Orientation Discrimination and Sexual Harassment

Transcription

1 Employment Law Yearbook 2013, published by Practicing Law Institute (PLI) Chapter 3: Gender and Sexual Orientation Discrimination and Sexual Harassment 3:1 Introduction 3:2 Discrimination Based on Gender and Related Characteristics 3:2.1 Gender Discrimination [A] Class Action Certification [B] Evidence [C] Reverse Bias Sex Discrimination [D] Title VII s Reach 3:2.2 Sexual Orientation and Gender Stereotyping 3:2.3 Pregnancy Discrimination and Nursing Mother Laws [A] Pregnancy Discrimination Act [B] Protections for Nursing Mothers 3:2.4 Physical and Testing Requirements 3:2.5 Health Plan Coverage Issues [A] Prescription Contraceptive Coverage 3:3 Equal Pay Act 3:3.1 Establishing a Prima Facie Case 3:3.2 Employer Defenses 3:3.3 Statute of Limitations 3:3.4 EEOC Guidance 3:3.5 Legislation and Administrative Developments 3:4 Sexual Harassment 3:4.1 Discrimination Because of Sex 3:4.2 Explicit Alteration of Fundamental Conditions of Employment: Tangible Employment Action [A] Case Law Defining Tangible Employment Action [B] EEOC Enforcement Guidance on Tangible Employment Action 3:4.3 Constructive Alteration of Conditions of Employment or a Hostile Work Environment [A] Welcomeness [B] [C] Cases Finding Severe or Pervasive Requirement Met Cases Finding Severe or Pervasive Requirement Not Met 189

2 EMPLOYMENT LAW YEARBOOK :4.4 Affirmative Defenses [A] Employer s Duty to Exercise Reasonable Care to Prevent Harassing Behavior [B] Employer s Duty to Exercise Reasonable Care to Correct Harassing Behavior Promptly [B][1] Employer Response Found to Be Inadequate [B][2] Employer Response Found to Be Appropriate [B][3] Employer Liable for Retaliation by Other Non- Supervisor [B][4] Acts of Non-Employees [C] Employee Unreasonably Failed to Take Advantage of Opportunities to Avoid Harm [C][1] Plaintiff s Failure to Complain [C][2] Timeliness of Plaintiff s Complaint [D] EEOC Enforcement Guidance on Employer Liability for Harassment by Supervisors 3:4.5 Evidentiary Issues in Sex Harassment Cases: Effect of Statute of Limitations on Evidence of Acts Occurring Before Limitations Period 3:4.6 Application of Legal Standards: Summary Judgment Versus Jury Trials 3:4.7 Punitive Damages 3:4.8 Principles of Vicarious Employer Liability and Concepts of Agency: When Is an Individual Considered a Supervisor? [A] EEOC Guidance [B] Representative Cases 3:4.9 Individual Supervisor Liability [A] Federal Law [B] State Law [B][1] California [B][2] New York 3:4.10 Other Procedural Issues [A] Pattern-or-Practice Cases [B] EEOC Waiting Period 3:4.11 Theories Used by Accused Sexual Harassers Who Have Been Disciplined or Terminated 3:4.12 Attorney Fees Where Plaintiff s Lawsuit Is Frivolous, Unreasonable, or Without Foundation 190

3 Gender/Sexual Orientation Discrimination/Harassment 3:2 3:1 Introduction This chapter summarizes case law and other developments in the area of gender and sexual orientation discrimination, including the prohibition against sexual harassment. Section 3:2 focuses on discrimination based upon sex and related characteristics. Section 3:3 discusses developments under the Equal Pay Act. Section 3:4 reviews recent case law analyzing claims of sexual harassment. 3:2 Discrimination Based on Gender and Related Characteristics Title VII makes it unlawful to discriminate against any employee or applicant for employment because of his/her sex in regard to hiring, termination, promotion, compensation, job training, or any other term, condition, or privilege of employment, and outlaws employment decisions based on sexual stereotypes. Title VII also prohibits making employment decisions based on gender stereotypes. The law prohibits both intentional discrimination and neutral job policies that disproportionately exclude individuals on the basis of sex and that are not job-related. Title VII also specifically protects workers from pregnancy discrimination, as set forth by the Pregnancy Discrimination Act of Ironically, sex was only added to Title VII s list of protected categories in a failed last-ditch effort to defeat the legislation. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, (1986). However, since its inauspicious beginnings, claims of workplace sex discrimination have been one of the more frequently litigated areas of employment discrimination law. The Equal Employment Opportunity Commission (EEOC) reported receiving 30,356 sex-based charges in fiscal year 2012, an increase from the 28,534 in fiscal year These charges accounted for 30.5% of the 99,412 total charges received by the EEOC in The EEOC resolved 32,149 sex-based charges, contributing to a reduction in the EEOC s backlog of such charges. In 2012, the EEOC recovered $138.7 million in monetary benefits for sex-based charges exclusive of any recoveries through litiga tion, slightly down from the record recovery of $145.7 million in The number of settlements in 2012 decreased slightly to 3,073 from an all-time high of 3,200 in

