Employment Discrimination

Last week, Montgomery County, Maryland became the first jurisdiction in the Mid-Atlantic area to ban discrimination—including in the workplace—based on natural hairstyle. The bill expands the definition of race to include “traits historically associated with race,” which includes “hair texture and protective hairstyles.” Specific hairstyles articulated in the legislation include braids, locs, Afros, curls and twists, which are often associated with African American or Latino individuals.

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My interest is piqued by laws with unusual twists, like the Emeryville, California ordinance that permits the use of sick leave to care for a family member’s service animal (about which I blogged previously). Here’s another one – Pittsburgh recently passed a pregnancy accommodations ordinance that extends protections to the partners of pregnant employees!

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The story in Collins v. Koch Foods, Inc. begins with an office romance. A female HR manager began privately dating the plant manager in 2014. Because neither was a subordinate of the other, their relationship did not violate the original iteration of the company’s anti-fraternization policy. In 2016, the HR manager’s supervisor resigned for – wait for it – having an office romance with a subordinate! The female HR manager applied for the vacated position, at which time the HR manager and plant manager admitted to their relationship. The HR manager was ultimately passed over for the promotion (not by her boyfriend plant manager) and transferred to a different facility so that she and her paramour would not be working together.
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As I was perusing a recently-released volume of the Equal Employment Opportunity Commission’s quarterly Digest of EEO Law (as I am sadly wont to do – really, I need some new hobbies!), I came across an interesting article, “An Overview of Common Remedies Available in Disparate Treatment Claims of Discrimination.” (Of particular note, while the Digest, as well as the article, covers only federal sector employees, we’d expect the EEOC to take the same position with regard to private sector employees.) The article sets forth the types of remedies sought by the EEOC when it finds that an federal employee or applicant has been subjected to disparate treatment discrimination (meaning that they have been individually targeted). Although the majority of the list is rather routine, it does highlight some rather interesting remedies sought by the EEOC, of which employers should be aware.
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In an ironic twist, a manager’s alleged attempt to protect an employee from racism resulted in a discrimination claim by that employee.

In Ikome v. CSRA, LLCthe employee hailed from Cameroon and had very dark skin. He helped his employer, an information technology services company, win a contract in North Carolina with the Environmental Protection Agency and became project manager on the contract. Within weeks, however, he was replaced as project manager by a lighter-skinned African-American coworker. In his lawsuit for color and national origin discrimination, he alleges that his manager told him that people in North Carolina are “rednecks” (The manager denied using the term, but the employee’s allegations are assumed to be true at this point in the litigation, before it goes to a jury). The employee interpreted this to mean that rednecks are racist, and a lighter-skinned person would be more acceptable to them.
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Hey baseball fans, as well as all you casual observers of the sport.  If you’re like me, you’ve noticed the huge spike in home runs (Commissioner Manfred says the balls are not juiced), some of the unexpected blockbuster trades just before last week’s trade deadline, and the emergence of young second generation stars like Vladimir Guerrero Jr. and Fernando Tatis Jr.  But there’s another significant development that you may have overlooked.  I know I was asleep at the switch and did not see the news over the winter about the renaming of the Disabled List or DL, as it’s been called for over 100 years.  Truth be told, as an employment and labor lawyer, I’ve always wondered about that term.  When a player went on that list with a hamstring pull or a sprained ankle, was I to assume he was really disabled?  Especially as that term is defined under the Americans with Disabilities Act?  Of course not. Even though the ADA can sometimes be expanded to include even transient conditions, a player with a pulled hammy is not disabled.
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A recent case caused me significant concern on behalf of employers. As you may know, before an employee may file a federal discrimination lawsuit against their employer, they must first file a charge of discrimination with the Equal Employment Opportunity Commission. (And, on a related note, just recently, the U.S. Supreme Court held that this charge-filing requirement was a procedural one that could be waived by the employer, as we discussed in our E-lert). But what happens if the EEOC never notifies the employer of the charge?
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Just in time for Father’s Day, JPMorgan has agreed to pay $5 million dollars to settle a class action lawsuit based on a discriminatory parental leave policy. We previously blogged about this case when the ACLU announced that it was filing a charge of discrimination with the Equal Employment Opportunity Commission on behalf of a JPMorgan dad. (and you can check out that blog post for a deeper explanation of the legal underpinnings of this issue, if you’re really interested). But this settlement provides an emphatic (and timely!) reminder to employers to take a look at their maternity/paternity or parental leave policies to make sure they don’t run afoul of the law.
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A more conservative Supreme Court than we’ve seen in recent history is poised to consider whether Title VII’s prohibition on discrimination based on “sex” includes sexual orientation and gender identity. The Supreme Court has agreed to hear a trio of cases in the 2019-2020 term, which begins in October. We previously wrote on this topic here as the Circuit split was developing.

Not even the federal government tasked with enforcing employment discrimination laws agrees on whether Title VII covers sexual orientation. The Department of Justice reversed course during the Trump administration and now takes the position that sexual orientation is not covered, whereas the Equal Employment Opportunity Commission is holding firm to its position, first adopted in 2015, that sexual orientation is covered, as is gender identity. Additionally, under an Executive Order signed by President Obama (not yet rescinded by President Trump) and enforced by the Department of Labor’s Office of Federal Contract Compliance Programs, federal contractors and subcontractors are prohibited from discriminating against applicants and employees on the basis of sexual orientation and gender identity, in addition to (and separate from) sex.
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$3.8 million dollars. That’s what a Tucson, Arizona jury awarded to a former fire paramedic denied workplace accommodations required under the Fair Labor Standards Act for women who want to pump breast milk for their infants. Under the law, for the first year after the birth of a child, employers must provide non-exempt employees with reasonable breaks to pump. Employers also must provide a place, other than a bathroom, that is shielded from the view of others and that is free from intrusion by coworkers or others.
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