Tag Archives: Title VII

6th Circuit Holds Firing Because of Transgender Status Violates Title VII

Last week the U.S. Court of Appeals for the 6th Circuit, which covers Tennessee, Michigan, Kentucky and Ohio, issued a significant Title VII ruling.  In EEOC v. R.G &G.R. Harris Funeral Homes the Court held that discrimination on the basis of transgender and transitioning status is sex discrimination in violation of Title VII.

The EEOC sued the funeral home after it fired an employee, Stephens, who was transitioning from male to female.  It was undisputed that Stephens was fired because he was “no longer going to represent himself as a man” and “wanted to dress like a woman”.  In 2016  a Michigan  District Court dismissed the case based on the Religious Freedom Restoration Act of 1993 (‘RFRA”),  because the employer’s sincerely held religious belief “is that a person’s sex is an immutable God-given gift”.  The EEOC appealed.

In reversing the District Court and rejecting the RFRA defense the Court of Appeals held that Stephens was fired because of her failure to conform to sex stereotypes, in violation of Title VII.   While this type of claim has been recognized under Title VII since 1989 when it comes to men and women not conforming to the traditional stereotypes for their gender ( e.g. “you are not feminine enough”‘; “you dress too masculine”), the 6th Circuit took it a step further with this holding:

Discrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex, and thus the EEOC should have had the opportunity to prove that the Funeral Home violated Title VII by firing Stephens because she is transgender and transitioning from male to female.”

This is a landmark ruling that employers located within the 6th Circuit must adhere to going forward.  If you have questions about how it impacts your business, give us a call.

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Not Every Work Environment Is Hostile

One of the most overused terms in today’s workplace is “hostile work environment”.  Many employees believe their environment is a “hostile work environment” prohibited under applicable law.  But the reality is that simply having a difficult boss or supervisor does not make the environment a hostile work environment under the law.  The recent decision by the Sixth Circuit Court of Appeals in Daniels v. Pike County Commissioners reinforces this point.

Ms. Daniels, who worked as a secretary in the Pike County, Ohio Prosecutor’s office, claimed that Mr. Junk, the Pike County Prosecutor, subjected her to a hostile work environment because of her sex.  The Court rejected her claim because none of the incidents Daniels pointed to were acts of harassment based on her sex.  The Court found that Junk’s treatment of Daniels was not based on his sexual attraction to Daniels or based on a hostility toward females.  Instead, the proof showed that Junk was a difficult boss for both male and female subordinates.

In rejecting Daniels’ claim the Court reiterated that Title VII is not a “general civility code for the American workplace”.  This means that acts of harassment will not be illegal under Title VII or similar state employment laws unless the harassment is based on sex, race or another protected class.  The conduct may, however, be illegal under a state tort law theory.

Employers, if you have a supervisor who is known to be a difficult boss or a “jerk” make sure you investigate any complaints about his or her conduct and take appropriate steps to address it – which may include training and/or discipline.  Just because a supervisor’s conduct may not create a hostile work environment, it could still disrupt your workplace and result in low employee morale, loss of productivity and, potentially, an expensive lawsuit.

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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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A few months ago I wrote a blog post which discussed how companies that use temporary services or subcontractors can, in certain circumstances be held to be the joint employer of the employees of the temporary service or subcontractor.  You can read that blog post here.  Earlier this month the United States Court of Appeals for the 6th Circuit applied the factors I discussed in that blog post to hold that a general contractor for a construction site in Memphis, Tennessee was the joint employer of one of its subcontractors’ employees.

In EEOC and Maurice Knox v. Skanska U.S.A. Building, Inc. the EEOC and Knox sued Skanska alleging racial discrimination and retaliation in violation of Title VII.  Knox was employed by a subcontractor on the construction site named C-1 Inc. (“C-1”).   Despite this fact the EEOC and Knox argued that Skanska was Knox’s joint employer.  The District Court disagreed with the Plaintiffs and granted summary judgment to Skanska.  On appeal the 6th Circuit reversed.

The 6th Circuit held that Skanska was a joint employer because it could “share or co-determine those matters governing essential terms and conditions of employment.”  In making this finding the Court focused on the following facts:

  • Skanska could remove Knox and other C-1 employees from the jobsite if the employee was “incompetent, disorderly or otherwise unsatisfactory”
  • Skanska routinely exercised its ability to direct and supervise Knox’s performance.
  • Skanska set Knox’s hours and daily assignments.
  • Skanska assigned Knox’s supervisors.
  • Skanska responded to any complaints asserted by Knox.
  • Skanska was responsible for responding to any complaints asserted by Knox and did not consult with C-1 about those complaints.
  • Skanska had Knox sign a document on Skanska letterhead setting forth his job responsibilities.
  • Skanska repeatedly removed C-1’s personnel from the jobsite without any challenge from C-1.

The Skanska decision reinforces that when a company exercises the right to control subcontractor and temporary employees the company will most likely be considered a joint employer of those employees.  Employers should keep this in mind when making staffing decisions and, if controlling the temporary employee or subcontractor’s employee is not important, take the appropriate sets to eliminate or minimize the right to control in an effort to avoid a successful joint employer argument.