4 3:2.1 EMPLOYMENT LAW YEARBOOK :2.1 Gender Discrimination [A] Class Action Certification Dukes v. Wal-Mart, 131 S. Ct (2011): The Supreme Court held that a class action alleging sex discrimination was improperly certified under Rule 23 of the Federal Rules of Civil Procedure because plaintiffs failed to meet the commonality requirement under Rule 23(a)(2). The Court also found that the class should not have been certified under Rule 23(b)(2) because the monetary relief sought by the plaintiff class was not incidental to the requested injunctive or declaratory relief. In Dukes, plaintiffs sued under Title VII on behalf of roughly 1.5 million women, including both salaried and hourly employees in various positions who are or were employed at one or more of Wal-Mart s 3,400 stores across the country. They alleged that Wal-Mart s centralized structure facilitates gender discrimination throughout Wal-Mart stores in a way that impacts all women who work or have worked at Wal-Mart. Plaintiffs alleged that women employed in Wal-Mart stores: (1) are paid less than men in comparable positions, despite having higher performance ratings and more seniority, and (2) receive fewer and wait longer for promotions to in-store management positions than male employees. On June 21, 2004, the district court issued an order granting in part and denying in part plaintiffs motion for class certification. On plaintiffs claims for equal pay, the district court granted plaintiffs motion as to issues of alleged discrimination and all forms of requested relief. As to plaintiffs promotion claim, the court certified the proposed class as it related to issues of alleged discrimination (including liability for punitive damages) as well as injunctive and declaratory relief. However, the district court denied plaintiffs request for certification with respect to backpay claims because data relating to challenged promotions was not available for all class members. Dukes was upheld on review before the Ninth Circuit in 2007, with only minor modifications to the size of the potential class. See Dukes v. Wal-Mart, 509 F.3d 1168 (9th Cir. 2007). On February 13, 2009, however, the Ninth Circuit granted Wal-Mart s petition for rehearing en banc on the class action certification. The en banc panel affirmed certification of a 500,000-plus nationwide class, noting that mere size does not render a case unmanageable. Dukes, 603 F.3d at 628. The en banc panel limited the class to claims for injunctive relief, declaratory relief, and backpay for those employees who were employed on or after the date the complaint was filed. However, it did not reject the possibility of additional classes. Rather, it remanded to the district court to determine whether to certify an additional class or classes 192

5 Gender/Sexual Orientation Discrimination/Harassment 3:2.1 involving punitive damages or claims of former employees. However, the dissenting judges disagreed and voiced their concern about the opinion s significant negative impact on employers. The dissent warned that [t]he door is now open to Title VII lawsuits targeting national and international companies, regardless of size and diversity, based on nothing more than general and conclusory allegations, a handful of anecdotes, and statistical disparities that bear little relation to the alleged discriminatory decisions. Id. at 652. In a decision that will likely impact class actions of every stripe, the U.S. Supreme Court reversed. Wal-Mart v. Dukes, 131 S. Ct (2011). In doing so, the Court stated that the crux of this case is commonality, and plaintiffs failed to meet their burden under Rule 23(a)(2). Justice Scalia, writing for Justices Roberts, Kennedy, Thomas, and Alito, explained that plaintiffs were attempting to sue about literally millions of employment decisions at once. But he noted that, [w]ithout some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members claims for relief will produce a common answer to the crucial question why was I disfavored. Any plaintiff can craft a complaint to raise common questions. But, [r]eciting these questions is not sufficient to obtain class certification. Rather, the claims must depend on a common contention that can be resolved in one stroke and is capable of classwide resolution. The Court concluded that plaintiffs lacked enough glue to hold their claims together. Wal-Mart had no generally applicable testing procedure disfavoring women, so plaintiffs instead tried to show that the company had a general policy of discrimination. Plaintiffs only evidence was the testimony of a sociological expert who opined that Wal-Mart had a strong corporate culture that made it vulnerable to gender bias. What the expert could not do, however, was to say how many or which employment decisions at Wal- Mart were affected by stereotyped thinking. The Court therefore disregarded the expert s testimony. The Court also cast doubt on whether the expert s opinion should have even been admissible in this circumstance, under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). Likewise, even though they presented statistical evidence of sex-based disparities in Wal-Mart s workforce, the plaintiffs could not show commonality by simply pointing to Wal-Mart s practice of granting individual managers discretion to make subjective employment decisions, according to the Court. Merely showing that Wal-Mart s policy of discretion has produced an overall sex-based disparity does not suffice. The Court s opinion also implicated the potential scope of pattern-or-practice claims asserted by government agencies by reiterating that Title VII claims require proof of the reason for a particular employment decision rather than simply proof of statistical disparity. 193

