Category Archives: Discrimination/Equal Rights

U.S. SUPREME COURT RULES THAT TITLE VII PROTECTS LGBTQ WORKERS FROM DISCRIMINATION

June 15, 2020

By:  Samantha J. Wood

Today, the U.S. Supreme ruled that Title VII of the Civil Rights Act bars discrimination on the basis of gender identity and sexual orientation.

Title VII makes it “unlawful…for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual…because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. §2000e-2(a)(1).  An employer, therefore, violates Title VII when it intentionally terminates an individual based, in part, on his or her sex.

In Bostock v. Clayton County, No. 17-1618 (June 15, 2020), which involved three consolidated cases, three employees sued their former employers, alleging sex discrimination under Title VII, after they were terminated on the basis of their homosexual or transgender identity.  The employers did not dispute that they fired the employees as a result of their homosexual or transgender identity.  Rather, they argued that Title VII does not extend protection to the employees on such basis.

The Supreme Court, however, disagreed, holding that an employer who fires (or otherwise discriminates against) an individual for being homosexual or transgender necessarily and intentionally discriminates against that individual, in part, because of sex.  “Sex plays a necessary and undisguisable role in the decision,” which is exactly what Title VII forbids. Accordingly, an employer who intentionally treats individuals differently because of their homosexual or transgender identity, penalizes those individuals on the basis of their sex in violation of Title VII.

While the Seventh Circuit (covering Wisconsin, Illinois, and Indiana) already extended Title VII protection on this basis (see here), this case serves as a reminder to employers that their policies and practices must provide protections to LGBTQ employees.

If you have questions about this material, please contact Samantha J. Wood by email at swood@lindner-marsack.com, or any other attorney you have been working with here at Lindner & Marsack, S.C.

SEVENTH CIRCUIT ISSUES ADA REASSIGNMENT GUIDANCE

By: Kristofor L. Hanson & Christopher J. Saugstad

November 25, 2019

The Seventh Circuit Court of Appeals recently clarified its position concerning reassignment as an accommodation under the Americans with Disabilities Act (the “ADA”). Under the ADA, employers have an affirmative duty to reasonably accommodate an employee’s disability. While engaging in the interactive process to find a reasonable accommodation, in situations where an employee is unable to perform the essential functions of his or her job even with reasonable accommodations, employers are required to evaluate reassignment to a vacant position as an accommodation. Previously, in EEOC v. United Airlines, Inc., 693 F.3d 760, 764 (7th Cir. 2012), the Seventh Circuit explained that the ADA requires employers to appoint disabled employees to vacant positions for which the employee is minimally qualified, unless the reassignment would pose an undue hardship to the employer or there is a bona fide seniority system in place. Pursuant to this decision, employers cannot force the disabled employee to go through a competitive process to be placed into a vacant position as a reasonable accommodation.

On November 15, 2019, the Seventh Circuit revisited the issue of reassignment under the ADA in Ford v. Marion Cty. Sheriff’s Office, No. 18-3217, 2019 U.S. App. LEXIS 34072, (7th Cir. Nov. 15, 2019). Ford worked as a deputy at the county sheriff’s office until her hand was seriously injured in a car accident while on duty. Ford was reassigned to light duty for about a year until she accepted a position as a jail visitation clerk; Ford was given the option to accept the visitation position, resign, or be fired. After Ford’s reassignment, she alleged she suffered disability-based harassment by co-workers, refusals to accommodate her scheduling needs, and several discriminatory promotion denials. Ford brought an action against Marion County for violations under the ADA.

The Seventh Circuit found the district court properly granted summary judgment on Ford’s claim regarding reassignment to the visitation clerk position and explained a “demotion can be a reasonable accommodation when the employer cannot accommodate the disabled employee in her current or prior jobs or an equivalent position.” The Court pointed out EEOC guidance regarding reassignment and demotion states: “An employer may reassign an individual to a lower graded position if … there are no vacant equivalent positions for which the individual is qualified with or without reasonable accommodation.”

The Court noted that if there had been a vacant position that more closely matched Ford’s previous position, under the ADA, Marion County would have been obligated to reassign her to that position.

