Wyatt Employment Law Report


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Fourth Circuit to Review “Mark of the Beast” Religious Discrimination Case

By Elise C. Hofer

cross on hillConsol Energy has asked the Fourth Circuit to review a nearly $600,000 unanimous federal jury verdict in favor of a former employee’s Title VII claims of religious discrimination based on the company’s failure to accommodate his religious beliefs.  U.S. Equal Employment Opportunity Commission v. Consol Energy, Inc., No. 1:13-cv-215 (N.D. W. Va. Aug. 21, 2015).  Plaintiff Beverly Butcher, who worked as a Consol mine worker for over 35 years, had requested an exemption from the mandated use of the company’s new biometric hand scanners, which were installed to track employees’ time and attendance.  Butcher, an Evangelical Christian, explained to his supervisors that he believed the scanning would create an identifier for followers of the Antichrist known as the “Mark of the Beast.”  Nevertheless, Consol required Butcher to use the scanners and refused to permit alternate means of tracking Butcher’s time, prompting him to resign from the company.

At trial and in post-trial motions, Consol Energy challenged the logic and consistency of Butcher’s religious beliefs.  In particular, Consol pointed out that Butcher’s own pastor did not agree that the hand scanners had Continue reading


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EEOC Finds That Discrimination Based on Sexual Orientation is Prohibited by Title VII

By Courtney Ross Samford

On July 16, 2015, the EEOC announced that sexual orientation is included within Title VII’s prohibition against sex discrimination in Complainant v. Foxx, 2015 WL 4397641 (EEOC July 16, 2015).  Foxx worked as an air traffic control specialist in Miami, Florida.  He claimed that he was discriminated against in violation of Title VII when he was not selected for a permanent promotion based on his sexual orientation.  Foxx alleged that one of his supervisors said, “We don’t need to hear about that gay stuff” in response to a story about his male partner, and referred to his relationship as a “distraction in the radar room” on numerous occasions.  The EEOC found that the complaint properly stated a claim of sex discrimination because “sexual orientation is inherently a ‘sex-based consideration.’”

In the decision, the EEOC further opined that “[s]exual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex.”  As such, “[a]n employee could show that the sexual orientation discrimination he or she experienced was sex discrimination because it involved treatment that would not have occurred but for the individual’s sex; because it was based on the sex of the person(s) the individual associates with; and/or because it was premised on the fundamental sex stereotype, norm, or expectation that individuals should be attracted only to those of the opposite sex.”  This expands the EEOC’s previous interpretation that Title VII only encompassed discrimination based on an employee’s failure to conform to gender stereotypes.

While the EEOC’s decision is momentous for the LGBT community, it is not binding on state or federal courts.  Even if courts choose not to adopt the EEOC’s expansive definition of sex discrimination, employers should re-evaluate their current policies to avoid compliance issues with the EEOC.


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Employers Must Accommodate Religious Practices Even Without Actual Knowledge: Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., 575 U.S. ___ (2015)

By Chelsea K. Painter

Supreme CourtClothing retailer Abercrombie & Fitch (“Abercrombie”) refused to hire Samantha Elauf (“Elauf”), a practicing Muslim, because the headscarf required by her religion violated Abercrombie’s “Look Policy” prohibiting “caps” of any kind. Although Elauf’s interviewer informed the store manager that she believed “Elauf wore her headscarf because of her faith,” the store manager directed her not to hire Elauf. Elauf did not mention her faith and/or religion to her interviewer or the store manager prior to their decision.  After Abercrombie refused to hire Elauf, the EEOC sued Abercrombie on Elauf’s behalf, claiming religious discrimination under Title VII. The District Court granted the EEOC summary judgment on the issue of Continue reading


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Courts May Review EEOC’s Pre-Suit Conciliation Efforts Under Title VII

