In Spencer v. Virginia State University, et al., the United States District Court for the Eastern District of Virginia dismissed Equal Pay Act and Title VII pay discrimination claims brought by a female university professor against Virginia State University.  Plaintiff alleged that male professors with fewer qualifications and less experience were paid substantially more than similarly-situated female co-workers.  The University sought to dismiss Plaintiff’s wage discrimination claims, asserting that Plaintiff failed to identify proper comparators, as required by the statutes.  The Court noted that the Fourth Circuit has held that a Plaintiff must show that he/she received lower pay than a “comparator” of the opposite sex for performing work substantially equal in skill, effort and responsibility under similar working conditions.

The Court dismissed Plaintiff’s claims, holding that the six male co-workers Plaintiff identified were not proper comparators because,  among other reasons, the professors worked in different departments than Plaintiff and Plaintiff failed to allege with specificity the responsibilities and requirements of her own or the co-workers’ positions.  That Plaintiff’s co-workers shared the same title as Plaintiff and earned higher pay was insufficient, without further detail, to support a plausible wage discrimination claim under the statutes.

As previously reported, pay equity and pay transparency issues are at the forefront in employment law.  Employers should take a proactive approach to determine whether potential pay equity issues exist and whether affirmative steps must be taken to correct any inconsistencies.

In Catalina v. Moniz, the United States District Court for the District of New Mexico dismissed Equal Pay Act and Title VII pay discrimination claims brought against the U.S. Department of Energy (DOE).  Although Plaintiff raised a question of fact regarding whether she performed “substantially equal work” as a male coworker, the employer presented evidence that the pay difference resulted from the male employee’s greater prior experience and educational background in science.  Specifically, the male employee possessed a degree in biological sciences, which plaintiff did not, and had significantly more prior related experience as an industrial hygienist, a physical scientist and an employee of the federal government.  As the court noted, prior experience is a factor “other than sex” for purposes of the Equal Pay Act.  Based on these factors, the court dismissed both the Equal Pay Act and Title VII claims on summary judgment without the need for a trial.

This case underscores a nationwide trend, both at the federal and state levels, towards greater pay transparency, more limited employer defenses to pay discrimination claims, and wider availability of potential damages. Undertaking a proactive, privileged pay equity analysis in order to examine pay disparities between comparable employees, if any, and in order to ensure legitimate, nondiscriminatory reasons explain all such differences may avoid such claims or, at a minimum, make them more easily defensible and susceptible to early case resolution.

A Connecticut federal District Court ruled that a female ex-school teacher may proceed with her Title VII claim alleging sexual orientation discrimination. Boutillier v. Hartford Pub. Sch., (D.Conn., 3:13-cv-01303-WWE, 11/17/16).  Plaintiff alleged that, because of her sexual orientation, she was subjected to an extended pattern of mistreatment by the school principal and vice principal.  On one occasion, upon return from an approved medical leave, Plaintiff alleges that she was assigned a newly created position, requiring her to create new curriculum and travel around the school despite a doctor’s note stating that Plaintiff suffered from profound fatigue.  Additionally, Plaintiff twice was taken to the hospital by ambulance after being admonished by the principal or assistant principal.  Other examples involved the assistant principal calling Plaintiff at home demanding to know her medical status and what medications she was taking, and calling her home and insisting she appear for work when her car was not working.

Seeking dismissal, Defendant’s summary judgment motion argued sexual orientation is not a protected category under Title VII. The Court denied the motion, concluding that Plaintiff adequately established a right to protection under Title VII based on recent judicial interpretations and that multiple triable issues of fact existed.  The Court relied in part on a Second Circuit case that held interracial association could be discrimination based on the employee’s own race.  Thus, the Court concluded that sexual orientation discrimination is because of the employee’s sex.  Further, the Court noted that sexual orientation cannot be extricated from the term “sex” under Title VII.

Employers should continue to treat sexual orientation as a protected characteristic and be sensitive to activity that could potentially give rise to a sexual orientation discrimination claim. Indeed, many states already have statutes that expressly prohibit sexual orientation discrimination.