6 3:2.1 EMPLOYMENT LAW YEARBOOK 2013 On a more narrow issue, the Court unanimously held that the plaintiff class should not have been certified under Rule 23(b)(2), which allows for final injunctive relief or... declaratory relief for the class as a whole. The plaintiffs sued for backpay under this section of the statute, arguing that backpay was merely incidental to any injunctive or declaratory relief available under Title VII. However, the Court held that recovery of backpay was not an appropriate remedy under this section of the rule, not least because Wal-Mart was entitled to litigate its statutory defenses to individual [backpay] claims. While the Justices unanimously held that the class should not have been certified under Rule 23(b)(2), Justices Ginsburg, Breyer, Sotomayor, and Kagan dissented from the Court s opinion on the issue of commonality under Rule 23(a)(2) of the Federal Rules of Civil Procedure. They would have remanded the case to see if it could alternatively be certified under Rule 23(b)(3), which, among other things, requires plaintiffs to show that common issues predominate. The dissent expressed the view that the majority improperly imported the more demanding standard of Rule 23(b)(3) into what they believed should be an easily satisfied commonality inquiry under Rule 23(a)(2). Ellis v. Costco Wholesale Corp., 285 F.R.D. 492 (N.D. Cal. 2012): The California district court, upon remand after Dukes, certified a class of female Costco employees who alleged the company s promotion practices discriminated against women. 1 Plaintiffs Ellis, Horstmann, and Sasaki all sought promotions to either the assistant general manager or general manager positions within Costco. All three plaintiffs filed separate discrimination charges with the EEOC. Plaintiffs moved for class certification in August 2006 pursuant to Rule 23(b)(2) and (b)(3) seeking injunctive relief, lost pay, and compensatory and punitive damages. Ellis at 977. Among the evidence offered in support of certification were declarations from three experts who testified that females were underrepresented in desired managerial positions as compared with male peers at Costco and females in similar companies and that Costco had a pervasive culture of gender stereotyping and paternalism. Id. The Ninth Circuit reviewed the case in 2011, but remanded it to the district court on the issue of commonality due to the Supreme Court s recent decision in Dukes. The district court was also to make further determinations regarding the adequacy and typicality requirements of Rule 23(a) as well as 1. Although unpublished, this case has been included for illustrative purposes. 194

7 Gender/Sexual Orientation Discrimination/Harassment 3:2.1 the ability to certify the class for injunctive relief under Rule 23(b)(2). Upon remand to the district court, plaintiff decided to seek class certification in two hybrid classes to resolve any issues with adequacy of the class representative: one seeking injunctive relief under Rule 23(b)(2) and the other seeking monetary relief under Rule 23(b)(3). The California district court certified the classes of over 700 female employees on the discriminatory promotion claim. The court considered the application of a rigorous standard for commonality under Rule 23(a)(2) in Dukes and determined that the class here differed from the class in Dukes in three material ways. First, the quantity of proposed class members (700) was a mere fraction of the class of 1.5 million women sought to be certified in Dukes. Id. at Second, the proposed class was narrowed by job description focusing upon the General Manager and Assistant General Manager positions at Costco, instead of including women in all positions, as the proposed class in Dukes had sought to achieve. Id. at Finally, the court held that plaintiff identified specific employment practices Costco implemented companywide that contrasted with the simple delegation of hiring discretion to individual stores and managers in Dukes. Id. at 48. Furthermore, the district court held that the plaintiff met the typicality requirement of Rule 23(a) because the defendant s defenses against the named plaintiffs were typical of those Costco may raise against other members of the class. Finally, the district court found that the injunctive-seeking class met the requirements of Rule 23(b)(2) and the monetary relief class met the requirements of Rule 23(b)(3). [B] Evidence Vatel v. Alliance of Auto. Mfrs., 627 F.3d 1245 (D.C. Cir. 2011): The District of Columbia Circuit held that a female did not submit evidence of pretext after the evidence demonstrated that her supervisor recently retained her in her position but thereafter concluded that they had incompatible working styles. Karen Vatel was hired in June 2006 as an administrative assistant to Alliance s interim president. Six months later, David McCurdy was hired as the permanent president. McCurdy met with Vatel and determined that he would retain her as his administrative assistant. In May 2007, Lori Johnson, the human resources manager at Alliance, met with Vatel to express McCurdy s frustration with her work performance. Vatel met with Johnson on other occasions regarding McCurdy s concerns. On November 1, 2007, McCurdy terminated Vatel noting incompatibility between their working styles. Vatel filed suit claiming termination based upon gender and race. 195

8 3:2.1 EMPLOYMENT LAW YEARBOOK 2013 The district court granted summary judgment for Alliance and the appellate court affirmed. The appellate court noted that McCurdy s subjective explanation for his decision to terminate Vatel s employment was to be treated with caution, but the fact that McCurdy had hired the plaintiff within a year of terminating her was probative of the fact that his decision was not motivated by discriminatory animus. The court went on to comment that Vatel s positive impression of her working relationship alone could not defeat summary judgment. The record was undisputed that Vatel met with the human resources manager regularly and Vatel herself admitted that McCurdy avoided her. It was McCurdy s impression, not Vatel s, that was relevant to the termination decision. The court also was not persuaded by Vatel s argument that McCurdy was producing false evidence to mask a discriminatory purpose. The appellate court characterized the argument as speculative, pointing out that McCurdy knew her gender and race when he hired her the year before. Wierman v. Casey s Gen. Stores, 638 F.3d 984 (8th Cir 2011): The Eighth Circuit upheld summary judgment on plaintiff s Title VII discrimination claim because she did not show that the employer s proffered legitimate reasons for terminating her were a pretext. Charity Wierman was a store manager at Casey s General Stores ( Casey ). In January 2008, Wierman notified the company that she was pregnant and that her due date was in August Over the next two months, she took some time off due to doctor s appointments, morning sickness, and pregnancy-related back pain. In that time period, her regional supervisor discovered that Wierman was coming in for her shifts late but not recording the incidents of tardiness. He also discovered security camera footage of Wierman taking food and drink items from the store shelves without paying for them or not properly ringing the item up even if her employee discount made the item free. Casey fired Wierman in May 2008, just a few days after she took time off for pregnancy-related reasons. Wierman sued for violations of Title VII, the Missouri Human Rights Act (MHRA), and the Family and Medical Leave Act (FMLA). The Eighth Circuit affirmed the award of summary judgment to the defendant on the Title VII and FMLA claims. It found that Wierman failed to show that her tardiness and her violations of employee discount policy were 196