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Supreme Court Narrowly Defines Supervisor

In a victory for employers yesterday the  U.S. Supreme Court  adopted a narrow, bright-line standard to determine who counts as a supervisor in Title VII harassment suits.

In Vance v Ball State, a 5-4 decision, the Court affirmed summary judgment in a racial harassment suit and held that an employee only counts as a supervisor who can render an employer vicariously liable under Title VII if the employee is empowered by the employer to take tangible employment actions against the victim. These tangible actions include hiring, firing, promoting, reassigning significantly different tasks or causing changes to benefits.  As a result, an employee who merely directs another worker’s day-to-day activities does not qualify as a supervisor in a Title VII harassment suit.

While this is certainly good news for employers, employers should still focus on preventing harassment in the first place.   Adopt a clear policy prohibiting harassment which contains  an effective reporting mechanism and enforce that policy. Train your workforce on what constitutes harassment and how to prevent it and report it in accordance with your policy.  And if a complaint is made, investigate it promptly and thoroughly and take effective corrective action based on the results of your investigation. Remember, an ounce of prevention is worth a pound of cure.

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Fifth Circuit Holds Title VII Protects Nursing Mothers From Being Fired For Expressing Breast Milk

Recently the U.S. Court of Appeals for the Fifth Circuit held that Title VII, as amended by the Pregnancy Discrimination Act,  protects nursing mothers from being fired for lactating or expressing breast milk.  The plaintiff was allegedly fired after asking to use a breast pump at work.  In reaching its decision the Court held that firing someone because of lactation or breast pumping is sex discrimination.

This is a big victory for the EEOC, who brought the case on behalf of the plaintiff.  This win also highlights one of the EEOC’s priorities in its Strategic Enforcement Plan, which is to identify emerging areas in equal employment law, including pregnancy-related issues.

Most employers know that the Fair Labor Standards Act was amended in 2010 to require them to provide both a reasonable break time and a place, other than a bathroom, for an employee to express breast milk for up to a year after a child’s birth.  The Fifth Circuit has now made it clear that Title VII also protects employees who are fired for expressing breast milk.

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Decision-maker’s Lack of Knowledge of Protected Activity Negates $3 Million Retaliation Verdict

In Ferguson v MTSU the Tennessee Court of Appeals negated a $3 Million jury verdict for the plaintiff in a retaliation case because the plaintiff failed to prove that the decision-maker who allegedly retaliated against him had knowledge of the protected activity when the decision  was made.  The plaintiff filed an EEOC Charge and  subsequently a lawsuit alleging race and national origin discrimination, and claimed the supervisor assigned him work outside of his restrictions in retaliation for those protected acts.  A second lawsuit was filed alleging retaliation, and the cases were consolidated for trial. At trial the jury returned a defense verdict on the discrimination claims but awarded the plaintiff $3 Million on his retaliation claims.

The Court of Appeals reversed the jury’s verdict and dismissed the plaintiff’s case.  The Court held that in a  retaliation case under Title VII and the THRA the plaintiff must prove that the person who decided to take the adverse action had knowledge of the protected activity at the time the adverse decision is made.  In so holding the Court of Appeals expressly rejected the argument that “general corporate knowledge” is sufficient to prove the causation element of a retaliation claim.

While this case is a significant victory for employers, (assuming it holds up on appeal) the result does not change the type of review that employers should undertake when any adverse action is proposed against an employee.  Review the proposal thoroughly to make sure the action is warranted, consistent with company policy and that the employee is being treated the same as all other similarly situated employees.  If the employee is known to have engaged in protected activity or is in a known protected class, make sure there is not a connection between the activity or class and the proposed action, and that everyone who has input in the decision is unbiased.

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Where’s the beef? Veganism may be entitled to protection as a religion under Title VII.

Title VII requires employers to reasonably accomodate an employee’s sincerely held religious belief unless doing so would create an undue hardship.  A recent federal court decision in Ohio reminds us that this requirement extends beyond what are typically viewed as mainstream religions.

In Chenzira v. Cincinnati Childrens’ Hospital a nurse refused to be vaccinated for the flu.  She objected on religious grounds because she is a vegan and the flu vaccine is grown in chicken eggs.  The Hospital then fired her.  Ms. Chenzira filed suit and the Hospital moved to dismiss the case on the grounds that veganism is not a religion.

In denying the Motion to Dismiss the Court held that veganism may be entitled to protection as a religion becuase the definition of “religious practices” in the EEOC regulations includes “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of religious views”.   The Court also relied on Ms. Chenzira’s citation of biblical passages supporting veganism, her citation of those passages when she requested an accomodation,  and that many others are vegans.  Since the Court was ruling on a Motion to Dismiss this does not mean that it will find that veganism is a religion after discovery is completed.  The ruling also did not address whether the termination was for the legitimate, nondiscriminatory reason of protecting the safety of patients.

The take away for employers is that non-mainstream beliefs may be entitield to protection as religious beliefs under Title VII and state law.  As a result, if an employee refuses to comply with a work requirement and cites a religious basis for doing so, seek legal counsel for advice.

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