Trending Issues in Harassment and Discrimination Law Laura

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Trending Issues in Harassment and Discrimination Law Laura H. Harshbarger

Trending Issues in Harassment and Discrimination Law Laura H. Harshbarger

EEOC Charge Statistics • EEOC received 90, 000 charges in FY 2015 • One

EEOC Charge Statistics • EEOC received 90, 000 charges in FY 2015 • One third of those charges included an allegation of harassment • EEOC’s initiated settlements alone resulted in employers paying $164. 5 million to complainants in FY 2015

EEOC Task Force on Harassment in the Workplace (June 2016) • • The Statistics

EEOC Task Force on Harassment in the Workplace (June 2016) • • The Statistics for Private Employers: 45% of EEOC Charges allege sex harassment 34% of EEOC Charges allege race harassment 19% of EEOC Charges allege disability harassment • 15% of EEOC Charges allege age harassment • 13% of EEOC Charges allege national origin harassment • 5% of EEOC Charges allege religious harassment

Sexual harassment as between men and women The number of men filing sexual harassment

Sexual harassment as between men and women The number of men filing sexual harassment claims has increased o 1997: 11. 6% filed by men o 2015: 17. 6% filed by men

EEOC Task Force on Harassment in the Workplace (June 2016) Prevalence of Harassment o

EEOC Task Force on Harassment in the Workplace (June 2016) Prevalence of Harassment o 25% to 85% of women report having experienced sexual harassment in the workplace o 7% to 41% of openly LGB individuals report having experienced harassment in the workplace o 45% of transgender individuals reported being repeatedly and intentionally called by the wrong pronoun o 40% to 70% of individuals report race/ethic harassment Intersectional harassment

EEOC Task Force on Harassment in the Workplace (June 2016) Employee Responses to Harassment

EEOC Task Force on Harassment in the Workplace (June 2016) Employee Responses to Harassment o Avoid the harasser 33% to 74% o Downplay the incident 54% to 73% o Ignore or endure it 44% to 70% o Report to employer 6% to 13% • Why the underreporting? o Fear of retaliation

EEOC Task Force on Harassment in the Workplace (June 2016) • Risk Factors for

EEOC Task Force on Harassment in the Workplace (June 2016) • Risk Factors for Harassment o Highly Homogenous Workforces o Highly Culturally Diverse Workforces o “Coarsened Social Discourse” in Larger Society o Young Workforce o Workforces with a few “High Value” Employees o Workplaces with Significant Power Disparities o Workplaces where Customer Satisfaction is Key o Monotonous Work o Isolated or Decentralized Workforces

EEOC Task Force on Harassment in the Workplace (June 2016) • EEOC’s Policy Recommendations

EEOC Task Force on Harassment in the Workplace (June 2016) • EEOC’s Policy Recommendations o A clear expectation of prohibited conduct, including examples; o Clear assurance of non-retaliation for complainants and witnesses; o A clearly described complaint process that provides multiples avenues of complaint; o Assurance of confidentiality to the extent possible; o A prompt, thorough and impartial investigation; o Assurance that the immediate and proportionate response will be taken for harassment or lesser offensive behavior

EEOC Task Force on Harassment in the Workplace (June 2016) • EEOC’s Training Recommendations

EEOC Task Force on Harassment in the Workplace (June 2016) • EEOC’s Training Recommendations o Training should be customized to the workplace; o Training should be done by live, interactive trainers; o Training should focus on what is and is not harassment; o Training for middle managers and frontline supervisors is critical; o Training should be visibly supported at the highest levels; and o Employers should consider Workplace Civility training and Bystander Intervention Training

Practical Takeaways • The EEOC’s definition of “harassment” is a low bar and getting

Practical Takeaways • The EEOC’s definition of “harassment” is a low bar and getting lower • Any rude or abusive behavior is fertile ground for a harassment complaint, valid or not • Review your policy • Critically consider your training initiatives • Do your policy and response protocol have credibility in your workforce? If not, what do you need to do to change that?

Sexual Harassment and Sex Discrimination • NYS Human Rights Law now extends to ALL

Sexual Harassment and Sex Discrimination • NYS Human Rights Law now extends to ALL employers, regardless of size, with respect to sexual harassment • NYS Human Rights Law now allows complainants who prove sex discrimination to recover their attorneys’ fees

Sex Discrimination – Pay Equity • New York State Pay Equity Act o Prohibits

Sex Discrimination – Pay Equity • New York State Pay Equity Act o Prohibits differential in pay between employees of the opposite sex for work requiring equal “skill, effort and responsibility” and performed under “the same working conditions”

Sex Discrimination – Pay Equity • Differential may be based on: o a seniority

Sex Discrimination – Pay Equity • Differential may be based on: o a seniority system; o a merit system; o a system that measure quality or quantity of production; or o a bona fide factor other than sex, such as education, training or experience

