Employment Discrimination

October 24, 2014

What Duty Does an Employer Have to Protect Employees from Infectious Diseases?

Concern over infectious diseases has captured the imagination of much of the country in recent months, particularly with regard to Ebola virus disease (EVD). Only a handful of EVD cases have been reported in the U.S., and health officials and experts have repeatedly stated that the disease is unlikely to pose a serious threat to the country. Other diseases, such as influenza, pose a far greater threat in the U.S. but generally receive less media attention. Regardless, since a disease outbreak is on the nation’s mind, it raises the question of what legal duties employers owe to protect their employees from infectious diseases. The answer depends largely on the type of employer.

The first case of EVD in the U.S. was diagnosed at a hospital in Dallas, Texas in September 2014. That patient has since died, and two nurses who treated him were subsequently diagnosed with EVD. The Centers for Disease Control and Prevention (CDC) is investigating reports that health care workers treated the initial EVD patient for about three days, from September 28 to September 30, without wearing protective equipment. As many as 70 workers were exposed to the patient during that time, but only the two nurses have tested positive for the disease. EVD is not airborne and can only be transmitted through direct contact with an infected person’s blood or other bodily fluids.

The actions and preparedness of the Dallas hospital, including an alleged lack of safety protocols, drew a harsh rebuke from the hospital’s nurses. The incident has raised concerns about whether the hospital took adequate precautions to protect its workers from infection. Laws like the Occupational Safety and Health Act (OSHA), 29 U.S.C. § 651 et seq., require employers to provide reasonable protection against occupational diseases. This could apply to workers in health care and other fields where ordinary job duties make exposure to infectious diseases likely. See American Dental Ass’n v. Martin, 984 F.2d 823 (7th Cir. 1993).
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October 16, 2014

EEOC Targets Auto Supply Chain in Race and Disability Discrimination Claims

by Resnick Law Group, P.C.

A pair of lawsuits brought by the Equal Employment Opportunity Commission (EEOC) against a company that operates a nationwide chain of auto supply stores alleges race and disability discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Americans with Disabilities Act (ADA) of 1990, 42 U.S.C. § 12101 et seq. One case involves the transfer of an employee from one store to another as part of an alleged effort to reduce the number of black employees at the first store. The other case alleges failure to provide reasonable accommodations for two employees with disabilities, and the termination of one of them after making a complaint.

The complainant in the race discrimination case worked at a retail location in southwest Chicago. The employer “involuntarily transferred” him to a store location on the far south side of the city, allegedly “as part of an effort to eliminate or limit the number of black employees” at the southwest Chicago store. EEOC v. AutoZone, Inc. (“AutoZone I“), No. 1:14-cv-05579, complaint at 3 (N.D. Ill., Jul. 22, 2014). The company allegedly believed that the southwest Chicago store’s customers “preferred to be served by non-black, Hispanic employees.” Id. The complainant objected to the transfer to the south Chicago store and ultimately refused to agree to it. At that point, the defendant terminated his employment.

The EEOC alleges that the defendant’s actions “deprive or tend to deprive [the complainant] and other black individuals of employment opportunities because of their race.” Id. at 3-4. The lawsuit asserts a cause of action for race discrimination, 42 U.S.C. § 2000e-2(a)(2). It seeks a permanent injunction against further employment practices that discriminate based on race, new policies and training programs geared towards alleviating past and preventing future race discrimination, and monetary damages paid to the complainant.
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October 3, 2014

Question of Whether EEOC Must Make a Good Faith Effort to Conciliate Will Go to Supreme Court

by Resnick Law Group, P.C.

Title VII of the Civil Rights Act of 1964 requires employees to file a complaint with the Equal Employment Opportunity Commission (EEOC). The EEOC must make an effort to resolve the dispute with the employer before it may file suit on behalf of the complainant, or authorize the complainant to do so directly. 42 U.S.C. § 2000e-5(b), (f). Federal circuit courts of appeals have reached different decisions regarding whether a defendant may raise “failure to conciliate” as an affirmative defense. The Supreme Court granted certiorari to a case that rejected an employer’s attempt to assert this defense, and it will hear the matter during the October 2014 session. EEOC v. Mach Mining, LLC (Mach I), No. 11-cv-879, mem. order (S.D. Ill., Jan. 28, 2013); rev’d EEOC v. Mach Mining, LLC (Mach II), 738 F.3d 171 (7th Cir. 2013); cert. granted Mach Mining v. LLC (Mach III), No. 13-1019 (Sup. Ct., Jun. 30, 2014).

