Employment Discrimination

May 5, 2015

Supreme Court Rules in Favor of Pregnant Employee Who Claims She Was Denied an Accommodation for Lifting Restrictions

A delivery driver for United Parcel Service (UPS) filed suit against her employer after it allegedly refused to assign her to light duty due to pregnancy-related lifting restrictions. She claimed that the company violated her rights under Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (PDA) of 1978, which defines discrimination on the basis of pregnancy as a form of unlawful sex discrimination. 42 U.S.C. § 2000e(k). The Fourth Circuit Court of Appeals affirmed a U.S. district judge’s order dismissing the lawsuit. Young v. United Parcel Service (“Young I“), 707 F.3d 437 (4th Cir. 2013). The Supreme Court vacated this ruling and remanded the case to the trial court, finding that the plaintiff was entitled to trial on the question of whether she suffered unlawful discrimination. Young v. United Parcel Service (“Young II“), 575 U.S. ___ (2015). While the case was pending, UPS announced a reversal of its policy on light duty for pregnant employees.

The plaintiff worked as a part-time delivery driver. The job description required the ability to lift packages weighing up to 70 pounds. When the plaintiff became pregnant, her doctor told her that she should not lift more than 20 pounds during the first 20 weeks, and no more than 10 pounds after that. The defendant refused to put her on light duty, despite, according to the plaintiff, accommodating other employees with similar lifting restrictions. The plaintiff went on unpaid leave, which resulted in the loss of her employee health insurance.

The defendant’s policy was to provide light duty for employees who were injured on the job, were entitled to an accommodation under the Americans with Disabilities Act, or had lost their certification from the Department of Transportation. Pregnancy did not fit into any of these categories, according to the defendant. The Fourth Circuit held that this policy did not violate the PDA because the plaintiff’s pregnancy was unrelated to her job, the policy only applied to job-related conditions, and it treated “pregnant workers and nonpregnant workers alike.” Young I, 707 F.3d at 449.
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April 17, 2015

Federal Race Discrimination Lawsuit Accused Cosmetics Company CEO of a Wide Range of Derogatory Statements

by Resnick Law Group, P.C.

A federal lawsuit filed by a former cosmetics company employee, which has since been settled and dismissed, raised claims of race, ethnicity, and national origin discrimination, retaliation, and other claims. Meyers v. Revlon, Inc., et al, No. 1:14-cv-10213, complaint (S.D.N.Y., Dec. 30, 2014). The plaintiff accused the chief executive officer (CEO) of numerous derogatory statements, and of retaliation for noting and reporting safety and regulatory concerns. The lawsuit asserted causes of action under federal, state, and city law, including New Jersey’s whistleblower protection statute.

According to his complaint, the plaintiff worked in the cosmetics industry for 35 years, rising from an entry-level position to the defendant’s Chief Science Officer. He took that position in 2010, and he stated that “his career progressed without impediment until November 2013.” Id. at 1. The defendant acquired Colomer, a beauty care company based in Spain, in August 2013. In November 2013, it named Colomer’s CEO as its new CEO and President.

The plaintiff claimed that he played a key role in integrating the two companies, which included reviewing Colomer’s regulatory compliance. He reported concerns about Colomer’s facility in Barcelona to the new CEO. He claimed that the CEO became angry and told him not to discuss regulatory or safety matters with him in order to maintain “plausible deniability.” Id. at 15. From then on, the CEO allegedly harassed and belittled the plaintiff, often in front of colleagues.
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April 2, 2015

Lawsuit Claims Gender Identity Discrimination under Title VII

by Resnick Law Group, P.C.

A transgender woman’s sex discrimination lawsuit examined the extent of protection, if any, offered for gender identity by federal anti-discrimination law. Jamal v. Saks & Company, No. 4:14-cv-02782, complaint (S.D. Tex., Sep. 30, 2014). Issues relating to transgender persons, generally defined as someone who identifies with a different gender than the one they were assigned at birth, have gained considerable prominence in recent years, particularly with regard to their rights against workplace and public discrimination. New Jersey and other states prohibit employment discrimination based on “gender identity or expression” N.J. Rev. Stat. § 10:5-12(a), but federal anti-discrimination laws do not expressly mention gender identity.

