SCOTUS sheds light on discriminatory job transfer claims under Title VII

The Supreme Court published its opinion in Muldrow v. City of St. Louis. The syllabus succinctly describes the holding as:

An employee challenging a job transfer under Title VII must show that the transfer brought about some harm with respect to an identifiable term or condition of employment, but that harm need not be significant.

Some Circuit Courts had been applying a heightened standard, requiring "significant" harm. The facts in this case are illustrative of the kinds of close calls that will now come out in favor of the plaintiff/employee. The plaintiff was a police officer in the police department's Intelligence Division, who was transferred to a uniformed job in the Fifth District:

Justice Kagan

While Muldrow’s rank and pay remained the same in the new position, her responsibilities, perks, and schedule did not. Instead of working with high-ranking officials on the departmental priorities lodged in the Intelligence Division, Muldrow now supervised the day-to-day activities of neighborhood patrol officers. Her new duties included approving their arrests, reviewing their reports, and handling other administrative matters; she also did some patrol work herself. Because she no longer served in the Intelligence Division, she lost her FBI status and the car that came with it. And the change of jobs made Muldrow’s workweek less regular. She had worked a traditional Monday-through-Friday week in the Intelligence Division. Now she was placed on a “rotating schedule” that often involved weekend shifts.

This was sufficient to meet the Supreme Court's new "some harm" standard - as Justice Kagan notes "with room to spare."

Pennsylvania regs expand antidiscrimination law definition of "sex"

Last time, I wrote about the new regs regarding race discrimination under the Pennsylvania Human Relations Act (PHRA) (and the housing and public accommodations provisions). Guess what? The new regs also address "sex."

You can read the full regs here. Under the new regulations, the term "sex" now includes:

• Pregnancy, including "the use of assisted reproductive technology; the state of being in gestation; childbirth; breastfeeding; the postpartum period after childbirth; and medical conditions related to pregnancy";
• Sex assigned at birth;
• Gender Identity or expression;
• "Affectional or sexual orientation," defined as "male, female, or nonbinarv heterosexuality, homosexuality, bisexuality, or asexuality by inclination, practice. identity, or expression, having a history thereof, or being perceived, presumed, or identified by others as having such an orientation"; and
• "Differences of sex development, variations of sex characteristics, or other intersex characteristics."

10th Cir. recognizes intersectional discrimination ("sex-plus-age") cause of action

Title VII prohibits sex discrimination. But what about situations in which the employer discriminates against only some women? In SCOTUS's recent decision in Bostock, Justice Gorsuch gave the example of an employer with "a policy of firing any woman he discovers to be a Yankees fan;" concluding, such a termination would be "because of sex" in violation of Title VII. 

[Sidenote: Obviously employers should just fire *all* Yankees fans. Problem solved. ;-)]

Not official use.

The 10th Circuit recently issued its opinion in Frappied v. Affinity Gaming Black Hawk, LLC. The Court addressed "intersectional discrimination," and specifically whether Title VII permits a claim based on "sex-plus-age" discrimination. The female plaintiffs alleged that their employer discriminated against women over forty (i.e. not all women). 

The 10th Circuit became the first circuit court to recognize a cause of action for "sex-plus-age" discrimination under Title VII:

We hold that sex-plus-age claims are cognizable under Title VII. There is no material distinction between a sex-plus-age claim and the other sex-plus claims we have previously recognized for which the “plus-” characteristic is not protected under Title VII. Like claims for which the “plus-” factor is marital status or having preschool-age children, a sex-plus-age claim alleges discrimination against an employee because of sex and some other characteristic. It is thus a sex discrimination claim, albeit one that alleges that the discrimination was based only in part on sex . . . . Like any other sex-plus plaintiff, a sex-plusage plaintiff must show unfavorable treatment relative to an employee of the opposite sex who also shares the “plus-” characteristic. For the female sex-plus-age plaintiffs in this case, the relevant comparator would be an older man.