9 Gender/Sexual Orientation Discrimination/Harassment 3:2.1 pretexts for terminating her for being pregnant. Specifically, she did not show that the employer or supervisor treated any comparable non-pregnant employee more favorably. The court remanded to determine whether Wierman s MHRA claim was valid, because Wierman had demonstrated a genuine issue of fact whether her pregnancy was a contributing factor to her termination. [C] Reverse Bias Sex Discrimination United States v. Brennan, 650 F.3d 65 (2d Cir. 2011): The Second Circuit held that the City of New York s defense of an affirmative action plan did not apply to the city s remedial actions taken pursuant to consent decree and remanded for application of the court s interpretation of Ricci v. DeStefano, 557 U.S. 557 (2009), in considering if the city s actions were to make whole the victims of disparate racial and gender impact. Brennan and other white male custodians in the New York City public school system were denied permission to intervene in a settlement consent decree. The decree was entered to remedy Title VII violations in the school system s failure to hire racial minorities and females for custodian positions and included implementation of retroactive seniority for those not previously hired. The Second Circuit reversed the denial of intervention and remanded the matter to permit the intervention. On remand, the Brennan intervenors not only moved to intervene, but filed a separate civil action seeking, among other things, declaratory and injunctive relief against the city and the federal plaintiffs. The government chose not to defend some terms of the settlement that led to the intervention of two additional settlement offeree groups who benefited from the settlement. The Brennan plaintiffs and the two settlement offeree intervening groups moved for summary judgment. The district court issued three opinions. These opinions resulted in several rulings, which in relevant part held that: (1) the Brennan plaintiffs be certified as a class of individuals defined as all custodial employees whose seniority for purposes of transfers, [temporary assignments] and layoff protection ha[d] been adversely affected by the grant of seniority benefits to the Offerees (id. at 87 (citation omitted)); (2) the affirmative action framework of Johnson v. Transp. Agency, Santa Clara Cnty., 480 U.S. 616 (1987), and United Steelworkers v. Weber, 443 U.S. 193 (1979), applied to the analysis of the settlement and that the settlement terms did not violate Title VII, except for the layoff seniority provisions for non-victims of discrimination that would unnecessarily trammel upon the Brennan plaintiffs rights; and 197

10 3:2.1 EMPLOYMENT LAW YEARBOOK 2013 (3) the settlement was intended to include victims of discrimination in both the testing and recruiting process. The district court refused to incorporate the settlement into a consent decree. Brennan appealed, challenging provisions of the settlement that affected seniority rights as to layoffs, transfers, and temporary assignments to other schools. The Second Circuit vacated in part the district court s judgment as to the incumbent employees reverse discrimination claims. The Second Circuit found that the district court should have analyzed plaintiffs claims using the McDonnell Douglas framework and that the plaintiffs had established a prima facie case of discrimination. The appellate court also concluded that the district court skipped the necessary step of determining if the employer s action was in fact an affirmative action plan when employing a Johnson/Weber defense. The court of appeals held that New York s implementation of the settlement was not an affirmative action plan because the settlement plan was individualized, not beneficial to the protected class as a whole and best characterized as makewhole relief. Id. at 105. The Second Circuit specifically remarked that plaintiff, Ruben Miranda, a Hispanic male, was a victim of the settlement s relief. Miranda had passed one of the exams alleged to be discriminatory toward Hispanics, but he lost his seniority rights to women, Hispanics and other minorities as a result of the settlement. The court turned next to the second defense asserted by the city, which was that retroactive seniority awards were relief specific to the victims of unintended disparate impact (females and minorities). The Second Circuit concluded that the strong basis in evidence standard set forth in Ricci v. DeStefano, 129 S. Ct (2009), applied to this defense. Based upon Ricci, the court observed this standard requires an objective concern for liability not subjective fears of litigation when the gender or race-based action is taken, that a prima facie case of disparate impact (or strong basis in evidence for establishing one) exists and the practices at issue are not job-related [or] there was a less discriminatory alternative procedure which the employer refused to adopt. Id. at 112. In addition, the court held that the city must demonstrate that there is a strong basis in evidence of the necessity to take action to avert its liability for disparate impact. The court then remanded the case so the district court could consider the city s defense based on this standard. 198