Sex Discrimination – Pay Equity • A “bona fide factor other than sex” must

Sex Discrimination – Pay Equity • A “bona fide factor other than sex” must be legitimate and consistent with business necessity • The burden is on the employer to prove the bona fide factor other than sex • A factor other than sex is not bona fide if: o there is a disparate impact; and o the employer could have achieved the same business purpose without the gender disparate impact

Right to Discuss Wages • NYS Pay Equity Act gives employees the right to

Right to Discuss Wages • NYS Pay Equity Act gives employees the right to inquire about, discuss and disclose their compensation o The law allows employers to establish reasonable rules concerning the time, place and manner of such inquiry, disclosure and discussion BUT a written rule cannot be targeted at these kinds of inquiries, disclosures and discussions • National Labor Relations Act (“NLRA”) similarly protects employees’ right to discuss their wages

Sex Discrimination – Pay Equity • Penalty for an NYS Equal Pay Act violation:

Sex Discrimination – Pay Equity • Penalty for an NYS Equal Pay Act violation: 300 % of wages owed

EEOC’s Proposed EEO-1 Rule • EEOC has proposed a rule that would require employers

EEOC’s Proposed EEO-1 Rule • EEOC has proposed a rule that would require employers to include wage data in EEO-1 reports o Pay data would require disclosure of W-2 earnings over past 12 months o Pay data would be collected by sex, race, ethnicity by job category o If adopted, effective September 2017

Pregnancy Discrimination

Pregnancy Discrimination

Young v. United Parcel Service, Inc. • U. S. Supreme Court case o Decided

Young v. United Parcel Service, Inc. • U. S. Supreme Court case o Decided March 2015 o Peggy Young was a part-time driver − Placed on lifting restriction early in pregnancy o UPS required drivers to lift up to 70 lbs. o UPS did not offer an accommodation and did not allow her to work during her pregnancy

 • UPS accommodated other drivers BUT o Those drivers had on-the-job injuries o

• UPS accommodated other drivers BUT o Those drivers had on-the-job injuries o Those drivers had permanent ADA-covered disabilities o Those drivers had lost their DOT certifications • Fourth Circuit Court of Appeals ruled in favor of UPS, finding that UPS’ categories were neutral and non-discriminatory on the basis of pregnancy

 • Young’s position: if any employee with a similar condition (lifting restriction) had

• Young’s position: if any employee with a similar condition (lifting restriction) had been accommodated, then a pregnant employee must also be accommodated • UPS’ position: an employer need not accommodate a pregnant employee if she does not fall within neutral categories (i. e. , ADA disability, workers’ compensation injury, loss of DOT certification)

U. S. Supreme Court’s Decision o An employee alleging a discrimination based on a

U. S. Supreme Court’s Decision o An employee alleging a discrimination based on a failure to accommodate has to show: − That she requested and was denied an accommodation − That the employer accommodated others with similar restrictions o Employer can rebut by showing that it has a legitimate non-discriminatory reason for not accommodating in this particular situation − May be related to unique aspects of the jobs or individuals’ circumstances

U. S. Supreme Court Ruling o Employee can defeat summary judgment if she shows

U. S. Supreme Court Ruling o Employee can defeat summary judgment if she shows that the employer’s policies create a “significant burden” on pregnant workers and that the employer’s stated reasons for the policy do not justify the burden

New York Human Rights Law Guidance • New York State Human Rights Law Guidance

New York Human Rights Law Guidance • New York State Human Rights Law Guidance o “Pregnancy-related conditions need not meet any definition of disability to trigger an employer’s obligation to accommodation under this Law. Any medically-advised restrictions or needs related to pregnancy will trigger the need to accommodate, including such things as the need for extra bathroom breaks, or increased water intake”

Practical Takeaways • Requests for alterations in job duties related to pregnancy will need

Practical Takeaways • Requests for alterations in job duties related to pregnancy will need close attention • Is this a situation in which non-pregnant workers have been or would be accommodated? − If so, there will be a heavy burden on the employer to prove why a pregnant employee cannot be similarly accommodated • Lesser considerations, such as breaks, will be expected

Sex Discrimination and Leave • Female employees who give birth are entitled to 16

Sex Discrimination and Leave • Female employees who give birth are entitled to 16 weeks of paid leave. Male employees who become new parents are not eligible for this benefit. o Lawful or unlawful? • Female employees are entitled to leave during their period of physical disability following childbirth and then 4 weeks of parental leave at full pay. Male employees are entitled to 4 weeks of parental leave at full pay o Lawful or unlawful? • A parental leave policy that offers an enhanced leave benefit for the primary caregiver, regardless of gender o Lawful or unlawful?