Significantly, the Seventh Circuit suggested that Marion County, as the employer, had an obligation to “to canvass available positions and, if a vacant job existed that Ford was qualified to perform with or without reasonable accommodations, to offer it to her.” Employers should review their current process regarding reassignment as a potential reasonable accommodation. Once reassignment becomes a potential accommodation, employers should actively canvas their current vacancies in relation to the disabled employee’s qualifications. If there is a match, the employee should be offered the job. Merely inviting employees, without any employer assistance, to apply for any vacant positions for which they think they may be qualified is insufficient.

Lindner & Marsack, S.C. represents employers in all areas of labor and employment law. If you have any questions about the ADA, reasonable accommodation and the possibility of reassignment, or any other labor or employment issue involving your business, please contact us at any time.

Title VII Now Covers Discrimination Based on Sexual Orientation

By:  Kristofor L. Hanson

The Seventh Circuit Court of Appeals has determined that Title VII of the Civil Rights Act bars discrimination on the basis of sexual orientation.  On April 4, 2017, the Chicago-based court, which presides over federal matters in the states of Wisconsin, Illinois and Indiana, became the first federal court of appeals to determine that the protections of Title VII extend to sexual orientation.

The case, Hively v. Ivy Tech Community College of Indiana, No. 15-1720 (7th Cir. Apr. 4, 2017), was brought by Kimberly Hively, a lesbian and a part-time adjunct instructor at Ivy Tech, a public institution in Indiana with thirty campuses statewide. She alleged that the college refused to hire her for six full-time positions she sought over five years and then refused to renew her part-time contract because of her sexual orientation.

In its decision, the court held that consideration of sexual orientation centers on the issue of gender and sexual stereotypes, meaning that an employer who takes an adverse action against a homosexual employee is taking an action based upon that employee’s gender or sex, which are covered by Title VII, and the employee’s failure to conform to a particular gender stereotype.  Hively argued, and the court agreed, that had Hively been a man married to, dating, or cohabitating with a woman, Ivy Tech would not have taken the actions it did.  The court stated that while this decision may appear to write into the law the term sexual orientation, it actually does no such thing as the law already protects an individual from discrimination on the basis of sex, which cannot be separated from sexual orientation.

This decision, issued following oral argument before the full panel of Seventh Circuit judges, overruled the Circuit’s previous decision in the same case and the lower court’s decision which granted Ivy Tech’s motion to dismiss, both of which held that Title VII did not cover sexual orientation.  This decision means that Hively now has the opportunity to litigate her claims in the district court.  Whether she ultimately will prevail is to be determined, but now, in the Seventh Circuit at least, it is clear that she has a viable claim to litigate under federal law.

Twenty-two states have laws that bar discrimination based on sexual orientation, including Wisconsin, Illinois and Minnesota.  Employers in these states, therefore, have already been prohibited from discriminating against employees on the basis of sexual orientation.  The Seventh Circuit’s extension of federal protection to sexual orientation creates additional means for employees claiming such discrimination to seek remedies before the Equal Employment Opportunity Commission and in federal court.  In federal court, compensatory (i.e. emotional distress) and punitive damages may be available to plaintiffs where before state agencies such damages are generally unavailable.  Therefore, if this decision changes anything for those in states already prohibiting discrimination, it potentially increases the risk for employers who run afoul of the law.

Even though many employers have known that sexual orientation is a protected class in their states, this decision serves as a reminder that employers should make sure their handbooks, policies, and employee and supervisor training include reference to this protected class.

GOVERNOR WALKER PROPOSES TO ELIMINATE THE LABOR AND INDUSTRY REVIEW COMMISSION

By:  Jonathan T. Swain

February 13, 2017

In his recently published proposed biennial budget for fiscal years 2018 and 2019, Governor Walker has proposed to eliminate the Wisconsin Labor and Industry Review Commission (LIRC).  LIRC is an independent three member commission appointed by the Governor that currently handles all appeals of Administrative Law Judge (ALJ) decisions for unemployment compensation cases, worker compensation claims, as well as state fair labor standards cases and fair employment cases in the Equal Rights Division and public accommodation cases.  LIRC would be phased out over the next three fiscal years.

Presently, LIRC has the authority to affirm, overturn and remand ALJ decision in these areas.  LIRC decisions are appealable to the State’s circuit courts.

Under Governor Walker’s proposal, Worker Compensation ALJ decisions will be reviewable by the State Department of Administration, while jobless claims and Equal Right Division decisions will be Agency administrators.  In his budget statement, Governor Walker stated that the proposed elimination of LIRC will eliminate “an unnecessary layer of government” and will make this second layer of review decisions occur much more quickly.