11 Gender/Sexual Orientation Discrimination/Harassment 3:2.2 [D] Title VII s Reach Black v. Pan Am. Labs., LLC, 646 F.3d 254 (5th Cir. 2011): The Fifth Circuit concluded that the limitation on damages in Title VII applies to each party, not to each claim made by a party. Carleen Black was a pharmaceutical sales representative who took claims of gender and sex discrimination and retaliation to a jury trial after being terminated. The jury awarded her a total of $3,450,000 for backpay and compensatory and punitive damages. The district court eventually reduced her punitive damages to $200,000 pursuant to the Title VII statutory limit and reduced the compensatory and backpay damages to a total of $300,000. The defendant appealed the denial of its renewed motion for judgment as a matter of law as to the sufficiency of evidence of liability and the failure of the evidence to support punitive damages and backpay for her gender discrimination claim. Black cross-appealed the district court s limitation of her award. In her appeal, Black contended that the Title VII cap was to be applied to each claim and not her entire award. She argued that each claim was distinct and double recovery would not occur. The Fifth Circuit disagreed. In a matter of first impression, the court agreed with other circuits that have interpreted 42 U.S.C. 1981a to apply the damages cap to each party, as opposed to each claim. 3:2.2 Sexual Orientation and Gender Stereotyping Employers are increasingly facing nontraditional claims of discrimination under Title VII. Unlike the laws of California, New York, and several other states, Title VII does not currently recognize sexual orientation as a protected classification for purposes of bringing a claim for employment discrimination. However, based on the Supreme Court s opinion in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), plaintiffs have argued that claims related to discrimination based on sexual orientation or gender identity or expression are cognizable under a sex stereotyping theory. This theory may soon become unnecessary as legislative efforts have begun to extend federal protection to sexual orientation. In November 2011, Senator Joseph Lieberman introduced the Domestic Partnership Benefits and Obligation Act of 2011 (S. 1910, 112th Cong. (2011)). This bill, and its companion in the House (H.R. 3485, 112th Cong. (2011)), would extend federal benefits to domestic partners of federal employees. The Senate bill was approved in 2012, but the House version is still in committee. The proposed law would require the filing of an affidavit setting forth certain facts, including that the employee and his/her partner are at least eighteen years old and of the same sex, that they have a common resi- 199

12 3:2.2 EMPLOYMENT LAW YEARBOOK 2013 dence (or if not, describing the reasons therefore including financial or employment reasons), and that they intend to remain in their domestic partnership indefinitely. Currently, sixteen states plus the District of Columbia have laws making it illegal for employers to discriminate against employees on account of their sexual orientation and gender identity. These states include California, Colorado, Connecticut, Hawaii, Illinois, Iowa, Maine, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington. Five additional states, including Delaware, Maryland, New Hampshire, New York, and Wisconsin, prohibit discrimination based on sexual orientation. 2 Several other states, including Connecticut, Florida, Massachusetts, and New York, have interpreted statutory bans on sex and/or disability discrimination to protect employees from discrimination based upon gender identity or expression. In addition to these states, over ninety municipalities have enacted nondiscrimination provisions that afford similar protections for employees. Although Title VII law does not yet formally recognize one s sexual orientation or gender identity as a protected classification for purposes of anchoring a discrimination claim, recent developments show that this may not be the case for long. Over the last couple years, courts and the EEOC have extended existing protection against discrimination based upon gender stereotyping to discrimination based on sexual orientation and gender identity. In late 2011, the Eleventh Circuit did so in Glenn v. Brumby, as addressed below. Shortly thereafter, in April 2012, the EEOC cited Brumby in its decision in Macy v. Holder, Appeal No , Agency No. ATF (EEOC Apr. 20, 2012). Mia Macy was a transgender woman who received verbal promises of a job offer from a crime laboratory, but the offer was rescinded shortly after she notified the lab that she was preparing to transition from a male to a female. After the EEOC initially refused to process the case, on appeal, the EEOC decided that when an employer discriminates against someone because the person is transgender, the employer has engaged in disparate treatment related to the sex of the victim. This decision seems to state that the EEOC will consider discrimination claims against transgender employees and applicants and may even take action itself to sue employers who discriminate on those grounds. 2. Human Rights Campaign, Laws_and_Policies.pdf. 200

13 Gender/Sexual Orientation Discrimination/Harassment 3:2.2 Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011): The Eleventh Circuit found in favor of a transgender worker who was terminated after informing his supervisor that he intended to undergo gender reassignment surgery. Vandiver Elizabeth Glenn worked in the Office of Legislative Counsel for the Georgia General Assembly. Glenn alleged discrimination in violation of the Fourteenth Amendment s Equal Protection Clause for his termination that resulted from informing his supervisor of his intent to have surgery to become a woman. After informing his supervisor of his upcoming surgery, the head of the office, Sewell Brumby, terminated Glenn because the transition was inappropriate and would make... coworkers uncomfortable. Id. at However, he did not explain at that time why he felt co-workers would feel uncomfortable. Glenn claimed discrimination based upon her sex, and in particular, her failure to conform to sex stereotypes as well as discrimination based upon her medical condition, namely, gender identity disorder. Id. The district court granted summary judgment in favor of Glenn on her sex discrimination claim, and in favor of defendant as to Glenn s medical discrimination claim. On appeal, the Eleventh Circuit recognized that discrimination toward transgender persons premised upon one s failure to conform to gender norms is sex discrimination whether it s described as being on the basis of sex or gender. Id. at The court in turn held that the Equal Protection Clause protects transgender and transsexual employees from termination based upon their failure to conform to a gender stereotype. In reviewing Glenn s termination, the court applied a heightened scrutiny analysis. First, the court held that Brumby acted on the basis of Glenn s gender-nonconformity. Id. at The court recognized that Brumby s comments that he terminated Glenn based on the sheer fact of the transition were sufficient direct evidence of Title VII discrimination if it had been alleged. Id. at However, Glenn only sought declaratory and injunctive relief for a violation of the Equal Protection Clause of the Fourteenth Amendment. As a result, the analysis required an additional component of determining if a sufficiently important governmental interest existed for Brumby s discriminatory conduct. Id. at 1320 (citations omitted). Applying heightened scrutiny, the court held that Brumby s given reason for terminating Glenn other women s concern for Glenn s use of the restroom was not a sufficiently important governmental interest for his decision. Id. at The court held that Brumby s concern about lawsuits from other women as a result of Glenn s use of the restrooms was speculative, particularly in light of the fact that the office had single-occupancy restrooms. Id. The appellate court then affirmed entry of summary judgment in favor of Glenn. 201