Notably, the Court's ruling appears to be an extension of Bostock, so I expect other circuits to follow suit. 

USWNT discrimination case (mostly) dismissed

Things have been a little hectic lately, so I'm sorry it took me so long to get to this. 10 days ago, the district court mostly dismissed U.S. women's soccer team's equal pay act and Title VII lawsuit. You can read the opinion in Alex Morgan, et. v. United States Soccer Federation, Inc. here.  

I use this case as my go-to discussion topic for Equal Pay Act claims in my employment law classes. Ya know what argument no one has ever made in any of my classes? That the men's and women's teams actually get paid the same rate. And yet, per the opinion:

It is undisputed that, during the class period, the WNT played 111 total games ad made $24.5 million overall averaging $220,747 per game. By contrast, the MNT played 87 total games and made $18.5 overall, averaging $212,639 per game. 

 

Thus, the shocking conclusion was that the women actually made more on a per game basis. This allowed the Court to effectively duck the most contentious issues - do the USWNT and USMNT perform substantially equal work? If so, does a legitimate factor other than sex account for the difference? 

You can read criticism of this conclusion at Volokh here. The gist of which is that the women only earned equal (actually, slightly higher) compensation by winning a lot more games than the men, triggering myriad bonuses. In the context of an Equal Pay Act claim, I'm not sure this criticism is compelling - the EPA framework requires a showing of substantially equal work for lower pay. If the argument is that the women do much better work (i.e. win more games) and only make a little bit more . . . I mean, that just doesn't really align with the framework. 

Now, it could make a decent Title VII claim, and the women did have a Title VII claim too. The Court basically ignored the Title VII discriminatory compensation issue though, with a (paraphrase) "see EPA analysis above." Ultimately, the USWNT has a few surviving claims under Title VII based on:

(1) travel conditions (specifically, charter flights and hotel accommodations), and (2) personnel and support services (specifically, medical and training support). 

Frankly, the USWNT may have preferred to have the suit dismissed in its entirety to make it easier to appeal now. Anyway, I'm sure this issue is not going away any time soon, but we finally have a ruling from the trial court on the main claims.  

SCOTUS vacates Ninth Circuit Equal Pay Act decision

Under the Equal Pay Act, employers must pay men and women equally for substantially equal work. There are, of course, exceptions, such as a merit system, seniority system, a system based on quality or quantity of production, and the catchall "any other factor other than sex."

Well, last year, the Ninth Circuit held that employers could not rely on an employee's prior salary to justify pay differential. According to the Ninth Circuit, this would "allow employers to capitalize on the persistence of the wage gap and perpetuate that gap ad infinitum." This morning, the Supreme Court vacated that decision in a per curiam opinion (p. 13) . . . but for an interesting reason.

The Ninth Circuit opinion included a footnote at the very beginning:

Prior to his death, Judge Reinhardt fully participated in this case and authored this opinion. The majority opinion and all concurrences were final, and voting was completed by the en banc court prior to his death.

In other words, the Court officially decided the case after Judge Reinhardt had passed away.

This morning, the Supreme Court held that the Ninth Circuit should not have done that. "[F]ederal judges are appointed for life, not for eternity." Without Judge Reinhardt's vote (let alone opinion), only 5 of the remaining 10 judges concurred in the "majority" opinion. So, the Supreme Court vacated the case and remanded it back to the Ninth Circuit.

I heard the 4th Circuit recognized a harassment claim based on rumors, pass it on.

[T]he central question presented is whether a false rumor that a female employee slept with her male boss to obtain promotion can ever give rise to her employer’s liability under Title VII for discrimination “because of sex.”

Welcome to Parker v. Remo Consulting from the 4th Circuit. The plaintiff alleged that the highest-ranking manager at her warehouse facility participated in the gossip, asking the man in the rumor, "hey, you sure your wife ain’t divorcing you because you’re f--king [the plaintiff]?" The manager allegedly went on to blame the plaintiff for "bringing the situation to the workplace" and told her that he would no longer recommend her for promotions.