The EEOC filed suit for alleged sex discrimination against Mach Mining, on behalf of the complainant and a class of female job applicants. The lawsuit alleged that the company “had never hired a single female for a mining-related position” and “did not even have a women’s bathroom on its mining premises.” Mach I, mem. order at 1. It further claimed that the company’s policy of hiring new employees based on referrals from current employees caused a disparate impact on women in violation of Title VII. The EEOC filed a motion for summary judgment on the defendant’s affirmative defense, which claimed that the EEOC had failed to make a good-faith effort at conciliation before filing suit.

The district court noted that several federal circuit courts of appeal had ruled that Title VII allows appellate courts to review the EEOC’s efforts at conciliation. The usual remedy for failure to conciliate would be to stay the proceedings for further conciliation. The Seventh Circuit had not considered the issue at that time. New York courts are bound by cases like EEOC v. Sears, Roebuck & Co., 650 F.2d 14, 18-19 (2nd Cir. 1981). The Third Circuit Court of Appeals, which includes New Jersey, has not ruled on the issue.
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September 24, 2014

EEOC Alleges in Religious Discrimination Lawsuit that Employer Required Employees to Participate in Religious Activities

by Resnick Law Group, P.C.

A Long Island company unlawfully discriminated against its employees on the basis of religion, according to a lawsuit filed by the Equal Employment Opportunity Commission (EEOC). EEOC v. United Health Programs of America, et al, No. 1:14-cv-03673, complaint (E.D.N.Y., Jun. 11, 2014). The employer allegedly required employees to participate in religious activities that were not related to their employment duties, and terminated those who refused to fully participate. The EEOC is claiming violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The case raises important questions of what constitutes “religious practices” under Title VII.

A family member of the defendant’s owner created a “belief system” called “Onionhead.” United Health, complaint at 3. UHP employees are allegedly expected to participate in daily activities related to Onionhead, such as “praying, reading spiritual texts, [and] discussing personal matters with colleagues and management.” Id. The defendant’s owner’s aunt, identified in the EEOC’s complaint as “Denali,” led the Onionhead activities and made monthly visits to the workplace, at which time employees were allegedly required to meet with her individually and participate in group sessions.

Numerous employees did not want to participate in Onionhead activities and “experienced these practices as both religious and mandatory.” Id. at 4. Two employees identified in the EEOC’s complaint, both of whom worked as managers, objected to the Onionhead activities in 2010. They were both allegedly moved from offices to “the open area on the customer service floor,” id. at 5, and their responsibilities were changed from managerial duties to answering phones. The defendants terminated both employees within days.
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September 16, 2014

Hundreds of Cities Enact Ordinances Prohibiting Sexual Orientation Employment Discrimination When States Fail to Take Action

by Resnick Law Group, P.C.

About half of all U.S. states, including New Jersey, and the District of Columbia have enacted legislation prohibiting employers from discriminating based on sexual orientation. In many states, these laws also protect gender identity and expression. Federal law still does not provide explicit protection in these areas. City and county governments have stepped up in many of the states that lack statewide protection. Some city ordinances only apply to public employment, and some only cover sexual orientation. Many, however, apply to both public and private employment and cover gender identity as well as sexual orientation.

A rather dramatic fight over the issue occurred recently in Pocatello, Idaho, where voters narrowly defeated a proposal to repeal an ordinance that the voters passed last year. The ordinance went on to survive a court challenge and a recount.

At least eight cities in Idaho have enacted non-discrimination ordinances that include both sexual orientation and gender identity in both public and private employment. The Human Rights Campaign lists five: Boise, Coeur d’Alene, Ketchum, Moscow, and Sandpoint. Idaho Falls passed a non-discrimination ordinance in September 2013, and Victor, a small town near the Wyoming state line, enacted one in June 2014. Pocatello’s ordinance, described in more detail below, passed two public votes in the space of one year. At least two Idaho cities, Meridian and Nampa, prohibit discrimination based on sexual orientation and gender identity in public employment only. Lewiston and Twin Falls limit protection to discrimination based on sexual orientation in public employment.