Of course, this is a proposed budget and, as such, is subject to negotiation with the legislature and subsequent amendment.  Further, stakeholders in the business, labor and legal community have yet to weigh-in on the Governor’s proposal.  As this issue advances, we will keep you up to date and informed.

THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION CHANGES COURSE ON RELEASING EMPLOYER POSITION STATEMENTS TO CHARGING PARTIES

By: Daniel Finerty & Oyvind Wistrom

Employers that have endured the Equal Employment Opportunity Commission’s charge process concerning allegations of discrimination, harassment or retaliation know that an effective, persuasive position statement responding to a charge is critical to securing a successful outcome. For years, employers could be assured that the EEOC would not share its position statement or attachments with a charging party. In doing so, this procedure complied with Section 709(e) of Title VII, which provides:

It shall be unlawful for any officer or employee of the Commission to make public in any manner whatever any information obtained by the Commission pursuant to its authority under this section prior to the institution of any proceeding under this subchapter involving such information. Any officer or employee of the Commission who shall make public in any manner whatever any information in violation of this subsection shall be guilty of a misdemeanor and upon conviction thereof, shall be fined not more than $1,000, or imprisoned not more than one year.

Notwithstanding this statute, the Commission announced a reversal of course, as of January 1, 2016, and advised that it intends to release employer position statements:

EEOC has implemented nationwide procedures that provide for the release of Respondent position statements and non-confidential attachments to a Charging Party or her representative upon request during the investigation of her charge of discrimination. … These procedures apply to all EEOC requests for position statements made to Respondents on or after January 1, 2016. … The new procedures provide for a consistent approach to be followed in all of EEOC’s offices, which enhances service to the public. The procedures will also provide EEOC with better information from the parties to strengthen our investigations.

In contrast to this new practice, the Commission will not share the charging party’s position statement with the employer. While the Commission has recognized that employer EEO-1 reports are confidential under Section 709(e) (“[a]ll reports and information from individual reports will be kept confidential, as required by Section 709(e) of Title VII. Only data aggregating information by industry or area, in such a way as not to reveal any particular employers statistics, will be made public.”), it has not explained this new interpretation or how Section 709(e) permits its one-sided disclosure of employer position statements.

The protections for information and documents deemed “confidential” by an employer is limited. The Commission’s clear delineation of the information it will consider confidential is limited to sensitive medical information, social security numbers, confidential commercial or financial information, trade secrets information; non-relevant personally identifiable information of witnesses, comparators or third parties (for example, social security numbers, dates of birth in non-age cases, home addresses, personal phone numbers, personal email addresses, etc.), and any reference to charges filed against the employer by other charging parties. “Sensitive medical information” excludes the charging party’s medical information relating to the investigation. It is critical for employers to consult with labor and employment counsel to correctly categorize confidential information and justify such designation(s) to ensure confidentiality can be secured. “[T]he agency will not accept blanket or unsupported assertions of confidentiality.”

Further, upon receipt of information deemed confidential by an employer, the Commission has indicated that it will not withhold; rather, “EEOC staff may redact confidential information as necessary prior to releasing the information to a Charging Party or her representative.”

Employers need to be mindful of the Commission’s new procedure when responding to EEOC discrimination charges. Confidential information should be withheld (when permissible) or should be designated as “confidential.” Additionally, employers should keep in mind, when drafting position statements, that a charging party or his or her attorney may receive a copy of the position statement and any attachments.

If you have questions about this new practice by the EEOC, please contact Daniel Finerty, Oyvind Wistrom, or your Lindner & Marsack contact attorney at 414-273-3910.

Lindner & Marsack Successfully Represents Local School District in Federal Court

As labor and employment attorneys, we often sound like broken records in counselling our clients on the importance of documenting the performance deficiencies of poor performing employees. It cannot be overstated how compelling strong and contemporaneous documentation can be to demonstrate the actual reason an employer disciplines, demotes or terminates an employee who is not performing to the employer’s legitimate expectations. A recent lawsuit filed by a former African American principal at the Oak Creek-Franklin Joint School District provides another vivid illustration.