The district court dismissed the claim, drawing a distinction between the plaintiff's sex (a protected characteristic under Title VII) and her conduct (generally not protected*). The Fourth Circuit reversed, pointing to the sex stereotype that "women, not men, use sex to achieve success." Additionally:

The complaint not only invokes by inference this sex stereotype, it also explicitly alleges that males in the RCSI workplace started and circulated the false rumor about Parker; that, despite Parker and Pickett’s shared tardiness, Parker as a female, not Pickett as a male, was excluded from the all-staff meeting discussing the rumor; that Parker was instructed to have no contact with Jennings, her male antagonist, while Jennings was not removed from Parker’s workplace, allowing him to jeer and mock her; that only Parker, who complained about the rumor, but not Jennings, who also complained of harassment, was sanctioned; and that Parker as the female member of the rumored sexual relationship was sanctioned, but Pickett as the male member was not. 

The Court concluded that the plaintiff had sufficiently pleaded a Title VII hostile work environment claim.

Now seems like a good time to share Ross Runkel's Case of the Week video series too. Here's his video on this case (find more at http://www.rossrunkel.com):



* Notable exception for sex stereotyping and protected activity (participation and opposition in good faith efforts to address discrimination).

6th Cir.: Title VII prohibits discrimination against transgender and transitioning employees

Earlier today, the Sixth Circuit held in EEOC v. Stephens:

Not official use.

Discrimination against employees, either because of their failure to conform to sex stereotypes or their transgender and transitioning status, is illegal under Title VII.

Title VII prohibits "sex" discrimination but makes no mention of transgender or sexual orientation. However, this is the latest in a line of cases broadening the meaning of sex discrimination, and utilizing gender stereotyping theories, to afford protection to LGBT employees.

Just last week, the Second Circuit held that Title VII prohibits sexual orientation discrimination.

But all three VPs were men . . .

Earlier this month, the Third Circuit issued a non-precedential opinion in Steele v. Pelmor Laboratories, Inc. I don't consider it a huge case, but it does include some interesting analysis, including a breakdown of "statistical evidence."

The employee claimed that she was passed over for a promotion to VP because she is a woman. She asserted claims under Title VII, the PHRA, and the Equal Pay Act. She cited the fact that the rather small employer had three VPs (the position she wanted), and all three were men. That didn't seem to get her very far on the "pretext" prong of the analysis:

Not official use.

Although “[s]tatistical analyses have served and will continue to serve an important role as one indirect indicator” of discrimination, Mayor of City of Phila. v. Educ. Equal. League, 415 U.S. 605, 620 (1974), such raw numerical comparisons as Steele offers here are of limited utility, absent “any analysis of either the qualified applicant pool or the flow of qualified candidates over a relevant time period,” Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 543 (3d Cir. 1992). The usefulness of statistical evidence in proving discrimination “depends on all of the surrounding facts and circumstances,” Int’l Broth. of Teamsters v. United States, 431 U.S. 324, 340 (1977), but the record here says nothing about the facts and circumstances surrounding the hiring of the three past male Vice Presidents. Even if it did, such evidence would be of questionable strength in establishing any sort of pattern of discriminatory conduct. See Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 995 (1988) (“[S]tatistical disparities must be sufficiently substantial that they raise such an inference of causation.”). Without any evidence related to the hiring of three past Vice Presidents, particularly whether there were qualified female candidates who applied for those openings and were denied, we must reject Steele’s argument that there is “statistical evidence of pretext.” (Opening Br. at 18.).

In short: the fact that all three VPs were men did not carry the day for her.

The Court also examined the plaintiff's qualifications in comparison to the man who got the job. To establish pretext, the employee must show that "the qualifications of the person actually promoted were so much lower than those of h[is] competitors that a reasonable factfinder could disbelieve the claim that the employer was honestly seeking the best qualified candidate." Bray v. Marriott Hotels, 110 F.3d 986, 999 (3d Cir. 1997). The Court concluded that, if anything, the man who received the promotion was more qualified.

