Over the last several months, I’ve been asked to do far more sexual harassment prevention trainings than typical and the issue of profanity in the workplace has popped up.

No doubt that much of this is due to the recent spate of cases of very public sexual harassment and assault cases (Thank You Matt Lauer!). This has led to the #metoo and #timesup movements becoming more than a mere hashtag.

But at a recent training, we got into a discussion about whether profanity could ever be used in the workplace.  Does it create a “hostile work environment” under federal anti-discrimination law?

I’m not the only one to think about this question. In fact, the Hostile Work Environment podcast (how appropriate!) tackled this subject a few weeks back — and also delved into the subject about whether an employee’s use of profanity could be protected speech as well.

But one of the most interesting cases I’ve seen on the subject differentiated between different types of profanity (h/t Ohio Employer’s Law Blog for the original cite to this case) and came out of the 11th Circuit early this decade.

Before we go further, let me use the words of the 11th circuit to issue a warning:

We recite the profane language that allegedly permeated this workplace exactly as it was spoken in order to present and properly examine the social context in which it arose. We do not explicate this vulgar language lightly, but only because its full consideration is essential to measure whether these words and this conduct could be read as having created “an environment that a reasonable person would find hostile or abusive.”

(I’m still going to keep this post PG-13 but now that you’ve been warned, read on….)

The court’s decision focuses on the difference between profanity of the general type, which it calls “general, indiscriminate vulgarity” (presumably, words like “sh**”), and “gender-specific, derogatory comments made about women on account of their sex.”

The court said that there was ample evidence that, as one of two female workers, the Plaintiff overheard coworkers used such gender-specific language to refer to or to insult individual females with whom they spoke on the phone or who worked in a separate area of the branch. Indeed, the court said that her male co-workers referred to individuals in the workplace as “bitch,” “f**king bitch,” “f**king whore,” “crack whore,” and “c**t.”

And thus begins a discussion of profanity that hasn’t often been seen in the court system.

[T]he context may illuminate whether the use of an extremely vulgar, gender-neutral term such as “f**king” would contribute to a hostile work environment. “F**king” can be used as an intensifying adjective before gender-specific epithets such as “bitch.” In that context, “f**king” is used to strengthen the attack on women, and is therefore relevant to the Title VII analysis. However, the obscene word does not itself afford a gender-specific meaning. Thus, when used in context without reference to gender, “f**k” and “f**king” fall more aptly under the rubric of general vulgarity that Title VII does not regulate….

The court then focuses on the notion that what is important to decide if conduct is “severe or pervasive” to create a work environment is the entirety of the situation.

[W]ords and conduct that are sufficiently gender-specific and either severe or pervasive may state a claim of a hostile work environment, even if the words are not directed specifically at the plaintiff…. It is enough to hear co-workers on a daily basis refer to female colleagues as “bitches,” “whores” and “c**ts,” to understand that they view women negatively, and in a humiliating or degrading way. The harasser need not close the circle with reference to the plaintiff specifically: “and you are a ‘bitch,’ too.”

The court opines that “Evidence that co-workers aimed their insults at a protected group may give rise to the inference of an intent to discriminate on the basis of sex, even when those insults are not directed at the individual employee.”

But what if the workplace just had a lot of profanity?

Then, the court says that might not be enough. “If the environment portrayed by [the Plaintiff at the Company] had just involved a generally vulgar workplace whose indiscriminate insults and sexually-laden conversation did not focus on the gender of the victim, we would face a very different case. However, a substantial portion of the words and conduct alleged in this case may reasonably be read as gender-specific, derogatory, and humiliating.”

For employers, the case is a reminder than a hostile work environment need not have pornography in the workplace to satisfy the standard; words can be enough depending on the context and the pervasiveness of it.  Employers should be mindful that profanity in the workplace — particularly when it is sexually-laden and directed at or around others — can have serious legal ramifications.

One last point: The employer here argued that the environment existed before the employee joined too and that it was not, therefore, directed to the Plaintiff.  The court easily dismissed that argument.   Once [the Plaintiff] entered her workplace, the discriminatory conduct became actionable under the law. Congress has determined that [the Plaintiff] had a right not to suffer conditions in the workplace that were disparately humiliating, abusive, or degrading.”