By Courtney Ross Samford

Gavel and scalesOn Wednesday, the U.S. Supreme Court released an important decision concerning the EEOC’s obligation to engage in pre-suit conciliation efforts under Title VII. The decision of Mach Mining v. EEOC, No. 13-1019, 2015 WL 1913911 (Apr. 29, 2015), involves a woman who filed an EEOC charge against Mach Mining, LLC, claiming that she was denied employment as a coal miner based on her gender. Following an investigation, the EEOC found reasonable cause to believe that Mach Mining had discriminated against the woman and other similarly situated women in their hiring process. The EEOC sent a letter to both parties informing them of its decision and advising them that it would “contact [them] to begin the conciliation process.” Id. at *3. Approximately one year later, the EEOC sent a second letter to Mach Mining announcing that “such conciliation efforts…have occurred and have been unsuccessful.” Id. The EEOC then sued Mach Mining in federal court.

In its answer, Mach Mining raised the EEOC’s failure to “conciliat[e] in good faith” as an affirmative defense. Id. The EEOC moved for summary judgment on this ground, claiming that its conciliation efforts are not subject to judicial review. Mach Mining argued that Continue reading


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OSC Finds That Army Harassed Transgender Worker

By Leila G. O’Carra

On October 23, 2014, the U.S. Office of Special Counsel announced its landmark determination that the Department of the Army engaged in gender identity discrimination against a civilian Army quality assurance specialist after she revealed her intention to transition from male to female. The Army agreed to provide remedial training on prohibited personnel practices, particularly on prohibitions against gender identity discrimination. The Army also agreed to provide workplace diversity and sensitivity training.

This finding marks the latest in a string of federal governmental actions aimed at prohibiting discrimination in the workplace on the basis of sexual orientation and gender identity.

  • Last month, the Equal Employment Opportunity Commission filed two lawsuits on behalf of plaintiffs challenging transgender discrimination.   In both cases, the plaintiffs claim that their employers fired them because they were transitioning from male to female. The EEOC has previously interpreted Title VII to prohibit discrimination on the basis of transgender status, but this new litigation will be the first time that the EEOC tests its interpretation in court.
  • In July 2014, President Obama signed an Executive Order prohibiting federal government contractors and subcontractors from discriminating in employment decisions on the basis of sexual orientation or gender identity.
  • In April 2014, in official guidance on Title IX, the Office of Civil Rights stated that “Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity…”

Employers must understand that while sexual orientation and gender identity are not listed as protected classes in either Title VII or Title IX, the federal agencies charged with enforcing those laws interpret them to prohibit discrimination on the basis of sexual orientation and gender identity. However, employers that are “religious corporations,” and educational institutions that are “controlled by religious organizations,” may be entitled to exemptions if application of the law would be inconsistent with the religious tenets of those organizations.


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EEOC’s New Guidance on Use of Criminal Records in Employment Decisions

By Rachel K. Mulloy

On April 25, 2012, the United States Equal Employment Opportunity Commission (EEOC) issued Guidance regarding the use of criminal records in employment decisions under Title VII of the Civil Rights Act of 1964.  The Guidance discusses whether an employer’s use of criminal history violates Title VII, focusing specifically on disparate impact claims based on neutral screening policies and practices that have the effect of disproportionately screening out a group protected under Title VII.  While having a criminal history is not a protected category under Title VII, given the increase over the past 20 years of people in the working-age population who have criminal records and given national data finding criminal record exclusions have a disparate impact based on race and national origin, the EEOC is concerned that using criminal records to evaluate employees could create barriers to employment that violate Title VII. 

Employers can avoid liability for disparate impact claims under Title VII by showing the policy or practice is “job related for the position in question and consistent with business necessity.” To establish that an exclusion based on criminal conduct that has a disparate impact is job related and consistent with business necessity, “the employer needs to show that the policy operates to effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position.”  The EEOC provides two circumstances in which it believes employers can “consistently meet the ‘job related and consistent with business necessity’ defense.” 

First, the employer can validate the exclusion based on criminal conduct “in light of the Uniform Guidelines on Employee Selection Procedures (if there is data or analysis about criminal conduct as related to subsequent work performance or behaviors).”