Finally, we have the EPA claim. To prevail on an EPA claim, the plaintiff must show that she received less compensation for substantially equal work ("work of substantially equal skill, effort and responsibility, under similar working conditions"). She used the guy who was VP as her comparator... umm, I mean obviously he doesn't do the same work, he got promoted to VP, right? Of course I'm right. The Court concluded that the male VP was the plaintiff's boss and paying him more was not discriminatory.

The Supreme Court and the Men Who Lactate

How's that for a title? You can imagine my surprise when I saw a tweet:

Supreme Court concludes firing a woman for breastfeeding isn’t sexist because men can lactate http://t.co/G0S65HaOFJ #emplaw #hr #employees
— Donna Ballman (@EmployeeAtty) February 10, 2015

How in the world did I miss that!? A friend also emailed me a similar story: Breast-Feeding Mom Loses Discrimination Case Because Men Can Lactate Too. There's some tiny little smidgen of truth to the stories, buried under a mountain of . . . I'll call it "questionable journalism."

We'll start with the tiny bit of truth. In Ames v. Nationwide, the district court noted in a footnote that:

A plaintiff could potentially succeed on a claim if she alleged and was able to prove that lactation was a medical condition related to pregnancy, and that this condition, and not a desire to breastfeed, was the reason for the discriminatory action(s) that she suffered . . . .  Ames has not presented sufficient evidence that lactation is a medical condition related to pregnancy. Indeed, as the Nationwide Defendants point out, “lactation can be induced by stimulating the body to produce milk even though the person has not experienced a recent birth or pregnancy.” Additionally, the Court takes judicial notice of the fact that adoptive mothers can also breast-feed their adoptive babies. See Defs.’ App. at 323–25 (stating that adoptive mothers can breast-feed their adoptive babies and describing what adoptive mothers should do to stimulate milk production). Furthermore, it is a scientific fact that even men have milk ducts and the hormones responsible for milk production. See Nikhil Swaminathan, Strange but True: Males Can Lactate, SCI. AM., Sept. 6, 2007, available at http://www.scientificamerican.com/article.cfm?id=strange-but-true-males-can-lactate&sc=rss. Accordingly, lactation is not a physiological condition experienced exclusively by women who have recently given birth.

The point being that lactation is not necessarily a "pregnancy-related condition" protected by the Pregnancy Discrimination Act - the plaintiff must provide evidence to establish that. This is not the same as holding that "firing a woman for breastfeeding isn’t sexist because men can lactate." More importantly, the plaintiff lost for entirely different reasons.

Despite the headline, the employer did not fire her. She resigned! She tried to argue constructive discharge, but the Court held:

Ames did not follow known internal grievance procedures to lodge her complaint. Indeed, she did not even attempt to do so. Instead, she assumed the worst and surmised that her only reasonable option was to tender her resignation. Under existing law, Ames cannot prevail on her constructive discharge claim.

Well, that's just plain more boring than "firing a woman for breastfeeding isn’t sexist because men can lactate." And then there's this problem - the Court also found that the employer did not treat her in a discriminatory manner:

Providing a letter explaining the procedure for obtaining access to a lactation room is not an act of discrimination. When, on July 19, 2010, Ames found out that she would not be able to use a lactation room on that day, Hallberg offered her use of one of the wellness rooms instead. Hallberg also sent an email requesting that Ames’s request for access to a lactation room be expedited. The Court cannot agree that these actions exhibit any of the inherent characteristics of discriminatory behavior. To the contrary, Hallberg’s actions portray her as someone who was exceptionally sensitive to Ames’s recent childbirth and breastfeeding concerns.

Well, that's not gonna generate page clicks.

What happened on appeal? Well the Slate article claims that:"the Supreme Court . . . uph[eld] a federal appeals court ruling against a breast-feeding mother . . . . Part of the court's reasoning was, according to Galen Sherwin of the American Civil Liberties Union, 'that even if Angela had been fired because she was breast-feeding, that was not sex discrimination, in part because men can lactate under certain circumstances.'"