14 3:2.2 EMPLOYMENT LAW YEARBOOK 2013 Gilbert v. Country Music Ass n, Inc., 432 F. App x 516 (6th Cir. 2011): The Sixth Circuit upheld a district court s dismissal of the plaintiff s Title VII sexual discrimination claims because Title VII does not prohibit sexual orientation discrimination and the plaintiff did not otherwise plead a claim of sexual discrimination. 3 Marty Gilbert, an openly gay man, worked as a theatre professional for various awards shows and during one show was called faggot by a fellow union member, Milton Jones, who also threatened to stab him. Jones had made such threats to homosexuals previously. Gilbert complained of Jones conduct to the local union which resulted in Gilbert s loss of referrals to future jobs. Gilbert complained again to the union about not referring him to work at the 2008 CMA Awards which resulted in charges being filed by the union and Gilbert s suspension for six months resulting in his future loss of job referrals. Gilbert filed suit alleging retaliation and discrimination under Tennessee law, as well as claims of interference with employment opportunities, breach of the duty of fair representation and breach of a labor agreement, but withheld Title VII claims until his receipt of right to sue letters from the EEOC. Upon receipt of the letters, Gilbert moved to amend his complaint, but his motion was denied and his other claims were dismissed after the defendants filed motions to dismiss. Gilbert appealed the dismissal of his retaliation and discrimination claims. The court of appeals noted that retaliation and discrimination laws under Tennessee law and Title VII are analyzed in the same manner. The court then noted that sexual orientation is not protected by such laws, but gender stereotyping is a prohibited form of sexual discrimination under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Finding that Gilbert, despite being openly gay, did not plead facts that he was targeted because of his appearance or mannerisms, id. at 520, the court affirmed the dismissal of his discrimination claim. The court also dismissed Gilbert s retaliation claims because Gilbert s reporting of alleged discrimination based upon his sexual orientation did not concern the reporting of a prohibited employment practice. Gilbert alleged that the union was aware of his homosexuality when he reported Jones conduct and the union thereafter acted adversely against him based upon his sexual orientation. However, because discrimination based upon sexual orientation is not prohibited by federal law, the court held that Jones could not state a claim of retaliation based upon the reporting of such discrimination. 3. Although unpublished, this case has been included for illustrative purposes. 202

15 Gender/Sexual Orientation Discrimination/Harassment 3:2.3 3:2.3 Pregnancy Discrimination and Nursing Mother Laws [A] Pregnancy Discrimination Act The Pregnancy Discrimination Act (PDA) was enacted by Congress in 1978 as an amendment to Title VII to clarify that Title VII s prohibition against sex discrimination includes discrimination based on pregnancy. The PDA requires equal treatment of women affected by pregnancy, childbirth, or related medical conditions in all aspects of employment. The Act bars employers from treating women who are pregnant differently from others who are similarly able or unable to work. Because the PDA was enacted to extend Title VII s protections, courts analyze pregnancy discrimination claims in the same manner as Title VII sex discrimination claims. According to the EEOC, an employer cannot refuse to hire a pregnant woman because of her pregnancy, because of pregnancy- or childbirth-related medical conditions, or because of the prejudices of co-workers, clients, or customers. 4 An employer may not single out pregnancy-related conditions for special procedures to determine an employee s ability to work. However, if an employer requires its employees to submit a doctor s statement concerning their inability to work before granting leave or paying sick benefits, the employer may require employees affected by pregnancy-related conditions to submit such statements. If an employee is temporarily unable to perform her job due to pregnancy, the employer must treat her in the same way the employer would treat any other temporarily disabled employee. For example, if the employer allows temporarily disabled employees to modify tasks, perform alternative assignments, and take disability leave or leave without pay, the employer also must allow an employee who is temporarily disabled due to pregnancy to do the same. Although the PDA affords pregnant women the same protections as disabled individuals under the ADA, legislatures have recently sought to ensure these protections are codified by statute. To this end, in September 2012, Senators Bob Casey (D-PA) and Jeanne Shaheen (D-NH) introduced the Pregnant Workers Fairness Act, S. 3565, 112th Cong. (2012) (PWFA). The PWFA would establish clear statutory authority that employers must provide reasonable accommodations to pregnant employees. This bill is currently in committee. Pregnant employees must be permitted to work as long as they are able to perform their jobs. If an employee has been absent from work as a result of a 4. See 203

