The National Women’s Law Center has formed the Legal Network for Gender Equity and has recruited more than 80 attorneys from 50 states to assist women and girls who are victims of sex discrimination. The Law Center has grown concerned that sex discrimination protections have weakened under the Trump Administration. More categories of employers, including publicly traded companies, may opt out of providing no-cost birth control to women by claiming religious or moral objections. Efforts by the EEOC to collect data from large companies about what they pay their employees by job category, race, ethnicity, and gender have been halted. And Obama-era guidance on investigating campus sexual assault has been revoked and replaced with new instructions that allow universities to require higher standards of evidence when handling complaints. The goal is to have attorneys affiliated with the network in all 50 states. The National Women’s Law Center will serve as the network’s hub to provide women and girls with legal resources and names of attorneys who are willing to take on cases.
The Equal Employment Opportunity Commission has launched a new online system for filing and tracking claims of workplace discrimination, effective November 1, 2017. Generally, someone who believes he or she has been discriminated against must file an EEOC charge before they can file an employment discrimination lawsuit under Title VII of the 1964 Civil Rights Act in federal court. The EEOC’s “Public Portal” allows users to provide and update contact information, upload documents to his or her charge file, agree to mediate the charge, check on the status of his or her charge, and receive documents and messages related to the charge from the agency. The online features also work for charges that are currently in investigation or mediation, as long as they were filed after January 1, 2016. Individuals who do not have internet access may call 1.800.669.4000 to get information about how to submit an inquiry to their local EEOC office. Depending on which state you live in, you may have to file a charge of discrimination within 180 or 300 days of the discriminatory act.
Col. Christopher de Los Santos’s family recently filed a lawsuit against University of California, Davis, after his suicide in October 2015. After leaving the military, Santos began working for UC Davis, but got into trouble during a weekend retreat with co-workers. One witness stated it was a booze cruise, and Santos misbehaved. After the incident, the university launched an investigation and the following day placed Santos on leave. He killed himself hours after receiving the email. The lawsuit alleges that the university administrators violated federal and state discrimination laws by treating him differently because he was a veteran. As his family’s attorney stated: “For them to have a knee-jerk reaction because an administrator in the Air Force might somehow be violent because he’s been in the military, I mean that’s blatant discrimination.”
More and more states are legalizing marijuana use for medical conditions, and employers are struggling to keep up with the changing laws. Courts in at least six states where medical marijuana use is legal have held that employers have a right to enforce zero tolerance drug policies. But recent cases in Rhode Island and Massachusetts could set a different precedent. In Rhode Island, the Superior Court held that an employer could not refuse to hire a cardholder for medical marijuana, even if the employee would fail a mandatory drug test as a prerequisite for employment. Similarly, in Massachusetts, the Massachusetts Supreme Court held that an employee who was terminated after testing positive for marijuana as a result of a lawful prescription may assert a claim of handicap discrimination under state law. They stated further that even if an employer has a drug policy prohibiting the use of medical marijuana, the employer has a duty to engage with the employee to determine if there are other equally effective alternatives. If not, the employer must show that the marijuana use would cause the company undue hardship.
Three African-American workers have filed a lawsuit against Tesla, claiming they experienced racial discrimination and harassment while employed at the Fremont, California factory. They claim that their supervisors and other workers used racial epithets and drew racist graffiti on cardboard boxes. A Tesla representative alleges that the men never raised concerns about racial discrimination while they were employed at Tesla and stated that there are no complaints filed with the Equal Employment Opportunity Commission or the Department of Fair Employment and Housing. The spokesperson also stated that the men never filed complaints about the discrimination and harassment they claim to have experienced while they were working for the company; additionally, more than a year has passed since some of the men have been employed by Tesla.
On October 9, 2017, Attorney General Jeff Sessions released a 25-page memo that offers guidance to federal agencies and prosecutors concerning giving religious groups, organizations, businesses, and individuals leeway in enforcing discrimination laws. President Trump signed an executive order in May to expansively offer protections for people of faith and their associations and institutions from interference from the federal government in civil rights laws. One portion of the guidance directs lawyers in the Justice Department to scrutinize every proposed federal regulation. It is clear that the significance of this memo will depend largely in how it is interpreted. Although the memo does not change federal law, it does ensure that those who run afoul of laws and policies on religious grounds will be treated with respect, if not actual favor.
Federal law establishes the floor for anti-discrimination laws, but many states and cities have more protective language for employees. Federal laws protect against discrimination on the basis of age, disability, national origin, color, religion, and sex. Many states have added to this list of protected categories. California, for example, protects workers from discrimination based on gender identity, sexual orientation, and marital status, categories that federal law does not. Additionally, most federal anti-discrimination laws are not triggered unless the employer has at least 15 or 20 employees. Other states do not have any protections for certain categories, like Alabama, which does not have a statute to protect against race discrimination. Multistate employers should establish the best policy for their organization as a whole, which may mean a more-employee friendly policy than that offered in some states. Employers should set an example that makes all employees feel protected and valued.
Alexis Berger was recently awarded $40 million by an arbitrator in a gender discrimination case against her employer, Kargo, a mobile advertising firm. Kargo has sued in federal court to reduce the damages to $3 million. If the settlement is upheld, it will be among the highest sexual harassment/discrimination verdicts and settlements. Ms. Berger filed her EEOC charge of discrimination in the spring of 2016 and was fired that July. Her allegations include the fact that Kargo tolerated misbehavior by her male colleagues but disciplined Ms. Berger for similar behavior and ignored inappropriate comments about Ms. Berger’s sexuality. Kargo claims it fired Ms. Berger because of complaints about her managerial style and the fact that she made inappropriate comments herself. The arbitrator stated that overwhelming evidence showed that Kargo allowed sexual discrimination to be a motivating factor in the decision to fire Ms. Berger and that the termination was “a collaborate orchestration carried out in a malicious, insidious, and humiliating manner.”
Age discrimination occurs when an employee or applicant is treated less favorably because of his or her age. This includes non-consideration for positions, demotions, or job loss. The employee or applicant must be 40 years old to be the victim of age discrimination. In 2016, 20,847 age discrimination complaints were filed with the Equal Employment Opportunity Commission. Of those complaints, the EEOC only filed two cases in court, largely because workplace discrimination cases are often expensive and legally complicated. Additionally, A 2009 Supreme Court ruling established a precedent that puts the burden of proof on employees for age discrimination, and most discrimination cases are settled out of court. Furthermore, A 2015 study from economists at the University of California at Irvine and Tulane University found that older women face greater difficulty finding jobs than older men. Lastly, ageism can have a psychological impact on people. People 50 years or older who have a positive self-perception live 7.5 years longer than those who don’t, and those who experience age discrimination often feel worse about themselves and their age.
When Congress enacted the Pregnancy Discrimination Act of 1978, it amended Title VII of the Civil Rights Act of 1964 and made it unlawful for an employer to discriminate on the basis of pregnancy, childbirth, or related medical conditions. There is currently limited case law on whether a male can bring a claim of employment discrimination under the Pregnancy Discrimination Act based on his partner’s pregnancy. Recently, a Mississippi man committed suicide after being fired for accompanying his high-risk pregnancy wife to a pregnancy-related appointment. His estate filed a complaint against his employer, alleging that he was fired because of his sex and his wife’s pregnancy. A 2007 case held that in order for a male to properly bring an employment discrimination claim based on pregnancy, he must allege that he was discriminated against because of his sex. The estate argued that he was “treated less favorably than male employees whose wives were not pregnant.” However, the court found that he must allege that he was fired because of his partner’s pregnancy and that a female would not have been fired because of her partner’s pregnancy.