Yeah, except that the Eighth Circuit did not address the male lactation issue at all. Not even a little. No mention whatsoever. Instead, the Eighth Circuit upheld the district court's decision that the employee was not constructively discharged.

And the Supreme Court? The Supreme Court decided not to hear an appeal from the Eighth Circuit. That means it did not in any way rule on the Eighth Circuit decision, which itself did not in any way address male lactation.

Occasionally, I wish that the media would spend more time covering employment law. When they take a footnote that is probably dicta from a trial court opinion and fabricate a Supreme Court ruling from it, I rethink that position. Although, we did learn something . . . men can lactate! . . . oh, and if you want to sue your employer for discrimination, don't resign unless you really have to.

End note: I should note that Donna Ballman was not the author of the article she tweeted, she was merely passing along coverage of this case to her Twitter followers. She provides her own, excellent coverage of employment law issues on her own blog and also on AOL Jobs.

Coming Today: Obama "Equal Pay" Executive Orders

President Obama is expected to sign two executive orders designed to combat wage inequality today. Based on reports (Washington Post,  U.S. News, Huffington Post, and more), the two executive orders will generally provide that:

• Federal contractors can not retaliate against employees for sharing salary/wage information; and
• Federal contractors must report wage-related data to the government (based on Department of Labor regulations to be promulgated under the order).

I should note that the NLRA is generally perceived as covering the issue of employees sharing wage and salary data for private, non-management employees (see general agreement between employee-side Donna Ballman and employer-side Eric Meyer). 

White House executive orders are posted here (as of publication, the orders described above are not up yet).

Yoga Instructor "Too Cute" for Playmate and Husband

So, a yoga instructor filed a lawsuit late last year claiming she was fired for being "too cute." The defendants are a playboy playmate and her husband. I know, I know, you want to see the goods. Well here you go (it's a link to the Complaint, what else would it be?).

If for some reason you want to see pictures of the parties, they're here. And no, not *those* pictures. You can find those yourself (but they probably require a subscription).

The lawsuit is framed as a gender discrimination/sexual harassment lawsuit. The plaintiff basically claims she was fired because the playmate was jealous and suspected something was going on between her husband and the yoga instructor (which she denies).

Does this sound familiar? I think we have Iowa case law on point here. Remember the "irresistible" dental assistant? The Court concluded it was lawful for an employer to fire a woman because his spouse was concerned about the nature of their relationship.

That's not binding on New York courts (where this lawsuit was filed) though. The defendants here argue that terminating someone for "attractiveness" is not illegal (but you already knew that because you clicked the link with the pictures).

Maybe the "too cute" yoga instructor, the "irresistible" dental assistant, the "too hot" banker, and the "too busty" data entry specialist should start a non-profit to protect the extraordinarily attractive in the workplace. Or perhaps lobby for legislation on this issue . . . .

Update on Protected White Males (I Got the Doc!)

Ask and ye shall receive. In my last post, explaining that white males are a protected class, I asked readers for docs pertaining to the case in which the Archie's Comics CEO claimed white males are not a protected class. Well, reader Mark E. Moore came up huge!

He emailed me the Defendant's brief, which I have uploaded to Google Docs (here). Upon review, here are some additional thoughts:

• It's a motion to dismiss relying on several arguments. Defendant is hardly hanging her hat on the defense that white males are not a protected class. That said, the brief clearly states in no uncertain terms, "White males are not a member of a protected class under this section of the HRL (New York's Human Rights Law)."
• In my post, I explained that white males are protected under federal law with the caveat that it might be different under state law. Here, the NY statute uses the same "because of . . . race/sex" language used in Title VII. Presumably, it protects whites and males as well (although I have not researched the issue under NY law at all).
• The brief fails to cite the specific section of the HRL to which it is referring, and similarly fails to cite anything supporting the assertion that white males aren't protected. I am not persuaded.