The Sixth Circuit recently reversed the grant of summary judgment in favor of an employer in a case arising under the Americans With Disabilities Act.   The Court determined that an issue of fact existed as to whether the ability to lift more than 35 pounds was an essential function of plaintiff’s job as a stock clerk and, if so, whether he could perform this essential function with or without reasonable accommodation.  Camp v. Bi-Lo, Inc., 2016 U.S. App. LEXIS 19053 (6th Cir. Oct. 21, 2016).  In Camp, the plaintiff and the two other stock clerks failed to finish shelving products because the plaintiff could not assist with heavy lifting.  Plaintiff was placed on a leave while the company evaluated his capabilities  In deciding to discharge plaintiff, the employer relied upon a job description, created in 2007 (i.e., long after plaintiff began his employment), which required store clerks to lift at least 20 pounds “constantly” and 20 to 60 pounds “frequently.”  The only question before the trial court and later the appellate court was whether lifting more than 35 pounds (which his doctor certified that  plaintiff could not do) was an essential function of the stock clerk position.  The Sixth Circuit found that it was not (and thus the discharge violated the Americans with Disabilities Act).  While the employer relied on the written job description, its adherence to the job description was undermined by the immediate supervisor’s testimony that heavy lifting was not an essential function of the position.  The Court distinguished the case from one involving a firefighter where the inability to lift the required weight could put another person’s life at risk.  Refusing to “require blind deference to the employer’s stated judgment,” the Sixth Court found the “actual on-the-job experience” of plaintiff and his coworkers to be persuasive, thereby holding there was a genuine dispute of material fact as to whether the ability to life more than 35 pounds was an essential function of the plaintiff’s job.

This decision serves as a reminder to employers of the importance of ensuring that written job descriptions are consistent with the actual functions required of the position and of the workers’ perceptions of what they do and how they do it.

 

A Texas Judge issued a nationwide preliminary injunction yesterday preventing the DOL from implementing or enforcing its regulation raising the salary level for the white collar exemptions.  An article discussing the case and the impact is posted on our website.  Here is the link: http://www.jacksonlewis.com/publication/texas-court-grants-nationwide-preliminary-injunction-enjoining-department-labor-implementing-or-enforcing-regulation.  

We are holding a webinar on Monday at 12:00 EST to discuss the decision and the options employers have in light of the decision and likely appeal by the DOL.  You may register using this link: https://attendee.gotowebinar.com/register/1500270800817977346?source=JL.    

Needless to say, employers are faced with a chaotic situation and their insurance carriers face that uncertainty with them.  While invalidating the increased salary basis leaves the old test in place, the order would seem to give rise to a challenge to the salary and fee basis regulations that long have been part of the wage-hour exemption tests for those engaged in professional, managerial/executive and administrative capacities.

 

 

In a recent decision from the Eastern District of Pennsylvania, the Court held that sexual orientation discrimination constitutes discrimination based on gender stereotyping and, as such, is covered under Title VII of the Civil Rights Act of 1964.  The case was filed by the Equal Employment Opportunity Commission on behalf of an employee who had been subjected to anti-gay slurs.  For more information, click here.  

 

Jackson Lewis Principal Dean Falavolito and Associate Joanna Rodriguez recently won a defense verdict for a Pittsburgh non-profit organization in a lawsuit claiming religious discrimination in violation of Title VII of the Civil Rights Act of 1964 and the Pennsylvania Human Relations Act.    The client was insured by Employment Practices Liability Insurance (“EPLI”).

In the suit, the Plaintiff, a former employee, claimed that his sincerely held religious beliefs prevented him from attending a ceremony held to open the client’s new offices.     The Plaintiff also claimed that he was terminated after he objected to the ceremony being held.   The client held that the Plaintiff never provided “fair warning” that the ceremony would have conflicted with his religious beliefs and that the Plaintiff was terminated when he voiced his objection in an unprofessional and insubordinate way.  The jury found for Jackson Lewis’ client on both counts, stating that the Plaintiff did not provide the client with fair warning of his religious beliefs and that the real reason for his termination was that he acted in an insubordinate manner.    