The defendant operates the Saks Fifth Avenue chain of department stores. The plaintiff, a transgender woman, first worked at an outlet store in suburban Houston, Texas until she was transferred to its “full-line store” in Houston. Jamal, complaint at 3. She alleges that the defendant routinely “misgendered” her by referring to her with male pronouns and other indicators, and denying permission to use the women’s restroom. The store manager allegedly requested that she “change her appearance to a more masculine one.” Id. at 5. Managers and fellow employees, the plaintiff claims, routinely harassed and belittled her on the basis of her gender identity. She complained to the EEOC, and was fired ten days later.

The plaintiff sued for wrongful termination, hostile work environment, harassment, and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and Title I of the Civil Rights Act of 1991, 42 U.S.C. § 1981a. The defendant filed a Rule 12(b)(6) motion to dismiss in December 2014 that referred to the plaintiff as “he,” and used the term “[sic]” when quoting portions of the plaintiff’s complaint that used female pronouns. This term is used to indicate that quoted text includes errors or inaccuracies found in the original. The defendant later withdrew its motion, and the parties stipulated a dismissal of the lawsuit in March 2015. The questions it raised still remain, though.
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February 13, 2015

Federal and State Law Prohibits Age Discrimination in Employment, Even in Traditionally “Young” Industries.

by Resnick Law Group, P.C.

In 2007, Facebook founder and CEO Mark Zuckerberg spoke to a group of aspiring entrepreneurs at a startup workshop at Stanford University about “the importance of being young and technical.” Zuckerberg, who was 22 years old at the time, went on to say that “young people are just smarter.” He cited attributes like “simpler lives,” which would allow younger employees to devote more time to their jobs. Age discrimination has long been a serious issue in the technology industry. The question of whether maintaining a young, energetic workforce–at the cost of losing older, more experienced employees–is ultimately to a company’s benefit is something that tech industry analysts can discuss. Refusing to hire someone solely on the basis of his or her age is often against both state and federal law. This problem is not limited to the tech industry but occurs in many industries all over the country. As the tech industry expands into places like New Jersey, however, the way in which some tech companies proudly tout their “youth” bears scrutiny.

Under the federal Age Discrimination in Employment Act (ADEA), employers may not discriminate against employees in hiring, firing, and other terms and conditions of employment based on the person’s age. 29 U.S.C. § 623(a)(1). This includes limiting job openings to a particular age group, either expressly or by using terms like “new or recent graduates preferred.” The ADEA, however, only applies to workers who are at least 40 years old. 29 U.S.C. § 631. It therefore might not prohibit age discrimination based on a determination that a person is too young. New Jersey’s Law Against Discrimination (LAD) also prohibits discrimination on the basis of age. N.J. Rev. Stat. § 10:5-12(a).

The tech industry, in California’s Silicon Valley and elsewhere, appears to value youth as much as, if not more than, the movie industry in Hollywood or the fashion industry in New York City. This has manifested itself in a variety of ways, from a general lack of “graybeards” to awkward work environments for the older tech workers who do manage to find jobs. It also includes multiple instances of overt age discrimination, such as the sort of job listings mentioned earlier that discourage older job seekers, either by directly stating an age limit or using phrases like “Class of 2007 or 2008 preferred.” A job advertisement using that phrase led to a settlement, which did not include any monetary penalties, between Facebook and California employment regulators in 2013.
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February 5, 2015

Researchers Find Evidence of Employment Discrimination When Job Applicants Refer to Religious Affiliations

by Resnick Law Group, P.C.

A group of sociologists has recently published two studies on the effect of religious identifiers on hiring decisions. One study focused on employers in New England, and the other on employers in the American South. Both studies found that résumés and job applications referencing a specific religious affiliation are less likely to receive follow-up action from employers than those that do not mention religion at all. This highlights a difficult aspect of employment anti-discrimination law, which requires proof that an adverse employment action, like refusal to hire, was based on a protected class, like religion. The discrimination uncovered by these studies may not be intentional, and in fact the individuals making these decisions may not even be aware of the disparate treatment, but it still violates state and federal anti-discrimination law.

The researchers sent about 3,000 résumés to employers from “fictitious job applicants” who had recently graduated from college. They randomly modified the résumés “to indicate affiliation in one of seven religious groups or a control group,” typically by mentioning membership in a campus religious organization. The seven religious identifiers were atheist, Catholic, evangelical Christian, Jewish, pagan, Muslim, and a fictitious religious identity called “Wallonian.” Each employer received four résumés with comparable qualifications, which only differed in religious affiliation and minor details. The researchers set up email accounts and telephone numbers for the fictitious job applicants in order to track the responses from the employers.