 

The American Bar Association (ABA) holds its Midyear Meeting later this week in Vancouver (Canada!) and the House of Delegates is scheduled to debate several resolutions of interest to employers and employment lawyers.

As readers of this blog, you happen to “know” the Connecticut State Delegate (me!), coordinating a delegation of several esteemed lawyers from Connecticut.

Thus, if you have any questions or concerns about the resolutions, please e-mail me this week at dschwartz@goodwin.com.

Or feel free to add a comment below.

You can review all the resolutions here but the few that I would pay attention to are as follows:

  • Resolution 116A supports an interpretation of Title VII of the Civil Rights Act of 1964 that defines sex discrimination by covered employers to include discrimination on the basis of sexual orientation and gender identity.
  • Resolution 117 urges courts to recognize that service in the United States Armed Forces should not be restricted and that individuals should not be discriminated against on the basis of sexual orientation or gender identity.
  • Resolution 302 tackles the wave of sexual harassment allegations that have been making headlines every day.  In doing so, it would urge “all employers, and specifically all employers in the legal profession, to adopt and enforce policies and procedures that prohibit, prevent, and promptly redress harassment and retaliation based on sex (including gender, gender identity, and sexual orientation) and the intersection of sex and other protected classes.”  The resolution contains a list of suggestions for employers to follow.

The ABA’s resolutions set the policies for the organization to follow.  Thus, the debates that flow from these are more than just theoretical, they help set the path for the ABA to follow. Attorneys should take note and follow the goings on. I’ll have an update for you in an upcoming blog post as well.

My colleague, Gary Starr, returns this morning with a post on a recent case that has implications for employers nationwide.

You wouldn’t think that fingerprinting would be brought into the world of religious accommodations.

After all, the importance of background checks cannot be denied, particularly when the prospective employee is going to work with children or the elderly.

Vulnerable populations need assurance that those with whom they will be dealing have their best interests at heart.

Background checks, however, can raise strange issues for employers when the person asked to authorize a background check indicates that he/she has a religious objection to fingerprinting.

In a recent federal case (download here), a bus driver, who was required to submit to a background check to retain her position, refused to undergo a fingerprint background check.

She explained that it was her sincere religious belief that fingerprinting is the “mark of the devil” and that fingerprinting would bar her entry into heaven.

She asked for an accommodation.

The employer checked with state and federal authorities responsible for doing the background checks, including the FBI, the State Department of Education, and the School District for whom she drove.

They were unable to provide guidance on what alternatives there were under the state law.  As a result, the bus company, faced with a criminal charge and fine if the driver were not tested, terminated the driver.

The fired employee then sued.

The bus company sought to have the case dismissed without having to go through discovery or a trial, but the court rejected this effort.

The court found that the bus driver sufficiently described her sincere religious belief about being barred from Heaven if she were fingerprinted and that an accommodation should have been made, as there was an insufficient basis to establish that the employer would suffer an undue hardship, at least at the initial phase of the litigation.

Further, the court said the employer’s assertion that it lacked the power to grant an exception to the fingerprinting requirements required greater exploration during discovery.

The bus company now must go through discovery before it has another opportunity to have the case thrown out short of a trial.

Connecticut employers face the same potential problem, because Connecticut law does not provide an alternative to fingerprinting.

Recognizing that potential issue, it will be important to look for ways to accommodate applicants and employees who raise religious objections.

Certainly, there are persons who cannot be fingerprinted or whose fingerprints cannot be read.  Employers should seek out accommodations and carefully document the steps they take to explore alternative testing techniques.

They must be able to show that the steps to find an accommodation were reasonable and if an accommodation were not possible, why the situation would create an undue burden.

It would be far better to take the time before firing or rejecting an applicant to explore what is possible than to defend a lawsuit.

For more on Kaite v. Altoona Student Transportation, Inc., click here.

 


Today marks Rosh Hashanah, the Jewish New Year and one of the holiest days of the Jewish year.

But it’s a day of business to many.

What should employers be doing for employees, though, that are celebrating the day?