The plaintiff was a previous principal at one of the elementary schools within the school district. Following her removal from her position, she filed a lawsuit in U.S. Court for the Eastern District of Wisconsin claiming that her removal from the district was motivated by her race, as well as in retaliation for her opposing discrimination in the workplace and raising concerns that she claimed were protected by the free speech guarantees of the First Amendment. While the federal district judge dismissed her race discrimination claim prior to trial, her claims of unlawful retaliation under both Title VII and the First Amendment were tried to a jury earlier this week.

At trial, Oyvind Wistrom represented the school district. Using the district’s detailed and contemporaneous documentation of the performance concerns, we were able to successfully show the jury that her complaints of discrimination and protected speech were not the reasons for the principal’s removal. We showed that her removal would have occurred regardless of her complaints and protected speech. After more than two days of testimony, it took the jury less than one hour to determine that the school district was justified in taking the steps it took to remove the principal. The successful defense of this case could not have happened without the testimony of several key district employees and the presence of clear and contemporaneous performance documentation by the school district.

SUPREME COURT CLARIFIES RELIGIOUS ACCOMMODATION OBLIGATION

On June 1, the United States Supreme Court issued its decision in EEOC v. Abercrombie & Fitch Stores.  The issue in the case was the scope of an employer’s obligation to accommodate the real or perceived religious beliefs and practices of employees and applicants.

Samantha Elauf was a practicing Muslim who wore a headscarf to her interview with Abercrombie.  During the interview there was no discussion of her headscarf or her religious beliefs.  The interviewer assumed Ms. Elauf wore the headscarf for religious reasons.  Abercrombie determined the headscarf would violate its dress code and rejected Ms. Elauf’s application for that reason.

The Supreme Court ruled that Abercrombie’s decision was religious discrimination prohibited by Title VII.  Religious discrimination occurs if the real or perceived need for a religious accommodation is a motivating factor in an employer’s decision.  It does not need to be the sole reason.  It is not necessary for an employer to have actual knowledge of the religious beliefs or practices of the employee or applicant.  An employer’s perception that the relevant behavior is religious will be enough.  The Supreme Court also stated that employers must accommodate the religious beliefs or practices of applicants and employees unless the accommodation would create an undue hardship.

Following this decision, employers may want to treat real or perceived religious practices and beliefs the same way they treat real or perceived disabilities.  For example, employers may want to present applicants with all relevant job requirements and expectations, including such expectations as adhering to a dress code policy or working on Saturdays and Sundays.  Employers can ask applicants if there is any reason he/she cannot perform these job duties.  Employers can also ask whether an applicant believes he/she will need an accommodation.

When an applicant or employee has a religious belief or practice which is inconsistent with his or her job duties, employers must explore possible accommodations.  If no accommodation is possible, employers should consider how they can prove the necessary accommodation would create an undue hardship.

If you have any questions about how this decision may impact your organization’s hiring or accommodation practices, please contact John Murray or any other Lindner & Marsack attorney.

 

Registration is Still Open!

Registration and a continental breakfast will be served beginning at 7:30 a.m.  Click here to register.

April 28, 2015

8:00 a.m. – 12:00 p.m.

Sheraton Milwaukee Brookfield Hotel

375 South Moorland Road, Brookfield, Wisconsin

This FREE half-day event will address current topics in labor, employment, benefits and worker’s compensation law and provide employers across industries with practical and creative solutions for addressing their toughest workplace legal challenges.

SESSION TOPICS INCLUDE:

  • Annual Labor & Employment Update (Plenary)
  • Wellness Plans – Ensure ADA Compliance & Avoid EEOC Litigation
  • Steps To Avoid The Retaliation Claim Trap
  • Worker’s Compensation Update
  • The National Labor Relations Board And Its Impact On Non-Union Employers

With Same-Sex Marriage Permissible In Many States, Plan Sponsors Should Clarify the Rights Of Affected Children

By: Alan M. Levy and John E. Murray

Two years ago, in United States v. Windsor, the U.S. Supreme Court held that the Defense of Marriage Act (“DOMA”) is unconstitutional in its requirement that “marriage” be defined as restricted to heterosexual couples.  After that, regulations were issued which treated same-sex married couples as entitled to the same federal benefits and rights as opposite-sex couples, such as joint tax returns, classification of dependents for health and retirement benefits governed by federal law, and FMLA rights.  Now, either by legislation or judicial determination, 37 states and the District of Columbia permit the same treatment as the federal rule.