In the New England study, resumes that mentioned religion received about 25 percent fewer responses from employers. Those that indicated affiliation with Muslim organizations had the lowest response rate, at one-third less than the control group. Applicants identified as atheist, Catholic, or pagan also received a significantly lower response rate. The Southern study had similar results, with evangelical Christians and Wallonians also receiving significantly fewer responses. Jewish applicants were the only ones who showed no significant disadvantage compared to the control group.
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January 27, 2015

New Jersey Federal Court Allows Race, National Origin Discrimination Lawsuit to Proceed

by Resnick Law Group, P.C.

A federal judge in New Jersey recently denied the defendants’ motion to dismiss a lawsuit alleging race and national origin discrimination. A former employee, who worked for nearly two decades as a contract employee for a federal agency, is claiming that the agency wrongfully failed to hire him for a permanent position. Suri v. Fox, et al., No. 1:13-cv-05036, 2nd am. complaint (D.N.J., Apr. 16, 2014). After the defendants moved to dismiss the lawsuit, the court ruled that the plaintiff had made a prima facie case for race and national origin discrimination. This means that the case may proceed, and that the burden shifts to the defendants to show a non-discriminatory basis for their actions.

The plaintiff, who is originally from India, became a U.S. citizen in 1992. He has bachelor’s and master’s degrees in electrical engineering and a master’s degree in environmental engineering. He began working for the Federal Aviation Administration (FAA) as a summer intern in 1995. During the internship, he states that he asked about a permanent position but was told that a hiring freeze prevented the FAA from offering him a permanent job. He accepted a contract position with H-Tec Systems, an FAA contractor, when his internship ended in September 1995. He continued working on site at the FAA’s William J. Hughes Technical Center in Atlantic City, New Jersey for 13 years. In 2008, he took a job with another contractor, EIT, that kept him in the same place.

According to his complaint, the plaintiff worked with FAA employees on a daily basis, had an office cubicle at the FAA facility, and used office equipment, supplies, and furniture provided by the FAA. The details of his employment, including work assignments, discipline, and leave, were under the control of FAA supervisors. He claims that he continued to ask about a permanent position and was still told about a hiring freeze. The supervisor who cited the hiring freeze, however, allegedly hired several Caucasian employees with lesser qualifications than the plaintiff to permanent positions during this time period. At various other times, the plaintiff claims that employees with lesser qualifications and less seniority than him, all Caucasians, were placed in positions over him.
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January 23, 2015

Do Employment Laws Protect Workers from Getting Fired and Other Adverse Actions for Public Statements on Social Media?

by Resnick Law Group, P.C.

Social media has given a platform to nearly anyone with internet access, and many people use that opportunity to share their views with their friends and followers, as well as the general public. Many statements could be considered objectively offensive by modern standards regarding race, gender, and other issues, while others might be more subjective. Some people have faced adverse actions from their employers, including firing, because of statements on politics and other issues made on social media, and other acts outside work. Do state or federal employment laws protect workers engaging in these types of activities? The answer is complicated. Federal law only protects workers in certain specific circumstances, and few state laws address political affiliations or other activities as they pertain to employment.

Two recent incidents demonstrate the potential impact of careless or offensive statements on social media. In December 2013, a public relations director for an internet company sent a tweet just before boarding a plane bound for South Africa. The tweet, a joke referencing the issue of AIDS in Africa, caused such an immediate uproar that she was out of a job before her flight reached its destination. More recently, the communications director for a Republican member of Congress resigned her position after writing a post on Facebook criticizing President Obama’s daughters in terms generally considered offensive.

Some people have chosen to respond to online statements they find egregiously offensive by notifying employers–at least one blog, Racists Getting Fired, chronicles efforts to report racially offensive statements. Most of these types of responses have involved people making statements widely considered to be racist, sexist, or otherwise bigoted or offensive. One concern regarding this practice, according to activist and writer Tressie McMillan Cottom, is that it “sets a terrible precedent of witch-hunts for good people who make a few mistakes.” The door can swing both ways, too, as evidenced by reports that a police officer in St. Louis contacted an employer, in an official capacity, regarding an employee’s tweets that criticized the police department.
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December 23, 2014

Supreme Court Will Consider Case Alleging Religious Discrimination in Employer’s Dress Code

by Resnick Law Group, P.C.

