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EEOC Identifies LGBT Protection As ‘Emerging Issue’

By Bob Gregg

EEOC Identifies LGBT Protection As 'Emerging Issue'EEOC announces 2013 priorities. The Equal Employment Opportunity Commission (EEOC) has announced its four-year (2013–2016) Strategic Enforcement Plan. The agency plans to devote additional attention to the issues of identifying and eliminating discriminatory recruiting and hiring barriers; enforcing equal-pay laws; protecting immigrant, migrant and other vulnerable workers; preventing harassment; preserving access to the legal system; and addressing “emerging issues.” Emerging issues identified in the plan include the ADA Amendments Act standards, pregnancy accommodation, and coverage of LGBT under Title VII provisions “as they may apply.” This last item recognizes the growing de facto inclusion of LGBT discrimination under Title VII, often as “gender stereotyping,” even though the law does not specifically include those as protected categories.

National Origin Discrimination

In EEOC v. PBM Graphics, Inc. (M.D. NC, 2012), the company will pay $334,000 to “on-call” temporary workers. “On-call” workers wait to be called in only “as needed.” The suit, under Title VII, alleged that PBM established a “core group” of Latino on-call workers who were told to report every day unless called off. They became, in effect, regulars. Other on-call workers, U.S. citizens, were still only on-call and only called when the “core group” was not sufficient, thus seriously diminishing their employment.

EEOC v. Hamilton Growers, Inc. (M.D. Ga., 2012) was a case brought under Title VII, the FLSA and the Migrant & Seasonal Agricultural Workers Protection Act. The EEOC alleged that the company laid off virtually all of its U.S. citizen farm workers, almost all of whom were Black, and replaced them with H-2A guest workers from Mexico. Contrary to the stereotype of replacing higher-paid U.S. workers with lower-paid foreign labor, the company allegedly paid higher rates to the H-2A workers than to the few U.S. employees it did retain. The EEOC alleged that this was also done in an effort to motivate the remaining U.S. employees to quit. Again, the company denied the charges while settling the case for $500,000.

Disability Discrimination

Educating women to tolerate harassment was not a reasonable request for accommodation. An employer received numerous complaints about a male employee’s sexual comments, staring and following of female workers. He produced certification of a Pervasive Developmental Disorder (PDD) which caused low control of these behaviors. He requested the reasonable accommodation of having his treating therapist educate the female staff so they would understand his disability and be more tolerant of the behaviors. The employer denied that accommodation, and he was terminated for continued sexual harassment. He sued under the ADA and Rehabilitation Act for failure to accommodate. The court dismissed. It found the requested accommodation to be “unreasonable on its face, as a matter of law.” No one should have to accommodate by tolerating ongoing and overt sexual harassment. It also found the plaintiff to not be a “qualified person with a disability.” His disability rendered him unable to follow valid rules of workplace conduct; therefore, he could not meet essential functions of the job. McElwee v. County of Orange (2nd Cir., 2012).

Gender Discrimination

The fact that harassment stopped is not enough to avoid liability; employer has a duty of care to take corrective action. A county secretary complained that the planning office’s legal counsel subjected her to a pattern of overt verbal and physical sexual comments, touching and sexual gesturing. When she complained to the department director, he laughed and agreed that the attorney was “a pervert,” then did nothing. At about the time of the complaint, the secretary announced that she was pregnant. The harassment stopped. Nonetheless, the secretary filed a harassment case. The county defended, claiming that the harassment ceased after her complaint, so there was no liability. The court disagreed. It ruled that an employer has a duty to actively address harassment situations. Doing nothing is not adequate. Just because the harassment happened to coincidentally stop, fortuitously, does not excuse the employer from its obligation to actually address and correct the attorney’s behavior. The county’s nonaction on the complaint fell below the required duty of care. Henricks v. White County (N.D. Ind., 2012).

Religion Discrimination

Is veganism a religion? A hospital required all employees to have a flu shot. It did exempt those whose religion prohibited them from vaccination, under Title VII’s reasonable-accommodation requirements. One employee refused to get the shot, claiming that she was vegan and the flu vaccine was made using an egg-based medium. Thus, the shot would put an animal product in her system. The hospital fired her for not following its policy. She sued for religious discrimination, claiming a sincere religious belief in her vegan practice. The hospital claimed her social beliefs and lifestyle did not equate to a religion under Title VII. However, the court found sufficient foundation for the case to proceed. Title VII covers “moral or ethical beliefs . . . held with the strength of religious views.” The plaintiff’s strongest point is that she quoted Biblical scripture about dietary restrictions and purity while refusing the flu shot. Chenzira v. Cincinnati Children’s Hospital (S.D. Ohio, 2012).

Veterans Discrimination

Laid-off status is a valid “re-employment position.” The Uniformed Services Employment and Re-Employment Rights Act (USERRA) requires that service members returning from active duty be reinstated to the job they left, including to the position their job became while they were gone (such as reclassifications to a higher level, pay increases, enhanced duties, etc.). This is called the “escalator principle.” Upon return from deployment, the plaintiff was informed that his job had been eliminated in a layoff of an 18-person unit, so there was nothing to restore him to. He sued. The court ruled in favor of the company. The law requires reinstatement to the position one “would have had absent military interruption.” If he had not been called to duty, the plaintiff would have been laid off in the unit elimination. He is entitled to no better treatment than had he been employed the whole time, so his laid-off status is exactly what his job “escalated to.” The employer is not required to create a new or different job. Milhauser v. Minco Products, Inc. (8th Cir., 2012)

Bob Gregg, a partner in Boardman & Clark LLP, shares his roundup of diversity-related legal issues. He can be reached at rgregg@boardmanclark.com

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