There are actually a few different ways to answer the question.

The first answer, looking just at the legal obligations, is that the employer must provide an accommodation under Title VII.

But that standard is different than an ADA analysis.

Instead, the law requires an employer or other covered entity to reasonably accommodate an employee’s religious beliefs or practices, unless doing so would cause more than a minimal burden on the operations of the employer’s business.

Thus, giving an employee a day off to observe the holiday will, in many instances, be deemed to be a reasonable accommodation to the employee.

So that answers the legal obligation, but what else should an employer be doing?

Well, are you e-mailing that employee on their “day off”? Are you scheduling important meetings, even though you know that employee can’t attend?

Those things aren’t necessarily illegal.

And they aren’t always a bad idea either. Life moves on and conflicts are inevitable.

But a bit of sensitivity can help minimize those issues and some foresight can avoid the issue altogether.

I know that when a meeting gets scheduled, my own practice is just remind people of the holiday and leave it at that.

It happens. I just don’t get riled up about it

But I know others who when asked to attend something on holidays respond by saying: “How would you feel if I called you on Christmas?”

That only gets to part of the issue. Rather, pestering the employee out on a holiday, sends the wrong message to employees that their religious observances are something to be ignored. Meetings can go on but what can be put off for the day the employee is absent?

So before you decide to send multiple e-mails to your co-worker, or someone else observing the holiday, insisting on a response particularly when you know they don’t want to respond, think about the implications further.  It really reflects more on you than them.

An e-mail is an e-mail.

Except when it means something more.

U.S. Supreme Court
U.S. Supreme Court

Over the last week or so, there have been two prominent Circuit Court decisions addressing whether Title VII (the federal law prohibiting employment discrimination on the basis of race, color, sex, religion and national origin) can be interpreted to also protect employees from being discriminated against because of their sexual orientation.

The Second Circuit, which covers Connecticut, basically said no in a decision last week in Christiansen v. Omnicom Group.  The court did open the door a bit to a claim that an employee was discriminated against because of sex stereotyping.

Yesterday, the Seventh Circuit created the first split at the appellate level, finding that Title VII does cover such claims in the Hivley v. Ivy Tech Community College case.   Jon Hyman, of the Ohio Employer’s Law Blog, does a good job addressing the historic nature of the case here.

Back in 2016, I wrote that it was somewhat disappointing that we were still having these battles at the federal level, considering that Connecticut already had state laws prohibiting discrimination on the basis of sexual orientation.  “Those who are gay, lesbian, bisexual or transgender frankly deserve better, in my view. They deserve their own federal law giving them the workplace protections that Connecticut has given.  Until then, the battles over the scope of Title VII will continue.”

Indeed, the battles are now going to get bigger. One or more of these cases are now likely to get heard at the U.S. Supreme Court level where it is far from certain whether Title VII can really be read so broadly.

Of course, Congress could end these debates once and for all by passing a bill prohibiting employment discrimination on the basis of sexual orientation as I discussed way back in 2008.

But unfortunately, we seem to be no closer to passage of a bill than we were a decade ago.

Connecticut employers should largely ignore the press reports about Title VII and instead focus on their obligations to comply with state law.  Eventually the federal courts will work these issues out, but the issue is mainly moot in Connecticut.

MTMMary Richards’ job interview with Lou Grant is, perhaps one of the most famous job interviews ever. So says Time magazine.

Before I go on, though, there are probably more than a few of you who don’t know what I’m talking about.

But with the passing of Mary Tyler Moore earlier today here in Connecticut, I was reminded of an early exchange from her television show that was included in an employee training seminar I did for employers many years ago.  It was used as an example (with humor) of what NOT to do in a job interview as a supervisor and there were many in the audience who remembered that television show.

I haven’t been able to find the actual video online – but YouTube does have a remake of the job interview featuring cartoons.  And you can get a sense of the dialogue elsewhere.

First, you have the supervisor (Lou) asking Mary what her age was. (Sigh.) To compound matters, he then asks what her religion is. (Double sigh.)