Voters in Pocatello, a town of just over 50,000 in the southeast part of the state, passed the ordinance by a popular vote in June 2013. It amended the municipal code to include sexual orientation and gender identity in the list of protected classes, finding that “discrimination on the basis of sexual orientation and gender identity/expression must be addressed, and appropriate legislation enacted.” Pocatello City Code § 9.36.010(A).
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September 12, 2014

Former Sales Executive Obtains $11.6 Million Verdict in Wrongful Termination Lawsuit

by Resnick Law Group, P.C.

A former sales executive obtained a substantial verdict in May 2014 in a lawsuit against Microsoft, which accused the software company and a consultant of employment discrimination, sexual harassment, retaliation, and defamation. Mercieca v. Rummel, et al, No. D-1-GN-11-001030, third am. pet. (Tex. Dist. Ct., Travis Co., Apr. 12, 2013). He alleged a conspiracy to make false allegations of sexual harassment against him, which resulted in a hostile work environment and discriminatory treatment. The company then retaliated against him, eventually constructively terminating him, after he formally complained about the hostile work environment.

The plaintiff worked for Microsoft for 17 years in offices around the world. At the time of the events described in the lawsuit, he was a Senior Sales Executive in the company’s Austin, Texas office. He claimed that he had an excellent reputation within the company and had received multiple awards for sales performance, customer service, and service to the company.

In the fall of 2007, Lori Aulds was named Regional Sales Director, which made her the plaintiff’s direct supervisor. The two of them, according to the plaintiff, had a sexual relationship that ended several years prior to her promotion. She allegedly remarked about her current relationships to the plaintiff and tried to get him involved in disputes with her new significant other, despite his insistence that it made him uncomfortable.
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September 10, 2014

City Ordinances Limit Employers’ Ability to Refuse to Hire Applicants Based on Criminal History

by Resnick Law Group, P.C.

As many as one in four Americans has a criminal record that could turn up during a job search. Lack of employment opportunities is a substantial factor in the difficulty people with criminal history face, including an estimated recidivism rate of 70 percent. We, as a society, are nowhere near consensus on whether the primary purpose of our criminal justice system is punishment or rehabilitation. What seems clear, however, is that barriers preventing people with criminal records from getting jobs, particularly when an applicant’s criminal record has no rational relationship to the job in question, make reentry into society all the more difficult. Cities and states around the country, including two New Jersey cities, have enacted laws limiting when employers may ask about or consider criminal history.

The “Ban the Box” campaign promotes laws that prohibit employers from asking about criminal history during the initial phase of the job application process. The campaign’s name refers to the checkbox for criminal history found on many job applications. Federal anti-discrimination law does not expressly prohibit discrimination based on criminal history, and consideration of prior convictions might be necessary for certain jobs. The Equal Employment Opportunity Commission (EEOC) has held, however, that use of criminal history in employment decisions may violate Title VII of the Civil Rights Act of 1964 in other ways, such as if it results in disparate treatment of employees or job applicants based on race or other protected categories.

The first statewide law prohibiting employment discrimination based on criminal history was adopted in Hawaii. An employer may ask about criminal history if it “bears a rational relationship to the duties and responsibilities of the position,” but only after extending a “conditional offer of employment.” HI Rev. Stat. § 378-2.5. As of May 2014, 11 more states have enacted similar laws. At least 66 local jurisdictions have also enacted ban-the-box ordinances, including New Jersey’s own Newark and Atlantic City.
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July 22, 2014

Wrongful Termination May Expose Employers to Defamation Claims

by Resnick Law Group, P.C.

Federal, state, and local employment statutes prohibit employers from discriminating based on certain protected categories, such as race, sex, or religion. In some situations, an employer may want to fire an employee, but lacks a non-discriminatory basis for doing so. If that employer makes a false statement regarding the employee as a pretext or justification for termination, the employer could be liable for defamation if the statement was made to the public. Defamation law allows an individual to recover damages for false statements, made with knowledge of their falsity, that cause actual harm.

In both New Jersey and New York, the elements of a defamation claim are (1) a false statement, (2) unprivileged or unauthorized publication to a third party, (3) negligence with regard to the statement’s falsity, and (4) actual harm to the subject of the statement. Lee v. Bankers Trust Co., 166 F.3d 540, 546 (2d. Cir. 1999); Dillon v. City of New York, 261 A.2d 34, 38 (NY App. 1999). “Publication” may include written publication, known as libel, or a verbal statement to one or more people other than the subject, known as slander.