Second, the employer can use a “targeted screen.”  There are two steps to the “targeted screen” process: (1) the employer creates a targeted screen “considering at least the nature of the crime, the time elapsed, and the nature of the job,” and (2) the employer provides an opportunity for an “individualized assessment” of the employee.  An “individualized assessment” consists of notice to the employee that she has been screened out because of a criminal conviction, an opportunity for the employee to demonstrate the exclusion does not apply based on her particular circumstances, and consideration by the employer as to whether the information provided warrants an exception to the exclusion. The employee’s showing may include information indicating she was incorrectly identified in the criminal record, the record is inaccurate, facts surrounding the offense, the number of offenses for which she was convicted, older age at the time of conviction or release from incarceration, evidence that she performed the same type of work post-conviction without incident, the length and consistency of employment before and after the offense, her efforts at rehabilitation, any references, and whether she is bonded under a state or federal bonding program.  While an individualized assessment is not always required it may help employers avoid liability by allowing them to consider more complete information on individual employees.

The Guidance notes that even if an employer successfully demonstrates its policy or practice is job related for the position in question and consistent with business necessity, a Title VII plaintiff could still prevail by demonstrating there is a less discriminatory “alternative employment practice” that serves the employer’s legitimate goals as effectively as the challenged practice but which the employer refused to adopt.

Additionally, the Guidance acknowledges that individuals with certain kinds of convictions may be barred by federal law from certain types of employment; compliance with such laws is a defense to discrimination. 

The Guidance concludes by offering the following best practice tips for employers who consider criminal records when making employment decisions:

  • Eliminate policies or practices that absolutely exclude people from employment based on any criminal record;
  • Train managers, hiring officials, and decisionmakers on Title VII and its prohibition on employment discrimination;
  • Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct;
  • Limit inquiries about criminal records to those for which exclusion would be job related for the position in question and consistent with business necessity; and
  • Keep information about employees’ criminal records confidential and only use it for the purpose for which it was intended.

 


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Are Transgender Individuals Protected By Title VII?

By Michelle D. Wyrick

The short answer is yes, for federal employees, and possibly, for others.  In Macy v. Eric Holder, Agency No. ATF-2011-00751, 2012 WL 1435995, the EEOC decided that a transgender applicant’s complaint of discrimination based on gender identity was cognizable under Title VII of the Civil Rights Act of 1964.  In Macy, a transgender applicant for a ballistics forensic technician position with the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) claimed that she was not hired because of her transgender status.  She alleged that she was initially offered the position pending completion of a background check but that after she informed the ATF of her transgender status, her offer of employment was rescinded.  Macy then filed a formal complaint with the ATF, alleging sex discrimination based on her gender identity and sex stereotyping.  The ATF refused to process her claim based on her gender identity under the EEOC regulations.  Macy appealed to the EEOC.  The EEOC found that Macy’s claim should have been processed because “claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII’s sex discrimination prohibition ….” 

The EEOC’s decision is noteworthy for a few reasons.  First, it is the first ruling from the EEOC that specifically extends Title VII protection to claims based on transgender status.  Second, although the decision applies only to federal employers, the EEOC’s interpretation may be used to extend the reach of Title VII to non-federal employers as well.  Although some courts have previously concluded that “a label, such as ‘transsexual’ is not fatal to a sex discrimination claim where the victim has suffered discrimination because of his or her gender non-conformity,” Smith v. City of Salem, 378 F.3d 566, 574-75 (6th Cir. 2004), other courts have disagreed, finding that “discrimination against a transsexual based on the person’s status as a transsexual is not discrimination because of sex under Title VII.”  Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1221 (10th Cir. 2007).  The EEOC’s decision in Macy may be used to influence even those courts that have interpreted Title VII to protect transgender individuals under a theory of sex stereotyping to construe Title VII more broadly.  As the EEOC opined, “evidence of gender stereotyping is simply one means of proving sex discrimination.”  According to the EEOC’s decision in Macy, “intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination ‘based on … sex,’ and such discrimination therefore violates Title VII.”