A critical issue that came to light during the trial is whether an employee’s admitted insubordinate conduct can be “excused” if his conduct was “provoked” and/ or “justified” (as the Plaintiff attempted to argue).  The trial judge allowed the Plaintiff to include a jury instruction where the jurors could consider excusing the Plaintiff’s conduct if they believe he was, in fact, provoked or justified.   Despite this, the jury sided with the client, finding no liability.

 

 

The U.S. Court of Appeals for the Eleventh Circuit recently rejected a claim that applicants  can sue for disparate impact under the federal Age Discrimination in Employment Act (ADEA).  Villarreal v. R.J. Reynolds Tobacco Company, et al., 2016 U.S. App. LEXIS 18074 (Oct. 5, 2016).

The plaintiff alleged that R.J. Reynolds Tobacco Company’s recruiting practices (including the Company’s purported practice of targeting recent college graduates) had an adverse effect on applicants over the age of 40.  The District Court granted R.J. Reynolds’ motion to dismiss, holding, among other things, that the ADEA only authorizes employees – not applicants – to bring disparate impact claims. 

The Eleventh Circuit, sitting en banc, agreed.  By a vote of 8-3, the Court ruled that the “plain text of section 4(a)(2) [the provision of the ADEA pertaining to disparate impact claims] covers discrimination against employees.  It does not cover applicants for employment.”  Thus, plaintiff could not state a claim for age discrimination. 

The Court expressly rejected the Equal Employment Opportunity Commission’s (EEOC) position that the ADEA allows disparate impact claims by both employees and applicants, and vacated a previous panel decision deferring to the EEOC’s interpretation.  Deference to the EEOC’s interpretation was improper, the Court held, as such interpretation was in direct contrast to the statute’s clear and unambiguous language.  The Court also rejected the argument that limiting disparate impact claims to employees would impermissibly limit the ADEA’s broad remedial purpose, stating that “our job is to follow the text even if doing so will supposedly undercut a basic objective of the statute.”  Moreover, the Court noted that job applicants are not without recourse, as applicants still can bring claims for disparate treatment.

The issue remains unsettled in other Circuits.  This case serves as a reminder that although disparate impact claims may not be brought by applicants, individual claims of age discrimination under the ADEA can be maintained by applicants.  Employers are advised to review their applications and hiring practices to ensure that the process does not implicate an applicant’s age.

 

A transgender police officer, who identifies as a male officer, filed a lawsuit in the U.S. District Court for the District of Nevada alleging sex discrimination pursuant to Title VII of the Civil Rights Act and related state law. Roberts v. Clark County Sch. Dist., 2016 U.S. Dist. LEXIS 138329 (D. Nev. Oct. 4, 2016).  Rather than being allowed to use the bathroom of the gender with which he identifies, the School District required Plaintiff to use a gender-neutral, single-person bathroom.

The Plaintiff and Defendant cross-moved for partial summary judgment on Plaintiff’s claim brought pursuant to Title VII.  Defendant argued that Title VII prohibits only discrimination based on biological sex, not gender identity (which is not specifically listed as a protected category under the statute).  The U.S. District Court, expanding the reach of the protected category of “sex,” denied Defendant’s motion and granted Plaintiff partial summary judgment on his Title VII claim. The court relied upon other appellate court rulings to hold that that sex stereotypes are included within Title VII’s protection of “sex.”  Specifically, the District Court held that “discrimination against a person based on transgender status is discrimination ‘because of sex’ under Title VII.”

Both the EEOC and now, an increasing number of courts and circuits, are interpreting Title VII’s prohibition against “sex” discrimination to include gender identity and gender stereotyping issues.  Accordingly, employers carefully should consider their bathroom and related policies that may draw distinctions based upon an employee’s gender – particularly those employers that operate in states without state laws that specifically include gender identity as a protected category.