Discrimination, Pregnancy Discrimination, Sexual Harassment

On October 21, 2015, Governor Andrew Cuomo signed multiple pieces of legislation designed to protect and further women’s equality in the State of New York. While the new laws, which all went into effect on January 19, 2016, deal with a broad range of legal issues, including human trafficking and domestic violence, a substantial focus of the legislation was strengthening women’s rights in the workplace.

All of these changes are not merely cosmetic, or intended to codify prior court decisions. Rather, they represent significant substantive changes to New York employment law, and have substantially updated what many deemed to be outdated and incomplete protections for women in the workplace (though all of these changes, sans pregnancy, apply equally to men).

Should you have any questions or require further detail regarding this legislation, the employment and labor attorneys at Hill Wallack LLP are fully prepared to assist and help guide you through this sea of change.

Pay Equity- the first piece of legislation amended New York Labor Law s. 194, which addresses equal pay in the workplace. The bill eliminates a loophole in the prior law that allowed employers to prohibit employees from discussing their salaries (as well as the salaries of others) under the threat of termination or suspension. Specifically, the bill would allow employees to discuss their wages with each other. Further, the bill increases the amount of damages available to an employee if an employer willfully violates the law.

Sexual Harassment- another bill amends the New York State Human Rights Law (“NYSHRL”) to protect all employees from sexual harassment in the workplace regardless of the size of the employer. Previously, the definition of “employer” excluded employers with fewer than four employees, thus prohibiting individuals from filing harassment complaints with the Division of Human Rights against those employers. This new law expands the definition of “employer” to cover all employers within New York in sexual harassment cases so that an employee of any business, regardless of size, can file a workplace sexual harassment complaint.

Attorneys’ Fees- a further bill now allows successful plaintiffs to recover attorneys’ fees in employment discrimination cases based on sex. Under prior New York State law, plaintiffs could not recover attorney fees for employment discrimination cases, making it costly to bring a case.

Familial Status- an additional amendment to the NYSHRL prohibits employment discrimination based on familial status. Previously, New York State law only prohibited discrimination based on familial status in the areas of housing and credit, however, employees often suffer from stereotypes relative to their status as parents or guardians of children under the age of eighteen. It is believed that women have been disproportionately affected by stereotyped views of parents in the work place and are less likely to be recommended for hire or promoted.

Pregnancy Discrimination- a further amendment to the NYSHRL now requires employers to provide reasonable accommodations for pregnant employees (or those suffering from “pregnancy-related conditions”). Some pregnancies can result in medical conditions requiring certain accommodations within the workplace and prior protections for pregnant women were deemed confusing and subject to misinterpretation. This new law clarifies that employers must perform a reasonable accommodation analysis for pregnant employees. Essentially this amendment puts pregnant women, as well as those suffering from pregnancy-related conditions, on equal footing with disabled employees when it comes to requests for reasonable workplace accommodations.

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“BORGATA BABES” LOSE BID TO OVERTURN DISMISSAL OF SEX DISCRIMINATION AND HARASSMENT CLAIMS

Posted by on Sep 24, 2015 in Gender Discrimination, Sexual Harassment

The bid by a majority of a group of twenty-one (21) plaintiffs, all former employees of the Borgata Casino Hotel & Spa, to overturn the dismissal of their sex discrimination and sexual harassment claims was recently rejected by the Appellate Division. The plaintiffs were employed as “Borgata Babes,” a specialized group of costumed beverage servers on the Borgata casino floor. As “Borgata Babes,” the plaintiffs were subject to specific “personal appearance standards” (“PAS”) that governed the plaintiffs’ dress, appearance, weight and overall grooming. While the plaintiffs in this case were all female, the “Borgata Babes” also included men who were subject to a similar PAS.

The trial court dismissed the entirety of the plaintiffs’ claims on summary judgment, finding that the PAS did not constitute gender stereotyping nor did it have a disparate impact on the female employees. In an opinion published on September 17, 2015, the Appellate Division readily agreed with the trial court’s ruling. However, the Appellate Division did reverse the dismissal of those claims asserted by some of the plaintiffs that the weight policy set forth in the PAS was applied in a discriminatory harassing manner by unlawfully targeting female employees returning from maternity and medical leave. Those claims were remanded back to the trial court for further proceedings.

Given the hotly-contested nature of this litigation, it is highly likely that the plaintiffs will next ask the New Jersey Supreme Court to certify the matter for appeal. Moreover, given the attention this case has garnered in the media as well as the somewhat novel factual circumstances giving rise to the claims themselves, there is a decent chance of the Supreme Court granting certification and hearing the appeal.

We will continue to monitor the case as it progresses, as its novel, broad-ranging issues could have an impact on various employers, such as restaurants, hotels, professional sports franchises and adult-oriented businesses.

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Pennsylvania Civil Rights Laws Still Does Not Protect Against Discrimination Based on Sexual Orientation

Posted by on Jun 10, 2009 in Gender Discrimination, Sexual Orientation Discrimination

By: Tiffanie Benfer, Esq.
While other states are raising the bar on equality and recognizing marriages of same-sex couples, Pennsylvania still fails to provide basic equal right to approximately a million Pennsylvanians.
Pennsylvania civil rights laws provide no protection to Lesbian, Gay, Bi-Sexual, and Transgender people (LGBT). The Pennsylvania Human Relations Act (PHRA), provides protection against discrimination in housing, employment, and public accommodations on the basis of race, color, religion, ancestry, age, national origin, handicap or disability, education and use of a guide dog, but completely fails to provide any protection for sexual orientation, gender identity, or gender expression.

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