New Protected Characteristics – New York State Human Rights Law • Familial Status –

New Protected Characteristics – New York State Human Rights Law • Familial Status – protects parents and guardians of minors “(a) any person who is pregnant or has a child or is in the process of securing legal custody of any individual who has not attained the age of eighteen years, or (b) one or more individuals (who have not attained the age of eighteen years) being domiciled with: (1) a parent or another person having legal custody of such individual or individuals, or (2) the designee of such parent”

New Protected Characteristics – New York State Human Rights Law • Associational status –

New Protected Characteristics – New York State Human Rights Law • Associational status – protects against discrimination based on one’s association or relationship with a person in a protected class o “Where the term “unlawful discriminatory practice” is used in the Human Rights Law, it shall be construed to prohibit discrimination against an individual because of that individual’s known relationship or association with a member or members of a protected category covered under relevant provisions of the Human Rights Law”

Note that familial status and associational status are non-discrimination obligations, not accommodation obligations

Note that familial status and associational status are non-discrimination obligations, not accommodation obligations

Sexual Orientation Discrimination • The current Title VII law in the Second Circuit: o

Sexual Orientation Discrimination • The current Title VII law in the Second Circuit: o Simonton v. Runyon, 232 F. 3 d 33, 36 (2 d Cir. 2000): "Title VII does not proscribe discrimination because of sexual orientation. ” Price Waterhouse applies only to gender nonconformity; sexual orientation cannot be “bootstrapped” into Title VII “because not all homosexual men are stereotypically feminine, and not all heterosexual men are stereotypically masculine. But, under this theory, relief would be available for discrimination based upon sexual stereotypes. ” • However, the EEOC has filed lawsuits based on its sexual orientation-as-sex-stereotyping theory • The New York Human Rights Law prohibits discrimination on the basis of sexual orientation

Transgender Discrimination: Title VII • The EEOC’s position is that transgender status is protected

Transgender Discrimination: Title VII • The EEOC’s position is that transgender status is protected by Title VII o Macy v. Dep't of Justice, EEOC Appeal (2012), the EEOC ruled that discrimination based on transgender status is sex discrimination in violation of Title VII o Lusardi v. Dep't of the Army, EEOC Appeal (2015), the EEOC rules that individuals have the right to restroom use based on gender identity

Transgender Discrimination: Title VII • EEOC Fact Sheet: Bathroom Access Rights for Transgender Employees

Transgender Discrimination: Title VII • EEOC Fact Sheet: Bathroom Access Rights for Transgender Employees Under Title VII (May 2016) o denying an employee equal access to a restroom corresponding to the employee's gender identity is sex discrimination; o an employer cannot condition this right on the employee undergoing or providing proof of surgery; o an employer cannot avoid the requirement to provide equal access to a common restroom by restricting a transgender employee to a single-user restroom instead (though the employer can make a single-user restroom available to all employees who might choose to use it); and o the discomfort of others is not a justification for denying restroom use based on gender identity

Transgender Discrimination: Title VII • The law in the Second Circuit is developing •

Transgender Discrimination: Title VII • The law in the Second Circuit is developing • The Second Circuit found in 2000 that Title VII does not prohibit sexual orientation discrimination • However, in March 2016, a lower district court found that transgender identity is protected by Title VII. Fabian v. Hospital of Central Connecticut

Transgender Discrimination: New York State Human Rights Law • NYS Human Rights Law prohibits

Transgender Discrimination: New York State Human Rights Law • NYS Human Rights Law prohibits sexual orientation discrimination • NYS Division of Human Rights new regulation states that the Human Rights Law protects on the basis of gender identity o “sex” includes gender identity and transgender status o “gender dysphoria” is a disability that must be accommodated

Practical Takeaways • Update your harassment and discrimination policies and EEO statements to extend

Practical Takeaways • Update your harassment and discrimination policies and EEO statements to extend to the new protected categories • Train supervisors and managers • Consider training employees on particularly sensitive or controversial inclusion issues before it becomes a “live” issue in your workplace

Harassment Investigations: A Lesson in Thoroughness • Vasquez v. Empress Ambulance Services, Inc. (2

Harassment Investigations: A Lesson in Thoroughness • Vasquez v. Empress Ambulance Services, Inc. (2 nd Circuit, August 29, 2016) • Male employee made several verbal sexual advances to female employee, including sending her an explicit picture of himself • Female employee made an internal complaint to H. R. • Male employee produced evidence in the form of text messages from the female employee showing that the female employee was an eager and active participant in the sexting

 • The investigation committee called the female in, told her what they had

• The investigation committee called the female in, told her what they had seen and fired her for sexual harassment

Here’s where it gets interesting • Come to find out, the male employee fabricated

Here’s where it gets interesting • Come to find out, the male employee fabricated the evidence against the female • The Second Circuit found that the employer could be liable for retaliation because the employer was negligent in its investigation and therefore acted on the male employee’s retaliatory motive

Practical Takeaways • A good, fair and thorough investigation is critical • Be cautious

Practical Takeaways • A good, fair and thorough investigation is critical • Be cautious of text, email and other evidence that can be fabricated • Give employees the opportunity to present contradictory evidence You don’t have to be right, but you do have to be reasonable

Open Discussion

Open Discussion