The U.S. Supreme Court will hear the appeal of a religious discrimination lawsuit brought by the Equal Employment Opportunity Commission (EEOC). EEOC v. Abercrombie & Fitch Stores, Inc., No. 14-86. The complainant alleged that the company, a retail clothing chain, refused to hire her because she wears a hijab, the headscarf commonly worn by many Muslim women. The company claimed that the hijab violated its dress code. It argued in court that the complainant never requested a religious accommodation during the job application process, although she wore a hijab to her in-person interview. An unpublished 2013 New Jersey decision addresses a similar religious discrimination claim by a Sikh man.

Abercrombie operates a nationwide chain of retail clothing stores that market a particular style, supported by a comprehensive, and often controversial, “Look Policy” for its employees. The complainant applied for a job at an Abercrombie Kids store in Tulsa, Oklahoma in 2008, when she was 17 years old. She wore a hijab to her interview, where an assistant manager reportedly gave her a good enough score on her style to recommend her for employment. A supervisor allegedly rejected her because the “Look Policy” does not allow employees to wear hats or other head coverings. The supervisor has since claimed to have had no knowledge that the headscarf–which the complainant wore to a job interview with an employer known for its expansive dress code–was worn for religious reasons.

The EEOC investigated her claims of religious discrimination and filed suit in 2009. Abercrombie settled two similar EEOC lawsuits in 2013. One alleged refusal to hire, and the other involved a woman who claimed that the company fired her after a district manager visited the store and disapproved of her hijab. The company paid a total of $71,000 to the two women and agreed to allow female employees to wear hijabs. The Oklahoma case was already pending when the settlement occurred.
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December 10, 2014

Employer Lays Off Worker After Learning About Cancer Diagnosis

by Resnick Law Group, P.C.

In September 2014, the story of an employer who laid off a woman shortly after learning of her cancer diagnosis went “viral,” moving quickly from local to global news coverage. The story highlights an important question for employees and their advocates about how state and federal employment laws protect people when they are diagnosed with cancer or another serious illness. Federal laws like the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA) offer some protection, but they do not apply to many small employers. State laws, such as New Jersey’s Law Against Discrimination (LAD), sometimes offer broader protections.

A local news site in Pennsylvania reported on a woman who notified her employer of about 12 years that she had been diagnosed with cancer. The employer reportedly sent her a handwritten letter informing her that that he was laying her off without pay, noting that she would not be able to fulfill her employment duties while also undergoing cancer treatment. The story took off when a family member posted a copy of the letter to the internet.

The woman has avoided media attention and is reportedly focusing on her treatment. The employer has stated that everyone has misinterpreted the letter, and that he intended to help her by giving her time away from work. Local news reported that he did not contest her unemployment claim, which gives her 26 weeks of benefits. Nothing else has appeared in the news about the story since mid-September.
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November 26, 2014

Drugstore Chain Settles EEOC Disability Discrimination Lawsuit for $180,000

by Resnick Law Group, P.C.

The Equal Employment Opportunity Commission (EEOC) announced this summer that it settled a disability discrimination lawsuit against the drugstore chain Walgreens, which allegedly engaged in wrongful termination based on a health condition. EEOC v. Walgreen Co., No. 3:11-cv-04470, complaint (N.D. Cal., Sep. 8, 2011). The company claimed that the termination was based on “misconduct,” but the court found that misconduct that is directly related to an employee’s disability must be considered in connection to the disability. Shortly after the court denied the defendant’s motion for summary judgment, the parties entered into a consent decree in which the company agreed to various forms of injunctive relief and $180,000 in damages.

The complainant worked for Walgreens for about 18 years. She was diagnosed with Type II diabetes in 1995, after about five years at Walgreens. The company knew about her condition and generally allowed her to have candy in case her blood sugar got too low, to keep insulin in the employee break room, and to take additional breaks to eat or test her blood sugar.

While she was restocking shelves on September 17, 2008, the complainant began experiencing symptoms of low blood sugar, including sweating and shaking. She did not have any candy on her person at the moment. Fearing a hypoglycemic emergency, she took a bag of chips from the cart of items to be restocked and ate some of them. The bag had a retail price of $1.39. She claims that she began to feel better after about 10 minutes and went to the cosmetics counter to pay for the bag of chips. Finding no one there, she put the bag under the register and returned to her restocking duties.
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