But this is where the show was groundbreaking — Mary doesn’t just respond.  She’s a “modern woman” (as The New York Times called her) and tells him: “I don’t know quite how to tell you this, but you’re not allowed to ask that question when someone is applying for a job. It’s against the law.”  He pushes back — “You gonna call the cops?” To which, Mary demurs.

And the interview continues with personal questions including whether she was married (she was not).  Then Mary stands up and calls him out for asking so many questions that have nothing to do with the job.

Lou responds in a classic line: “You’ve Got Spunk.”  Of course, he then says he hates “spunk” but this was the early 1970s and she was still hired.

It was groundbreaking television.  As NPR reported from an interview Ed Asner (who played Lou), that moment was critical: “It was the most powerful moment in theater I’ve had, because she played it so beautifully,” Asner told NPR in 2001. “The audience was going ‘oh-goo-goo’ at that moment.”

A few years ago, Time Magazine — in calling this show’s pilot one of the 10 best of all time — noted that it really formed the foundation of the workplace-as-family sitcom that so many other shows tried to copy.

As a child of the 70s and 80s, Mary Tyler Moore stood out to me because, well, she kinda seemed like my mom who was already in the workplace. Growing up, I didn’t see it as that unusual.

But now with the hindsight of history, all employment lawyers can point to Mary Tyler Moore as giving workplace issues their rightful place. And for a generation of women, Mary Tyler Moore represented more than just a television show.  She represented them.

Proper hiring procedures are still a topic we’re talking about today and I’ll be presenting on the topic next month.  Maybe it’s time I bring back the Mary Tyler Moore reference.  Watch for details soon.

Rest in Peace, Mary Tyler Moore.

(Due to an editing error (and spell check) an early version of this post referred to her character as Mary Roberts; it is obviously Mary Richards.) 

seminarI still remain amazed at the sold-out crowd we had at last week’s Labor & Employment Law seminar.  Well over 250 people registered for the program and I kind of wanted to whisper to people: “You know this is just a LEGAL seminar, right?”

But no matter. Employment law issues are as popular as ever and we had great feedback from the crowd.

One of the topics we handled was one suggested by several attendees at last year’s seminar: Transgender Issues in the Workplace.  I’ve talked about this before in some prior posts here and here.

Perhaps not surprisingly, one of the areas we covered was restroom access.  This seems to be one area that employers continue to grapple with. Indeed, as I noted last year in a post on the topic, the issue “that seems to get the most press is restroom access.”

Just a day after our seminar, the U.S. Supreme Court accepted a case on this very topic — meaning we are likely to get some court guidance at last.  Although the case involves student access to bathrooms, many are hoping that the decision provides some clarity to employers on the issue as well.

But as SCOTUSBlog notes, the court is tackling the issue from more of a technical perspective than anything else:

The Supreme Court added five new cases to its docket this afternoon. Among the new grants was Gloucester County School Board v. G.G., the case of a transgender student who identifies as a boy and wants to be allowed to use the boys’ bathroom at his Virginia high school.

Although the controversy over the school board’s policy requiring students to use the restrooms and locker rooms that match the gender that they were assigned at birth instantly became the highest-profile case of the court’s term so far, the dispute actually centers on more technical (and, some would say, rather dry) legal issues. In this case, the district court ruled against G.G., relying on a 1975 regulation that allows schools to provide “separate toilet, locker room, and shower facilities on the basis of sex,” as long as those facilities are comparable to those provided to the opposite sex. But, in January 2015, the Department of Education’s Office of Civil Rights issued an opinion letter stating that, if schools separate students in restrooms and locker rooms on the basis of their sex, a “school generally must treat transgender students consistent with their gender identity.” In light of the 2015 letter, the U.S. Court of Appeals for the 4th Circuit reversed and ruled for G.G. It relied on the Supreme Court’s 1997 decision in Auer v. Robbins, which held that courts generally should defer to an agency’s interpretation of its own regulation.

Still, to see issues of gender identity being heard at the U.S. Supreme Court shows how far this issue has come in a relatively short period of time.

Any decision from the court, however, is likely to have a muted impact in Connecticut. Connecticut already protects against discrimination on the basis of gender identity and expression, in contrast to federal law which isn’t as explicit.