In any event, I thought you might be interested in reading the actual arguments in the docs. Thanks again Mark!

Yes, White Males Are a Protected Class

I feel like this story is too stupid to be true . . . yet here we are. I first heard about it via Jon Hyman, although it is now blowing up into the mainstream media (see CNN front page news item here). The CEO of Archie Comics is accused of calling male employees "penis" in a recent lawsuit - and her defense? According to the reports, her lawyer (really?) is proffering as her defense that white males are not a protected class under employment discrimination statutes.

Let me assure you that this is wrong - at least as it pertains to federal employment discrimination laws.

It is well settled that Title VII's prohibition of race-based discrimination protects white employees as well as minority employees. McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 278–79, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976) (stating that Title VII is “not limited to discrimination against members of any particular race”).

Burlington v. News Corp., 759 F. Supp. 2d 580, 596 (E.D. Pa. 2010). The plaintiff in Burlington? A white guy claiming he was fired for using the n-word while black employees used it without discipline. The Court allowed his claim to proceed past summary judgment to a jury (although I'm not sure what ever happened to this case - chime in with a comment if you know). So yes, whites are covered.

And what about men? Yup. Covered. In fact, EEOC charge statistics show that as of 2011, over 16% of sexual harassment charges were filed by men.

Title VII's prohibition of discrimination “because of ... sex” protects men as well as women.

Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78, 118 S. Ct. 998, 1001, 140 L. Ed. 2d 201 (1998). And, in case you're wondering, Oncale also explains that employees may face race and/or sex discrimination from members of the same race and/or sex.

I'd like to see a copy of the actual court filing to see if there's some unreported nuance in this Archie case (like the lawsuit was brought under some state law that actually doesn't protect white males). If you have a link, drop a comment.

Court Resists "Irresistible" Employee's Lawsuit... Again

We've been following the saga of the "irresistible" employee for awhile now. The Iowa Supreme Court originally rejected her sex discrimination claim. But, the Court just couldn't resist giving her another look... err, I mean giving her claim another look.

On Friday, we got the new opinion:

Can a male employer terminate a long-time female employee because the employer’s wife, due to no fault of the employee, is concerned about the nature of the relationship between the employer and the employee? This is the question we are required to answer today. For the reasons stated herein, we ultimately conclude the conduct does not amount to unlawful sex discrimination in violation of the Iowa Civil Rights Act

Same result - affirming summary judgment for the employer.

Now, I know what you're thinking - How can the United States Supreme Court resist her on appeal? Well, the decision is based on Iowa law so this is probably the last stop.

No Brazilian Wax, No Job - COTW #150

Sometimes, the complaint really does a nice job of laying the facts bare to support the claims with more than just naked allegations. OK, I planned on a pun-laden post here, but most of the puns I could come up with seemed horribly inappropriate (even for this blog).

The plaintiff was a trainee at a spa. Let's just check out the complaint (via Eric Meyer):

2. On October 1, 2012, Finley attended her first day of “training,” which was run by an EWC Corporate representative. The corporate trainer announced that, as part of this “training” program, Finley and her co -workers were required to perform “Brazilian - style” waxes on each other the following day. A “Brazilian” is a method and style of public hair removal, in which one applies a heated adhesive wax to the pubic hair on or near another’s anus and genitalia, and then forcibly removes that wax and hair by “tearing” the adhesive from the person’s skin. 

3. Finley refused to comply with this “training,” because it was humiliating, painful, embarrassing, and discriminatory. Moreover, Finley was scheduled to begin menstruating on the same day she was expected to have the Brazilian wax, and expected to be extremely sensitive in the most private region of her body.

4. When Finley explained her opposition to the mandatory “Brazilian” waxing, and explained that receiving a “Brazilian” wax would be extremely painful and humiliating because of her menstruation, the corporate trainer responded that she should “put in a fresh tampon and take and ibuprofen and you’ll be fine.” 