Recently, several ramifications of these rules have become apparent.  For example, if a health plan covers dependents of employees, the child of an employee’s same-sex marriage is a dependent.  Similarly, an employee’s same-sex spouse is entitled to a survivor pension, which includes both payment upon the employee’s death and the requirement of the spouse’s written agreement if the employee declines joint and survivor benefits to maximize the retirement benefit during his/her own lifetime.

Some plans may be able to provide these spousal and dependent benefits under their present language.  Others may require amendments to plan documents and summary plan descriptions.  While some issues about same-sex marriage are scheduled for Supreme Court consideration this term, that case will not affect the federal rules which limit the application of DOMA to ERISA plans.

Plan administrators and fiduciaries are encouraged to review their programs and make all necessary modifications to comply with these rules.  If there are any questions about the rules, existing benefit documents, or practices, please contact Alan Levy or John Murray here at Lindner & Marsack, S.C.  We will be happy to assist you in this activity.

Supreme Court Alters Pregnancy Accommodation Requirements for Employers

By Kristofor L. Hanson

The U.S. Supreme Court on March 25, 2015, issued a decision that alters the landscape for employers under the Pregnancy Discrimination Act (“PDA”).  In the decision, the Court held that employers are now required to assess their ability to accommodate a pregnant employee’s restrictions in a manner consistent with efforts to accommodate other employees under similar restrictions.

The case, Young v. UPS, Inc., No. 12-1226 (March 25, 2015), involved a pregnant UPS employee, Peggy Young, whose pregnancy restricted her lifting to 20 pounds, then again to 10 pounds, as her pregnancy progressed.  Her job required her to lift items as heavy as 70 pounds and to assist in moving packages weighing up to 150 pounds.  UPS had a policy that called for light duty assignments for employees injured on the job, employees with suffering from conditions that qualified as disabilities under the Americans with Disabilities Act, and for those employees who had lost their Department of Transportation license.  Young sought an accommodation similar to those the company had provided for employees with similar restrictions.  UPS said that she was not entitled to an accommodation because pregnancy did not fall within one of the three categories for which it provided accommodations.

The District Court dismissed Young’s case, determining that UPS’s decision complied with the PDA, because Young could not demonstrate that she was “similarly situated” to employees in the three categories for whom UPS provided accommodations: 1) she was not injured on the job; 2) she was not legally restricted from working like those who lost or had suspended their DOT certifications; and 3) she was not disabled under the law.  The 4th Circuit Court of Appeals upheld the District Court’s decision and stated that Young more closely resembled “an employee who injury his back while picking up his infant child or . . . an employee whose lifting limitation arose from her off-the-job work as a volunteer firefighter,” neither of whom would qualify for an accommodation under UPS’s policy.

Young presented facts that showed that UPS was able to accommodate other employees who had lifting restrictions similar to hers.  She also presented evidence that other employees had indicated they were willing to assist her with lifting and moving packages.  In addition, a shop steward testified that UPS had no issues with accommodating employees except when a pregnancy situation arose.

The PDA provides, in relevant part, that employers must treat “women affected by pregnancy . . . the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.”  The Supreme Court’s analysis determined that this language is intended to provide pregnant women with accommodations provided to other employees who are similarly limited in their work.  Because Young provided evidence that other employees with similar restrictions were regularly accommodated by UPS, the Supreme Court overturned the lower courts and remanded the case.  The District Court will now analyze whether Young presented sufficient evidence to move her case beyond summary judgment under the new standard articulated by the Supreme Court.

The decision places an onus on employers to treat a pregnant employee as they treat other employees who have restrictions similar to the pregnant employee.  Previously, employers were not required to do that.  Rather, employers could limit accommodations as UPS did.  Employers must now analyze pregnant employees’ restrictions on a case-by-case basis to determine whether they are offering accommodations to other employees with like restrictions.  If they are, employers should do the same for pregnant employees.  As the Supreme Court asked, “[W]hen the employer accommodated so many, could it not accommodate pregnant women as well?”  According to the Supreme Court, the answer to that question could very well be, “Yes.”

If you have questions about this material, please contact Kristofor Hanson by email at khanson@lindner-marsack.com or by phone at (414) 273-3910, or any other attorney you have been working with here at Lindner & Marsack, S.C.