16 3:2.3 EMPLOYMENT LAW YEARBOOK 2013 pregnancy-related condition and recovers, her employer may not require her to remain on leave until the baby s birth. An employer also may not have a rule that prohibits an employee from returning to work for a predetermined length of time after childbirth. Employers must hold open a job for a pregnancy-related absence the same length of time jobs are held open for employees on sick or disability leave. Any health insurance provided by an employer must cover expenses for pregnancy-related conditions on the same basis as costs for other medical conditions. Health insurance for expenses arising from abortion is not required, except where the life of the mother is endangered. Pregnancy-related expenses should be reimbursed exactly as those incurred for other medical conditions, whether payment is on a fixed basis or a percentage of reasonable-and-customary-charge basis. The amounts payable by the insurance provider can be limited only to the same extent as amounts payable for other conditions. No additional, increased, or larger deductible can be imposed. Employers must provide the same level of health benefits for spouses of male employees as they do for spouses of female employees. Pregnancy-related benefits cannot be limited to married employees. In an all-female workforce or job classification, benefits must be provided for pregnancy-related conditions if benefits are provided for other medical conditions. If an employer provides any benefits to workers on leave, the employer must provide the same benefits for those on leave for pregnancy-related conditions. Employees with pregnancy-related disabilities must be treated the same as other temporarily disabled employees for accrual and crediting of seniority, vacation calculation, pay increases, and temporary disability benefits. It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on pregnancy or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under Title VII. The EEOC reports that in fiscal year 2011 it received 5,797 pregnancy discrimination complaints. This reflects the beginning of a trend of a slight decline in the number of complaints in recent years from 6,285 in 2008 to 6,196 in 2009 and to 6,119 in The number of resolutions of pregnancy discrimination charges has climbed steadily in recent years from 5,292 in 2008 to 5,594 in 2009 to 6,293 in 2010 and finally to 6,482 in

17 Gender/Sexual Orientation Discrimination/Harassment 3:2.3 Serednyj v. Beverly Healthcare LLC, 656 F.3d 540 (7th Cir. 2011): The Seventh Circuit affirmed summary judgment for an employer holding that its policy that provided light-duty work accommodations for workrelated injuries only did not violate the Pregnancy Discrimination Act (PDA) because it treated pregnant and non-pregnant employees alike. Beverly Healthcare ( Beverly ) employed Victoria Serednyj as Activity Director from August 2006 to March As Activity Director, Serednyj was responsible for planning, implementing, and participating in morning and/or afternoon activities for residents at a nursing home facility. She also attended morning meetings, conducted exercise classes, developed a monthly calendar, shopped for activities, set up and prepared for activities, assisted residents to and from activities, and planned activities, including bingo, arts and crafts, cooking, and excursions outside the facility. In addition, Serednyj supervised an assistant activity director who assisted her with all of her job functions, conducted evening activities, and worked on Serednyj s off days. Serednyj also was required to engage in some physically strenuous functions. Other Beverly employees voluntarily assisted Serednyj with these functions. On December 14, 2006, Serednyj learned she was pregnant, but suffered a miscarriage days later. On January 7, 2007, she learned she was pregnant again. Serednyj s immediate supervisor, Dawn Mount, congratulated Serednyj on her pregnancy, and Serednyj continued to perform all of her required duties and to work her regular schedule throughout January and February At the end of February 2007, Serednyj began to experience complications with her pregnancy. After going to the hospital, Serednyj was instructed not to perform strenuous activities. Serednyj provided Mount with a doctor s note confirming these work restrictions. The restrictions imposed upon Serednyj essentially meant that she could not set up and move tables for activities in the nursing home, push patients in their wheel chairs, or decorate and maintain the activity calendar. Serednyj requested to be excused from these activities. Mount explained Beverly s modified work policy to Serednyj and informed her that she could not return to work until her doctor released her back to full duty. That modified work policy essentially stated that Beverly did not provide light duty to employees for non-work-related disabilities. Mount also informed Serednyj that she had not been employed long enough to qualify for FMLA leave. Serednyj then saw her regular physician, who stated in a note that he faxed to Mount that he could not give his permission for Serednyj to continue working in any capacity. After some back-and-forth communications between Mount and Serednyj s physician, Mount informed Serednyj that Mount would have to let her go if she could not return to work without restrictions on 205

18 3:2.3 EMPLOYMENT LAW YEARBOOK 2013 March 14, Serednyj did not return to work at the nursing home and on April 10, 2007, Beverly filled out an Earning Information Request form for Serednyj for Indiana state welfare. Beverly indicated on the form that Serednyj was fired from her job. Serednyj thereafter filed suit. In her lawsuit, Serednyj alleged gender discrimination as well as pregnancy discrimination under the Pregnancy Discrimination Act. The trial court granted summary judgment in favor of Beverly and Serednyj appealed. In reviewing Serednyj s claim for pregnancy discrimination, the Seventh Circuit pointed out that the Pregnancy Discrimination Act creates no new rights or remedies, but clarifies the scope of Title VII by recognizing that certain inherently gender-specific characteristics may not form a basis for disparate treatment of employees. The court then noted that, in proving her claims, a plaintiff can do so either through a direct method of proof or through an indirect, burden-shifting approach. Under the direct method according to the court, a plaintiff must show either through direct or circumstantial evidence that the employer s decision to take an adverse job action against her was motivated by an impermissible purpose, such as sex. The appellate court pointed out that the Pregnancy Discrimination Act requires that an employer ignore a female employee s pregnancy and treat that employee the same as it would have if she were not pregnant. In the context of this case, the court stated that this means that an employer is not required to provide an accommodation to a pregnant employee unless it provides the same accommodation to its similarly situated non-pregnant employees. The court then rejected Serednyj s arguments that Beverly s modified work policy was direct evidence of discrimination because the policy in fact treated non-pregnant employees the same as pregnant employees both were denied the accommodation of light-duty work for non-work-related injuries. The court then turned to Serednyj s assertion that she had circumstantial evidence supporting a direct case of discrimination. In this regard, Serednyj pointed to evidence that Beverly employees had assisted Serednyj when she was required to perform physically strenuous work. The appellate court rejected this argument pointing out that a request for an accommodation is materially different from a request for assistance. The assistance Serednyj received from her co-workers before she became pregnant was, according to the court, completely voluntary and given in the spirit of teamwork. If Beverly were to grant Serednyj s request for accommodation, however, Serednyj s job duties would be formally modified to light-duty work and the assistance given by her co-workers would be obligatory. The court also rejected Serednyj s arguments insofar as she pointed to her job description, which did not list all alleged essential functions under the heading Essential Functions. The court of appeals held that whether a requirement is listed 206