5. Finley promptly approached the owner of the Wexford Spa, and explained to him that she refused to submit to a “Brazilian” wax performed on her by her co-workers, and that the Employers could not require her to do so. Finley was terminated immediately.

And, in case it wasn't clear:

22. Finley objected to the Brazilian wax portion of the training because it is often an extremely painful experience, because she did not want to expose her anus and genitalia to her co-workers, because she did not want her co-workers to touch her anus and genitalia, and because she simply did not want to have her anus and pubic hair removed.

Well, that's something I think a lot of people can relate to. The complaint includes claims for sex discrimination, sexual harassment, and retaliation. It also includes a creative claim for wrongful termination in violation of public privacy. What's the public policy? Invasion of privacy torts and the sexual battery statute.

Not surprisingly, this case has received some media attention - like this Huffington Post article - for the important employment law issues, I'm sure (HT: Mike Chittenden via email).

Lactation Discrimination - COTW #146

In EEOC v. Houston Funding II, Ltd., the Fifth Circuit held that "lactation is a related medical condition of pregnancy for purposes of the PDA (Pregnancy Discrimination Act)." In other words, lactation discrimination is illegal. The Court reversed the district court's decision (which was Case of the Week #79).

The holding is not all that shocking, but the factual background is a little unusual:

Venters told Fleming that she was breastfeeding her child and asked him to ask Cagle whether it might be possible for her to use a breast pump at work. Fleming stated that when he posed this question to Cagle, Cagle “responded with a strong ‘NO. Maybe she needs to stay home longer.’ “ On February 17, 2009, Venters called Cagle and told him her doctor had released her to return to work. Again, she mentioned she was lactating and asked whether she could use a back room to pump milk. After asking this question, Venters testified that there was a long pause, and when Cagle finally responded, he told her that they had filled her spot.

So, this sounds a little bit like an accommodation case. But it's not. The Court made clear that it's decision to allow the woman to proceed with her sex discrimination claim was not an accommodation case:

The issue here is not whether Venters was entitled to special accommodations—at the time, she was not entitled to special accommodations under Title VII—but, rather, whether Houston Funding took an adverse employment action against her, namely, discharging her, because she was lactating and expressing breast milk.

And, in case that wasn't clear enough, Judge Edith Jones issued a concurring opinion:

[T]his court held that the PDA does not mandate special accommodations to women because of pregnancy or related conditions. It follows that if Venters intended to request special facilities or down time during work to pump or “express” breast milk, she would not have a claim under Title VII or the PDA as of the date of her lawsuit. Indeed, if providing a plaintiff with special accommodation to pump breast milk at work were required, one wonders whether a plaintiff could be denied bringing her baby to the office to breastfeed during the workday.

Bottom line: lactation discrimination is unlawful, but failure to accommodate is probably not.

Obligatory reminder: Obamacare amended the FLSA to require reasonable break time (and space) for nursing mothers.

Segregated Law Firm? - COTW #138

The ABA Journal reports a Dallas lawyer filed a lawsuit alleging her law firm had a policy that prohibited male attorneys from being alone with female attorneys. As another article explains, the law firm's website indicates that they have 33 male attorneys and only five female attorneys. Obviously, the effect of the rule is that women have a much smaller "circle" to interact with than men.

Apparently, the complaint acknowledges that the firm no longer has this rule, but claims there remain lingering effects. The law firm issued a statement denying any allegations of discrimination. I'd be interested in knowing why such a rule was implemented in the first place (assuming there was such a rule).

HT: Heather Bussing via Twitter.

PA Bill Would Prohibit "Pregnancy" Discrimination

Pennsylvania House Bill No. 2542 (text here) would add "pregnancy" to the list of protected classes under the Pennsylvania Human Relations Act (PHRA). The PHRA is Pennsylvania's version of Title VII, protecting individuals from employment discrimination. The proposed law would just insert "pregnancy" into the existing text, prohibiting discrimination

. . . because of the race, color, religious creed, ancestry, age, sex, national origin or non-job related handicap or disability or pregnancy or the use of a guide or support animal because of the blindness, deafness or physical handicap of any individual or independent contractor . . . .