At the seminar, one of my law partners, Kevin Roy, suggested that employers who feel flummoxed by the legal rules, should approach the issue from the perspective of trying to treat employees with “dignity and respect”.  That may be the simplest and easiest way to tackle a still-evolving issue.

restrm1Last fall, I raised the issue of bathroom access for employees that corresponds with their gender identity.

The issue, however, that seems to get the most press is restroom access.

Indeed, we’re now getting federal guidance on how to deal with the issue of restroom access. That remains one of the bigger issues (a proposition up on a Houston ballot turned into an ugly campaign of “No Men in Women’s Bathrooms”) but it doesn’t seem again to translate to claims filed.

What’s happened since then? Well, we’ve seen it become a topic on the presidential campaign trail and in North Carolina.

But we’ve also seen the EEOC say: Wait a minute. Federal law has something to say on this too.

Yesterday, the EEOC went a step further and issued a new fact sheet reminding employers that even a contrary state law isn’t a defense.

In Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821, 2012 WL 1435995 (Apr. 12, 2012), the EEOC ruled that discrimination based on transgender status is sex discrimination in violation of Title VII, and in Lusardi v. Dep’t of the Army, EEOC Appeal No. 0120133395, 2015 WL 1607756 (Mar. 27, 2015), the EEOC held that:

  • denying an employee equal access to a common restroom corresponding to the employee’s gender identity is sex discrimination;
  • an employer cannot condition this right on the employee undergoing or providing proof of surgery or any other medical procedure; and,
  • 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).

Contrary state law is not a defense under Title VII. 42 U.S.C. § 2000e-7.  In G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., — F.3d –, 2016 WL 1567467 (4th Cir. 2016), the United States Court of Appeals for the Fourth Circuit reached a similar conclusion by deferring to the Department of Education’s position that the prohibition against sex discrimination under Title IX requires educational institutions to give transgender students restroom and locker access consistent with their gender identity.

Gender-based stereotypes, perceptions, or comfort level must not interfere with the ability of any employee to work free from discrimination, including harassment. As the Commission observed in Lusardi:  “[S]upervisory or co-worker confusion or anxiety cannot justify discriminatory terms and conditions of employment.  Title VII prohibits discrimination based on sex whether motivated by hostility, by a desire to protect people of a certain gender, by gender stereotypes, or by the desire to accommodate other people’s prejudices or discomfort.”

Connecticut is one of the few states that already prohibits discrimination on the basis of gender identity. Thus, the EEOC’s statement should be seen as one in support of the interpretation in Connecticut.

For employers, keep it simple: Let employees use the bathroom that corresponds to the employee’s gender identity.  But it can also mean turning single-occupant bathrooms into gender-neutral ones too.  You can look at the OSHA guidance on this issue for more best practice tips.  If any employee complains, well, that’s not enough of a reason to deny access.

gavelIn an decision of first impression in Connecticut, a federal court on Friday ruled that a transgender discrimination claim based on a failure to hire can proceed under both Title VII and Connecticut’s counterpart, CFEPA.

While the groundbreaking decision in Fabian v. Hospital of Central Connecticut (download here)  is sure to be the subject of discussion, as the court notes, Connecticut has — in the interim — passed a state law explicitly prohibiting discrimination on the basis of gender identity. Thus, for a few years now, Connecticut has already explicitly prohibited transgender discrimination under state law. (The case was based on facts that occurred before passage of the state’s anti-discrimination law.)

But the decision obviously goes further than that and takes up the logic advanced by the EEOC and others of late — namely that Title VII’s prohibition of discrimination “because of…sex” should be read to include transgender discrimination.  The court’s opinion should be mandatory reading not only in the state, but for practitioners nationwide faced with similar claims.

The decision addresses the notion of gender-stereotyping discrimination noting that such discrimination is sex discrimination “per se”.  In the court’s view, the Supreme Court’s decision years ago in Price Waterhouse has led to a “significant shift in the direction of decisions examining alleged discrimination on the basis of transgender identity”.

