February 06, 2016

From the Blogs - Focusing on Unlawful Discrimination - Posted by Employment Law News

From the Blogs - Focusing on Unlawful Discrimination - Posted by Employment Law News
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Religious accommodation of an atheist employee, protecting a male employee against sexual harassment, and prohibiting discrimination against white employees, are just a few recent examples of the broad reach of our federal anti-discrimination laws. Those laws may have developed in reaction to injustices against particular groups of individuals (e.g., African-Americans), but the law today is more focused on categorical discrimination (e.g., discrimination based on race—any race). Moreover, those categories, including race, gender, religion, disability, and more, are expanding. Some recent examples:

Atheist employee fired for taping over religious message on ID badge.
An atheist employee, who was fired after refusing to remove the tape covering an employer’s religious mission statement on the back of his company ID badge, can proceed to trial on his Title VII and state law failure-to-accommodate and retaliation claims, ruled a federal district court in Pennsylvania. Whether the accommodation would impose an undue hardship on the employer will be determined at trial (Mathis v. Christian Heating and Air Conditioning, Inc.).

Male victims of sexual harassment.
Recent cases indicate male employees are not taken as seriously as female employees when they complain of sexual harassment, but courts interpret Title VII to afford them the same protections. For example, when a male mechanic repeatedly complained that a male coworker followed him into the restroom, made sexually inappropriate comments, discussed homosexual sex acts, and touched him physically, his supervisor treated the complaint as a joke. The mechanic then complained to HR, which encouraged him to “do what was right for the company,” especially considering how a complaint over “gay rights” would appear. Perhaps unsurprisingly, a federal court sent his hostile work environment claim under Title VII to trial (Davis v. Gregory Poole Equipment Co.).

In another case, when a male maintenance worker complained that a female manager made unwanted advances, remarked on his looks, and sexted him, a safety director suggested the texts were meant for someone else and told the worker to confront her and work things out himself. After he was fired and filed suit, the director admitted he might have reacted differently if the alleged victim of harassment had been female. Though the employee’s sexual harassment claim failed because the misconduct wasn’t severe or pervasive, his retaliation claim survived summary judgment to the extent it was based on his complaint to the director, that had he been female and the harasser male, the employer would have reacted differently. The employer failed to oppose this argument (Gilley v. Kelly & Picerne, Inc. dba Alabaster Bay Apartment Homes).

Sexual harassment by wannabe mother-in-law.
In one rather unusual case, a court found that a TV station employee stated a plausible sexual harassment claim where she alleged not a single sexual advance. Instead, she claimed that a female supervisor had her fired after she rejected the ongoing attempts by the supervisor to get the employee marry her son, who was also the company’s CEO. At one point, on a business trip, the supervisor said “I’m going to be your mother one way or another. Either you will marry [the CEO] or I will marry your father and be your stepmother” (Allen v. TV One, LLC).

White employee fired for policy violation while minorities were not.
An employee at an early education center claimed her employer violated Title VII by firing her because she is white. She had asked an African-American coworker, who was also a student’s grandmother, to ask her daughter to call the school about substituting Almond Milk for regular milk with respect to the student. The employee was fired for allegedly discussing private information with someone other than a parent or guardian. Finding triable issues of fact on her race discrimination claim, the court noted evidence that African-American employees also violated policy but were not fired, and that the employee’s conduct may not actually have violated confidentiality requirements (Callaway v. Region 10 Education Service Center).

Associational discrimination – disability.
Another type of discrimination recognized under federal laws involves bias against an employee based on close association with someone who falls within a protected category (e.g., partner, child, other family member). These types of cases often occur under the ADA, which specifically prohibits discrimination against a qualified individual because of the disability of an individual with whom he or she is known to have a relationship or association. In one case, a senior VP’s note that an employee was “given special consideration” and her supervisor’s remark about her “retarded brother” suggested that her relationship with her blind and severely autistic brother-in-law was a factor in the decision to fire her, so her association discrimination claims would go to trial (Smith v. First Tennessee Bank, N.A.). In another case, an employee who alleged he was fired after missing several weeks to care for his ailing wife, who had spinal meningitis, stated a plausible claim for relief under the ADA’s discrimination by association provision (Pollere v. USIG Pennsylvania, Inc.).