New Jersey, along with many other states, follows the “single publication” rule, meaning that a cause of action for defamation begins to accrue when the statement is first published. Barres v. Holt, Rinehart and Winston, Inc., 74 N.J. 461, 462-63 (1977). This rule generally applies to statements published on the internet. Churchill v. New Jersey, 876 A.2d 311, 319 (NJ App. 2005).
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July 15, 2014

Retail Chain Allegedly Fired Gay Male Employees to Cut Costs, According to Lawsuit

by Resnick Law Group, P.C.

A man’s lawsuit against his former employer alleges that the company created multiple pretexts ito justify firing him, and that the company discriminated against him because he is homosexual. Housh v. Home Depot USA, Inc., et al, No. 30-2013-00678843, complaint (Cal. Super. Ct., Orange Co., Oct. 1, 2013). The plaintiff further alleges that the company has sought out pretexts for firing other employees who, like the plaintiff, are older gay men. He claims that the company is acting out of concern for supposedly increased costs associated with such employees. The lawsuit asserts a total of 17 causes of action under common law and state statutes, including age discrimination, gender discrimination, wrongful termination, sexual harassment, and retaliation.

The plaintiff began working for the defendant, Home Depot, in 1987, and worked continuously for the company at several California locations for more than 25 years. He states in his complaint that management used a “Value Wheel” to protect employees from discrimination and other improper treatment. Id. at 5. He alleges that the “Value Wheel” and assorted representations made by management in connection with it constituted promises made to induce him and other employees to continue working for the company, including non-discrimination, merit-based pay and promotion, adequate benefits to prepare for retirement, and no retaliation for reporting “illegal and/or improper conduct.” Id. at 5-6. The company largely followed these promises, the plaintiff claims, until the 2008 recession.

The real estate recession that began in 2008, according to the plaintiff, had a serious impact on the company’s profits and stock price. The plaintiff alleges that the company “set a quota of employees that had to be terminated.” Id. at 8. Managers were allegedly instructed to target employees in three categories for termination: “Older/Higher Paid,” “Gay Males,” and “employees who disclosed improper or illegal conduct.” Id. The company’s management allegedly believed that benefits for gay male employees were more expensive “because of the HIV and AIDS virus.” Id. The plaintiff also claims that the company believed that the passage of California’s Domestic Partnership Equality Act in 2011, which requires employers to provide certain forms of coverage for domestic partners, would be financially damaging.
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July 10, 2014

Professor, After Denial of Tenure, Alleges Retaliation for Speaking Out in Support of Students’ Campaign Against Campus Sexual Assault

by Resnick Law Group, P.C.

An anthropology professor at Harvard University, Kimberly Theidon, has filed a complaint with the Massachusetts Commission Against Discrimination (MCAD), alleging that the university unlawfully retaliated against her by denying her tenure. She has been outspoken about several issues affecting the department and the student body, particularly sexual assault and gender parity, despite alleged warnings from colleagues. Her MCAD complaint alleges that her academic credentials are equal to or stronger than those of tenured professors in the department, and that the denial of tenure was directly related to her advocacy.

Theidon joined the Harvard faculty in 2004. She is a medical anthropologist who focuses on human rights and postwar issues in Latin America. Her book, Entre Prójimos, inspired a 2009 Academy Award-nominated Peruvian film, The Milk of Sorrow. She has written, edited, or contributed to about 70 published works, mostly between 1995 and 2008. She received a teaching appointment in 2008 and has taught 12 courses since then. In addition to her academic work, Theidon has challenged what she describes as disparate treatment of men and women in her department, including gaps in pay. She claims she was discouraged from doing so by a colleague, who would go on to chair her tenure committee, who allegedly told her to be a “dutiful daughter.”

In 2013, a mostly anonymous group of Harvard students, who were the victims of sexual assault, challenged the university’s response to sexual assault on campus. Theidon spoke out in support of the students, particularly in comments to an article they wrote in the Harvard Crimson newspaper. She claims that the same colleague who told her to be a “dutiful daughter” advised her to keep quiet on this issue as well, specifically mentioning her pending tenure. The tenure committee denied her tenure in May 2013.
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