Question for strict textualists . . . does the pregnancy have to be "non-job related"? I'd love to litigate the case where that issue comes up! The bill also defines "pregnancy" as "women affected by pregnancy, childbirth or related medical conditions."

Back in 1978, the Pregnancy Discrimination Act amended Title VII to expressly define sex-based discrimination to include pregnancy. So, what's the point of the PA bill? It's tough to say. Title VII only covers employers with 15 or more employees, and the PHRA covers employers with 4 or more employees. I guess you could argue that the PHRA amendment covers those 4 to 14-employee employers. There are also some subtle nuances that make the PHRA a little different from Title VII (different damages, individual liability, etc.).

One HUGE note for employers though . . . pregnancy discrimination is already prohibited by the PHRA whether it expressly includes it or not! "Discrimination based on pregnancy constitutes sex discrimination . . . under the PHRA." Gallo v. John Powell Chevrolet, Inc., 765 F. Supp. 198, 209 (M.D. Pa. 1991); and H.S.S. Vending Distributors v. Pennsylvania Human Relations Comm'n, 639 A.2d 953, 954 (1994)(employer "terminated [Plaintiff's] employment because she was pregnant, in violation of the Pennsylvania Human Relations Act (Act)").

And, for comic relief, the Commonwealth Court's 1975 holding that the PHRA "requires that pregnancy be treated as any other disease." Unemployment Comp. Bd. of Review v. Perry, 349 A.2d 531, 533 (1975).

In any event, amending the PHRA to include "pregnancy" should have little practical effect. If you can think of any, drop me a comment because I'd love to know. I guess it doesn't hurt to expressly include it so that employers know their obligations (and employees know their rights). Now, we'll wait and see if it passes . . .

UPDATE: I guess the amendment would also remove the issue from the judiciary. In theory, a court could hold that pregnancy discrimination is not currently covered.

HT: The NEW! PBA Labor and Employment Law Section LinkedIn Group (ya gotta be a member to be a member, so sign up today).

Image: Personal photograph of the Capitol Building in Harrisburg, PA.

EEOC: Transgender Discrimination is Sex Discrimination (Full Opinion Here)

Title VII prohibits employment discrimination "based on . . . sex." It does not expressly protect transgender individuals. It does not protect against discrimination based on "gender identity." But, does the plain meaning of the text in Title VII afford protection to transgender individuals anyway?

Yesterday, the EEOC issued an opinion with a straightforward holding:

Thus, we conclude that intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination "based on . . . sex," and such discrimination therefore violates Title VII.

That's a pretty clear holding. This is hardly groundbreaking legal analysis though. The District of D.C. reached a similar conclusion back in 2008, the Eleventh Circuit held that transgender discrimination is sex discrimination under the Constitution's Equal Protection Clause, and other courts have applied similar analysis. Also, many states and municipalities expressly prohibit discrimination on the basis of "gender identity." Bottom line: If you're an employer, discrimination against transgender individuals is playing with fire.

Why does the EEOC opinion matter? Well, it's a nationwide opinion in that it should serve as precedent for all of the EEOC regional offices to follow. Of course, the courts in any given jurisdiction are not obligated to follow the opinion, but they may afford the EEOC's view some deference.

The full opinion is embedded below (or view online here):EEOC Ruling

HT: Ross Runkel via Twitter.

Image: EEOC logo used in commentary on EEOC. Not official use.

Miles on Gender Stereotyping

Article II of my interview with Dawn Lomer is now on i-Sight Blog: Boys, Girls and Workplace Discrimination. It covers gender stereotyping and its implications for appearance-based discrimination. Enjoy! If you missed the first article, check it out too: Why Appearance-Based Discrimination Isn't Illegal.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.