Tag Archives: discrimination

Does Title VII Prohibit Sexual Orientation Discrimination?

Does Title VII prohibit sexual orientation discrimination?  The answer, like many answers in the law is “it depends”.  With this issue it depends on the allegations of the plaintiff and the state in which you live.

The United States Court of Appeals for the Sixth Circuit, the federal court of appeals that governs Tennessee, recently held that Title VII does not prohibit discrimination based solely on sexual orientation.  In Clemons v. City of Memphis, decided on December 28, 2016, the court held that Davin Clemons, an officer with the Memphis Police Department, could not state claims for discrimination, harassment or retaliation based solely on his sexual orientation.  Clemons alleged that his supervisors voiced disapproval of his homosexual lifestyle and that he was mocked and harassed because of his engagement to another male officer.

Based on these facts the court held that Clemons claim was based solely on his sexual orientation, and not prohibited by Title VII.  In reaching its holding the Clemons Court did not overrule the 2006 Sixth Circuit decision of Vickers v. Fairfield Medical Center.   Vickers held that while Title VII does not prohibit discrimination based solely on sexual orientation, it does prohibit discrimination based on sex stereotyping.  A discrimination claim based on sex stereotyping requires an employee to establish that he or she is being discriminated against based on an observable gender non-confirming characteristic.  In other words, a homosexual man is discriminated against because he is not masculine enough, or a homosexual woman is discriminated against because she is not feminine enough.

On April 4, 2017 the United States Court of Appeals for the Seventh Circuit became the first federal court of appeals to hold that Title VII prohibits discrimination solely on the basis of sexual orientation.  In Hively v. Ivy Tech Community College the Seventh Circuit held that Ms. Hively’s claim that she was passed over for jobs because she is a lesbian was protected under Title VII.  The court specifically held that Title VII applied to this claim without proof that Ms. Hively was discriminated against based on sex or gender stereotyping.

The Seventh Circuit covers appeals from federal district courts in Illinois, Indiana and Wisconsin.  Of those three only Indiana lacks a state law prohibiting employers from discriminating on the basis of sexual orientation.

Regardless of whether you are in a state governed by the Hively decision, or a state with a law prohibiting discrimination on the basis of sexual orientation, make sure you investigate all claims of discrimination and harassment promptly and thoroughly.  Furthermore, if an employee makes a claim that he or she is being discriminated against based on sexual orientation and the investigation establishes that discrimination or harassment has occurred, take prompt, corrective action to stop the conduct and resolve the situation.  The failure to do so could result in an expensive and uncertain legal battle.

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Executive Order Will Ban Discrimination Against LGBT By Federal Govt. Contractors

Today President Obama will sign an Executive Order banning discrimination on the basis of sexual orientation or gender identity by federal contractors.  The Order will protect lesbians, gays, bisexuals and transsexuals, commonly referred to collectively as LGBT.

The Order will not include a religious based exception other than one already in place for religious organizations.  This is apparently a response to the recent U.S. Supreme Court decision in Hobby Lobby, which held that closely held companies cannot be required to provide “contraception coverage” if they object to doing so on religious grounds.

If you are doing business with the federal government make sure you check out this Executive Order and if it applies to your business, comply with it in all respects.

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BYOD? Legal Risks of Bring Your Own Device Policies

In our 24/7 society it seems everyone carries a smartphone.  We feel the need to be able to access email, surf the internet, text message and make and receive calls anytime, anywhere.  And many employers want their employees to be reachable anytime, anywhere.  As a result, many employers are going “BYOD” and adopting Bring Your Own Device Policies.  But going BYOD creates certain legal risks.  Employers need to know those risks and how to minimize their exposure to them.

The primary legal risks associated with going BYOD include:

  • Loss of confidential information due to the loss or unauthorized access of the employee’s device.
  • Wage and hour issues, such as a non-exempt employee using the device to work overtime or a minimum wage violation because the fees and expenses for the device reduce the employee below minimum wage for each hour worked.
  • Discrimination and harassment.
  • Employee negligence – the employee has an accident while using the device which results in a worker’s compensation claim, a claim by an injured third party, or both.
  • An overbroad BYOD policy which inhibits “concerted activity” in violation of the National Labor Relations Act (“NLRA”)

To minimize these risks employers should adopt a BYOD policy.  An effective BYOD policy should:

  • State that mobile device management software will be installed on the employee’s device which allows the employer to remotely “wipe” the device if necessary.
  • State that the employer is not responsible for personal data loss.
  • State that the employee has no expectation of privacy in the information stored on the device.
  • State that the employer can monitor and preserve all data on the device.
  • Require employees to sign the policy consenting to the terms.
  • Prohibit the use of the device outside of the employee’s normal work hours unless expressly authorized to do so.
  • Prohibit the use of the device for work while on unpaid leave unless expressly authorized to do so.
  • Ensure that the fees and expenses for the device do not reduce the employee below minimum wage.
  • State that time worked using the device will be counted as compensable time.
  • Prohibit the use of the device for discrimination or harassment.
  • Prohibit the use of the device when driving or operating equipment.
  • Prohibit the storing of information from prior employers.
  • State the protocols that will be followed in the case of an employee’s resignation or termination.
  • Specify any other prohibited uses.
  • State that the employee must notify management immediately in the event their device is lost, damaged or stolen.
  • Contain an NLRA disclaimer.
  • State that the BYOD Policy may be revoked at any time.

Adopting an affective BYOD Policy which contains these elements will help those employers who choose to go BYOD minimize the risks from doing so.

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Who Is The Employer of a Temporary Employee?

Do you use temporary employees in your business?  If you answered that question “yes” then you need to know that your company may be considered a “joint employer” of those employees.

If your company exercises the right to control the temporary employees your company  and the company providing the temporary employees (“temp service”) are joint employers of the temporary employees.

Factors to consider in determining who has  the right to control include:

1.who controls when the employees arrive and leave;

2. who controls what the employees do and how they do it;

3. whose policies and procedures govern the employees;

4. who provides the tools and equipment; and

5.  who pays the employees and provides their benefits.

The most significant legal implication of being a joint employer is that temporary employees can pursue a claim against you and the “temp service” for any  discrimination, harassment or retaliation they claim to experience while performing an assignment for your company.  Furthermore, under the Affordable Care Act (ACA) if you have the right to control the temporary employees you use you will have to count them in determining whether you meet the ACA 50 employee threshold.

Temporary employees can provide a valuable service to your business.  But if you use them know that the legal ramifications of doing so may be far more permanent.

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What To Do When The EEOC Comes Knocking

Recently the EEOC listed the 10 states which produced the most charges of discrimination in 2012.  To my suprise Tennessee was 10th on the list.

If your business receives an EEOC Charge (or a charge from a state human rights agency such as the Tennessee Human Rights Commission) you should take the following steps:

1. Litigation Hold- Immediately take steps to preserve all documents which might be relevant to the allegations in the charge.  This process, commonly referred to as a litigation hold, requires you to preserve hard copies as well as electronically stored information, and to suspend normal document retention/destruction practices and policies.

2. Notify your insurer- If you have Employment Practices Liability Insurance send the carrier written notice of the charge.  The failure to do so could result in the insurer denying coverage based on your failure to promptly notify it of the allegations.

3. Notify your attorney- Because statements made in the position statement and the response to the request for information are admissions which can be used against you, and the failure to assert certain defenses might result in  a waiver,  it is important that you get your attorney involved at the outset. If you have EPLI insurance the insurer will likely provide an attorney for you.

4. Investigate- If the charge presents allegations which are new or that have not previously been investigated a prompt, thorough investigation should be conducted.

5. Need to Know- In order to reduce “water cooler gossip” and to avoid retaliation claims,  you should only provide information about the charge to those who have a legitimate need to know the information.

The EEOC charge is often the first stage of what becomes lengthy, costly litigation.  Make sure you are taking the proper steps at the outset to give your business the best possible chance of prevailing.

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BYOD? What Employers Need to Know About Bring Your Own Device Policies

Check out my PowerPoint presentation BYOD on the legal risks of a Bring Your Own Device Policy and guidelines for drafting a BYOD Policy.

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What to expect from the EEOC in 2013

Late last month the EEOC issued its Strategic Enforcement Plan for 2013.  The Plan sets forth 6 priorities:

1. Eliminating Barriers in Recruitment and Hiring;

2. Protecting Immigrant, Migrant and Other Vulnerable Workers;

3. Addressing Emerging and Developing Issues;

4. Enforcing Equal Pay laws;

5. Preserving Access to the Legal System; and

6. Preventing Harassment Through Systemic Enforcement and Targeted Outreach.

Based on these priorities I recommend employers take the following steps:

1. Conduct an internal “equal pay audit” to ensure that male and female employees are being paid the same for equal work;

2. Conduct anti-harassment training for your entire workforce;

3. Conduct an internal audit of your compliance with immigration laws, including Form I-9, and;

4. Conduct an internal audit to ensure that there are not discriminatory differences in pay for any employees.

Any issues that are discovered should be corrected.

Happy New Year!

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