Interracial couples and associational discrimination.
Another type of associational discrimination involves interracial couples. In one recent Title VII case, two employees were treated differently after they started dating because one was black and the other was white. They were told by their supervisors that their relationship was “disgusting” and “sickening” and supervisors started enforcing rules against them (like no personal calls at work, and no eating lunch at another employee’s work station) but did not enforce those rules against others (Autrey v. State of Maryland). In another case, a Native American employee who was dating an African-American man will have a jury decide whether her supervisors subjected her to a hostile work environment based on her association with her boyfriend. She claimed they repeatedly engaged in offensive and threatening behavior, including calling biracial couples “n***er lovers” and biracial kids “half n***er” (Maddox v. Grimmer Realty).

Age discrimination as between two older employees.
Under the ADEA, it is unlawful to discriminate based on someone’s older age (age 40 and over, to be specific) but not against someone who is younger than 40. In that respect, there really is no “reverse” age discrimination under the ADEA. However, the Act is still flexible in that, as between two employees who are both over the age of 40, employers cannot unlawfully favor the younger of the two if the age difference is “substantial” (most courts find 10 years or more to be significant). Yet difference in ages is not the only consideration. In one case, a border patrol agent in his mid-50’s who was denied a promotion given to four individuals in their 40’s did not have an age difference of more than 10 years, but other factors suggested age was considered, including the decisionmaker’s questions on the employee’s plan for retirement and an expressed preference for hiring “young, dynamic agents” for the new positions (France v. Johnson).

Sex stereotyping.
Discrimination based on a failure to conform to the stereotype of masculine and feminine is considered sex discrimination. In one case, evidence that harassment such as being threatened, physically restrained, punched, and poked in the anal region was directed at male employees of an oil and gas company crew who were considered “less manly” was enough to send one harassed employee’s Title VII claims to the jury (Arredondo v. Estrada). In another case, a federal court in Oregon held that a jury should decide the sex discrimination claims of a medical technician who alleged that her employment contract was not renewed because she was considered a “strong woman” who wanted to do things “her way” (Tornabene v. Northwest Permanente, P.C.). Similarly, a federal court in Michigan found triable issues of fact on a hotel housekeeper’s Title VII claim that she was terminated because she failed to conform to traditional gender stereotypes. Specifically, the supervisor allegedly said the housekeeper was too “mannish” and that the supervisor didn’t want to work with her because she “acted too manly” (Reed v. South Bend Nights, Inc. dba Best Western Hospitality Hotel).

Transgender discrimination.
Some interesting issues are emerging in discrimination cases by transgender employees. In one case, the Eleventh Circuit reversed summary judgment on a Title VII claim, finding that comments by a company owner that he was “very nervous” about a auto mechanic’s gender transition and the “possible ramifications” that it might affect business, as well as the imposition of discipline only after the mechanic announced her gender transition, raised triable questions on whether gender bias was a motivating factor in the decision to terminate the mechanic (Chavez v. Credit Nation Auto Sales, LLC). In another case involving claims that an employer fostered a hostile work environment by demanding an employee provide overly intrusive personal information on his anatomical changes, among other actions, the employer sought the same kind of information in discovery, including details on the employee’s surgeries and hormone therapy. Finding the requests “grossly out of proportion” to what the employer legitimately needed for its defense, the court denied its motion to compel production of the evidence (Roberts v. Clark County School District).

What about sexual orientation?
One question that crops up repeatedly is: Why do courts consider it to be sex discrimination to treat someone unfavorably because they do not fit sexual stereotypes, yet most courts don’t consider discrimination against homosexual individuals to be discrimination “based on sex?” Recently, the EEOC filed an amicus brief with the Eleventh Circuit in Burrows v. College of Central Florida, asserting that sexual orientation is equal to sex discrimination because: 1) it necessarily involves sex stereotyping; 2) it amounts to gender-based associational discrimination; and 3) Title VII generally bars sex-based considerations in employment and sexual orientation discrimination necessarily requires consideration of an individual’s gender.

I think the EEOC has it right in this case and, given the ways in which federal anti-discrimination laws have been interpreted in recent years, courts will likely adopt its reasoning. Interestingly, one federal court agreed with the EEOC while addressing a case under a New York City law, and it noted that a “change towards federal protection has been primarily a result of [the EEOC’s] sensitivity to the problem.” In the case at bar, the court refused to overturn a $100,000 award to a lesbian UPS employee who endured years of harassment due to her sexual orientation. It explained that appeals to the Bible could not justify management’s condoning the harassment and, noting the company’s “cavalier” attitude toward the employee’s repeated complaints, the court found plenty of evidence to support the verdict in the employee’s favor under the New York City Human Rights Law (Roberts v. United Parcel Service, Inc.).


Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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