19 Gender/Sexual Orientation Discrimination/Harassment 3:2.3 under one heading or another is not evidence that the physical requirements for a job were essential, or not. Finally, the Seventh Circuit considered Serednyj s claims in light of using the indirect, burden-shifting approach to frame her case. The court rejected Serednyj s arguments in this regard because Serednyj could not identify any similarly situated non-pregnant employee who had been treated more favorably than her. The court then affirmed the district court s grant of summary judgment on Serednyj s gender and pregnancy discrimination claims. [B] Protections for Nursing Mothers In recent years, nursing mothers have seen an increased recognition and protection of their choice to breastfeed their children. On March 23, 2010, President Obama signed into law the Patient Protection and Affordable Care Act, Pub. L. No (2010). Within this legislation is section 4207, entitled Reasonable Break Time for Nursing Mothers, which took effect immediately and amended section 7 of the FLSA. See 29 U.S.C. 207(r). The Institute for Women s Policy Research has predicted that from 2010 until 2016 an additional one million mothers will benefit from the breastfeeding provisions in this act. 5 Section 207(r) states that an employer shall provide a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child s birth each such time such employee has need to express the milk.... Id. The legislation goes on to require employers to provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public so that the nursing mother may express the milk in private. Id. The only exclusion is for employers with fewer than fifty employees who can show that providing the break time would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer s business. Id. On July 15, 2010, the DOL released Fact Sheet #73: Break Time for Nursing Mothers under the FLSA, which interpreted the guidelines set forth in section 207(r). However, the Fact Sheet offered little clarification as to the meaning of reasonable, as in employers are required to provide a reasonable break time for an employee nursing to express milk. U.S. Department of Labor, Wage and Hour Division, Fact Sheet #73: Break Time for Nursing Mothers under the FLSA (July 15, 2010, rev. Dec. 2010), available at Instead, the Fact Sheet 5. See INSTITUTE FOR WOMEN S POLICY RESEARCH, 207

20 3:2.3 EMPLOYMENT LAW YEARBOOK 2013 simply provides that [t]he frequency of breaks needed to express milk as well as the duration of each break will likely vary. Id. The Fact Sheet explains that exempt employees are not covered by FLSA section 7, and thus employers do not have to provide such breaks, but that employers may be obligated to provide such breaks under state law. This would change, should the Breastfeeding Promotion Act of 2011 (discussed below) be enacted. Additionally, under the DOL s guidelines, employers are not required to compensate employees for breaks taken for the purpose of expressing milk, but employers who already provide compensated breaks must compensate an employee who uses those breaks to express milk in the same manner that other employees are compensated for their breaks. Id. Finally, the Fact Sheet attempts to define the requirement that an employer provide a place that is shielded from view. The Fact Sheet states that an area complies with section 7 if it is a space temporarily created or converted into a space for expressing milk or made available when needed by the nursing mother, but that it need not be dedicated to the needs of nursing mothers. Id. Though the DOL guidelines attempt to clarify how the break time provisions operate within the workplace, the guidelines do not resolve the issue of what a reasonable break time is or whether there is a limit to the number of breaks an employee may take. While the new FLSA requirements do not preempt the law of twenty-four states now in effect affording greater, but varying degrees of protection to nursing mothers, employers need further guidance to understand how to comply with these amendments to the FLSA. On August 1, 2011, the Breastfeeding Promotion Act of 2011 was introduced in the House of Representatives and the Senate. See H.R. 2758, 112th Cong. (2011); S. 1463, 112th Cong. (2011). The act would amend section 701(k) of the Civil Rights Act of 1964 (42 U.S.C. 2000k-1) to insert the phrase including lactation after the term childbirth already in that section. It would also define lactation as either breastfeeding a child or expressing milk from one s breast. Finally, it would require application of the recently enacted 29 U.S.C. 207(r) (relating to providing a reasonable, but uncompensated break time and space for nursing mothers) to FLSA exempt employees. As of the time of publication, these bills were still undergoing review in committee. On August 1, 2011, the Department of Health and Human Services issued guidelines pursuant to the Patient Protection and Affordable Care Act that will require insurers to provide breastfeeding supplies and counseling at no cost See Affordable Care Act Rules on Expanding Access to Preventive Services for Women, U.S. Dep t of Health & Human Services (Aug. 1, 2011), 208