In doing so, the court notes the split in the circuits that has been developing, even though the Second Circuit hasn’t truly spoken yet on the issue:

In sum, discrimination on the basis of transgender identity is now recognized as discrimination “because of sex” in the Ninth Circuit (as Schwenk recognized the abrogation of Holloway), the Sixth Circuit (as recognized in Smith), and in the Eleventh Circuit (as recognized in Glenn); and the E.E.O.C. (in Macy) and has agreed with that authority.  Discrimination on the basis of transgender identity is regarded as not constituting discrimination “because of sex” in the Tenth Circuit (under Etsitty). The continued vitality the pre–Price Waterhouse decisions in the Seventh and Eighth Circuits (Ulane II & Sommers, respectively)  is unclear.

Judge Underhill, who penned the decision, then goes on to discuss the language of “because of…sex” found in the statute itself.  He notes that:

discrimination on the basis of gender stereotypes, or on the basis of being transgender, or intersex, or sexually indeterminate, constitutes  discrimination on the basis of the properties or characteristics typically manifested in sum as male and female — and that discrimination is literally discrimination “because of sex.”

On the basis of the plain language of the statute, and especially in light of the interpretation of that language evident in Price Waterhouse’s acknowledgement that gender-stereotyping discrimination is discrimination “because of sex,” I conclude that discrimination on the basis of transgender identity is cognizable under Title VII.

For employers in Connecticut, this decision is likely to be closely followed by other federal courts in Connecticut. Judge Underhill is well-regarded and until this decision gets reviewed by the Second Circuit, it’s hard to see how other judges in Connecticut will decline to follow it.

In other words, employers in Connecticut should be alert that a plaintiff may make a gender identity claim under Title VII in Connecticut.

But, as I noted at the top, this decision’s impact in Connecticut may be more muted because Connecticut has now explicitly protected gender identity in the state’s anti-discrimination statutes.

Nevertheless, the decision is an important one to read in the field of gender identity claims.

DontWorryBeYesterday, the U.S. Supreme Court ruled that the EEOC has a duty to conciliate that has go a bit beyond words before filing suit as a party.  In the case, EEOC v. Mach Mining (download here), the employer argued that the EEOC cannot just say that it has tried to resolve the matter through conciliation; the Supreme Court agreed, but barely, saying that in many cases, an affidavit from the EEOC attesting to its efforts is going to be sufficient. And even if it isn’t, the EEOC can get a do-over (my words, not the courts) if a court finds that its conciliation efforts did not meet the statutory minimum.

To some, this decision is a huge deal: “The implications for employers as a result of this decision cannot be overstated.”  Why? Because the EEOC will have to revisit its litigation strategy and focus on being able to show its conciliation efforts before a “third party”.

To others, the decision is disappointing “because the Court declined to authorize dismissal of the EEOC’s lawsuits if conciliation efforts were not undertaken.”

What are the implications though for Connecticut employers?

For the overwhelming majority of Connecticut employers, my take is different from both of these and is essentially the title to a Bobby McFerrin song: Don’t Worry, Be Happy. 

Sure, be happy that the Court agreed that the EEOC cannot pay lip service to conciliation efforts.  It’s a small “victory” for employers.  It could be worse.

But don’t worry about this decision because you’re very likely to never have to deal with this issue.

Why? Because in Connecticut, the state agency — the Connecticut Commission of Human Rights and Opportunities — mainly calls the shots.  Indeed, in the last ten years since April 2005, the EEOC has brought suit only five times against Connecticut employers in federal court here (though, 3 of those suits are in the last 2 years).

Quite simply, the EEOC plays a very very small role in how employment laws in this state are enforced.  Thus, any decision that affects how the EEOC handles the small numbers of cases it brings against employers is going to have just a minimal impact in Connecticut.

To be sure, in the unlikely event you end up being the subject of an EEOC investigation, you should take your efforts to conciliate with the EEOC seriously and document them. But most employers here will never have that happen. Indeed, you’re much more likely to get a lawsuit by an employee.

So, read the decision if you must. But focus on other areas of compliance instead of getting caught up in the latest and greatest from the Supreme Court.

And feel free to whistle with the earworm that is “Don’t Worry Be Happy” below.