Discrimination

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Q: What are the risks to a company when making a public statement about ongoing employment litigation?

A: A federal judge in Washington, DC recently allowed a pair of married former law firm associates, suing the firm for sex discrimination, to add retaliation claims to their lawsuit for allegedly “false and malicious” statements the firm made about them in an August 2019 press release. See Savignac, et al v. Jones Day, et al, U.S. District Court for the District of Columbia, No. 19-cv-02443.

By way of background, plaintiffs Julia Sheketoff and Mark Savignac sued Jones Day over a parental leave policy they claimed illegally discriminates against men by offering biological mothers eight more weeks of leave than biological fathers. They also accused the firm of firing Savignac because he challenged the firm’s policy and underpaying Sheketoff because of her sex. After they filed the highly publicized lawsuit in August 2019, the firm circulated a press release about the lawsuit.
Continue Reading A Company’s Press Release May Be Used Against It In Employee’s Retaliation Litigation

Q: Have there been any court rulings on whether companies can limit employees from wearing Black Lives Matter and other social justice attire to work?

A: Yes. During this pandemic and the political and social unrest underlying the Black Lives Matter (BLM) movement, many employees have come to work wearing BLM masks and other attire. Some companies initially banned all BLM attire on the grounds that it could alienate prospective customers with differing opinions, lead to misunderstandings, and incite workplace violence. However, they later changed their decision in light of public backlash. Others continued to ban BLM masks and other attire by relying on companywide dress code policies that prohibit employees from wearing masks and clothing with any visible slogans or messages unrelated to the company. These workplace policies recently came under fire when a group of employees filed a class-action lawsuit against a grocery chain, alleging unlawful discrimination and retaliation for wearing BLM attire.

Specifically, the workers alleged that the employer rarely enforced its dress code policy and that it did not prohibit workers in the past from wearing clothing with messaging unrelated to the company, such as Pride pins or apparel supporting LGBTQ+ workers and even a SpongeBob SquarePants mask. According to the workers, the employer selectively enforced its policy to target and suppress BLM messaging, and, thus, discriminated against Black employees and others associating with and advocating for Black employees in violation of Title VII of the 1964 Civil Rights Act. The workers also alleged they were retaliated against for continuing to wear BLM apparel and protesting the dress code policy.
Continue Reading Federal District Court Found That Employer Did Not Violate Title VII in Prohibiting Black Lives Matter Attire

Q. I understand that the United States Supreme Court came out with a new decision extending Title VII protections. What are the details?

A.  Delivering a historic victory for the LGBTQ community, the U.S. Supreme Court issued a 6-3 landmark decision on June 15, ruling that Title VII of the Civil Rights Act of 1964 prohibits terminating an employee based on the employee’s gender identity or sexual orientation. In Bostock v. Clayton County, Georgia, 590 U.S. _____ (2020), the Court held “that employers are prohibited from firing employees on the basis of homosexuality or transgender status.” Justice Neil Gorsuch wrote the majority opinion, in which Chief Justice Roberts and the four liberal justices joined. Justice Alito wrote a 107-page dissent, in which Justice Thomas joined, and Justice Kavanaugh dissented separately.
Continue Reading Supreme Court Rules Title VII Protects Gay and Transgender Employees

Q. Are employers allowed to ask employees about their salary history in Philadelphia?

A. The U.S. Court of Appeals for the Third Circuit has ruled that a Philadelphia city ordinance that prohibits Philadelphia employers from asking applicants about their current or past pay rates is constitutional. In April 2018, a Philadelphia federal court judge held…

Q: Over the summer, I saw that President Trump tweeted that four minority Democrat congresswomen should “go back” to where they came from. What Human Resources lessons can be learned from the President’s tweet?

A: In July 2019, President Trump tweeted that certain Democrat congresswomen “who originally came from countries whose governments are a complete…

Q: I heard New York prohibits employers from discriminating based on hairstyle. What does that mean?

A: In July 2019, New York State passed legislation that amended the definition of race under the New York State Human Rights Law (“NYSHRL”) to include “traits historically associated with race, including, but not limited to, hair texture and…

Q: I am a New York employer. What are the key parts of the new amendments to the New York Human Rights law and when do they go into effect?

A.  As we detailed in an earlier post, New York state recently passed a bill that makes numerous changes to the New York Human Rights Act (“NYHRL”). Governor Cuomo signed the bill on August 12, 2019, and most of the amendments go into effect on October 11, 2019.
Continue Reading New York Human Rights Law Amendments Effective October 12, 2019

Q: I am a New York employer. What should I know about the recent amendments to the New York Human Rights Law?

A: In June 2019, New York State approved a bill that makes numerous changes to the New York Human Rights Law (“NYHRL”), governing discrimination and harassment.  Governor Cuomo has not yet signed the bill, but is expected to shortly.

As explained in more detail below, the legislation significantly increases the NYHRL’s coverage by expanding the definitions of “harassment” and “employer.” The legislation also prohibits non-disclosure clauses in any settlement agreement involving discrimination allegations. Finally, the legislation expands employers’ sexual harassment training obligations, and extends the statute of limitations for filing sexual harassment claims with the New York State Division on Human Rights to three years.
Continue Reading New York Enacts Broad Changes to New York Human Rights Law

Q: Is it lawful to require employees or applicants to style their hair in a certain manner?

A: As with most employment-related questions, the answer is it depends.  While employers are generally allowed to adopt basic grooming policies, employers should seek to adopt policies that do not have a disparate impact on minorities and other persons protected by anti-discrimination laws.
Continue Reading Hair Styles May Be Protected Under Discrimination Laws

Q.  Is there anything I should look out for in documenting my legitimate business reason for terminating an employee?

A.  The United States Appeals Court for the Seventh Circuit (covering Illinois, Indiana and Wisconsin) recently issued an opinion that serves as a warning that inconsistent explanations of an employer’s reason for an adverse employment decision could support an inference of retaliation. In Donley v. Stryker Sales Corp., No. 17-1195 (7th Cir. Oct. 15, 2018), the plaintiff filed an internal complaint with the company’s human resources department that a manager was harassing a female coworker. The human resources director investigated the complaint and the company then terminated the manager, albeit with a hefty severance package.  Shortly after the termination, however, the plaintiff also was terminated.  The company claims that it fired the plaintiff for taking improper photographs of the CEO of a vendor, who was drunk at a work event approximately six weeks prior to plaintiff’s harassment complaint.
Continue Reading Inconsistent Factual Accounts Could Support an Inference of Retaliation