Can You Take Back a Job Offer if He Becomes a She?
The Situation: You are interviewing a number of candidates for a vacant position. One particular candidate stands out and he seems like he will be the best fit. After you offer him the job, he tells you that he is a transgender and will be presenting as a female by the time he begins to work. Can you rescind your job offer?…READ MORE
Does Harassment Based on Sexual Orientation Count as Sex Discrimination?
The Situation: One of your supervisors has been making offensive comments to a gay employee about his sexual orientation fairly frequently. The employee complains to you, but you don’t take it seriously and thus, don’t take any action. The employee then quits. Could you face a possible claim under Title VII?…READ MORE
Drop and Give Me Thirty (Or Fourteen If You’re a Woman)—Is This Discrimination?
The Situation: Physical fitness is a necessary component for certain jobs in your organization and so you develop a physical fitness assessment for prospective employees. Based on a thorough analysis of gender norms and abilities, you determine specific standards—which are different for men and women. A male is unable to complete one of the tasks and claims the differing standards constitute discrimination. Could he have a claim under Title VII?…READ MORE
Transgender Employee Fired for Clear Policy Violation—Is Employer Still At Risk For Title VII Claim?
The Situation: An employee informs you that she is going through a gender transition and then a few months later you catch her sleeping on the clock. After you terminate her (just like you have terminated others who engaged in similar conduct), she claims that you discriminated against her based upon her sex in violation of Title VII when you terminated her based on her transgender status. Are you protected from this type of claim based on the clear policy violation supporting the termination?…READ MORE
Can a Temp From a Staffing Company Bring a Title VII Claim Against You?
The Situation: You engage a temporary staffing company to provide you with some temporary laborers to help during a particularly busy time period. Under the arrangement with the staffing company, you pay the staffing company only and they pay the temps. You are not responsible for setting the pay rate, paying the taxes, or getting the I-9s from these workers. One of them says they were subjected to unlawful harassment. Could you face a Title VII claim even though these temps are employees of the staffing company?…READ MORE
Differing Discipline for Facebook Comments May be Discrimination
In today’s digital culture, employers are well advised to have social media policies which hopefully prevent employees from posting things that reflect poorly on the employer. But the question of how to apply some of these policies is unfamiliar territory. For example, how do you determine what kinds of comments warrant discipline? And how do you make sure you are imposing the same discipline for the same type of behavior? A TV station in Louisiana recently faced this very issue. A former reporter claimed that he was discriminated against when he was fired because of a comment he made on Facebook. He argued that other employees (of a different race and gender) were not fired even though they too had made some inappropriate comments. The district court recently denied the employer’s motion for summary judgment as to the discrimination claim, finding that the employee had presented enough evidence to go to trial on his race and gender discrimination claims. Redford v. KTBS, LLC, et al., Case No. 5:13cv3156 (September 28, 2015).…READ MORE
EEOC Cracks Down on Pre-Hire Employment Assessments
Earlier this week, the EEOC announced that Target has agreed to pay $2.8 million dollars to resolve a charge of discrimination related to the use of employment assessments that disproportionately screened out applicants for certain positions based on race and sex. The EEOC took the position that the tests violated Title VII because they were not sufficiently job-related and consistent with business necessity. The EEOC also found that a psychological assessment was a pre-employment medical examination that violated the ADA and that Target had violated record-keeping requirements by failing to maintain sufficient records to assess the impact of its hiring procedures. As a part of the resolution, Target has agreed to discontinue use of these assessments, make changes to its applicant tracking systems, perform a predictive validity study for its other assessments for adverse impact based on race, ethnicity and gender, and to provide the EEOC with a summary of these studies on an annual basis. Finally, Target agreed to bring on an outside consultant to provide at least two hours of training once a year to all personnel involved in the development of the assessments. The lesson here is that employers need to be careful about any assessments used to screen out applicants for employment. Just because they don’t directly address issues of race, ethnicity, gender, or disability does not mean that they don’t expose an employer to claims under Title VII or the ADA.…READ MORE
Stray Remarks by De Facto Decisionmaker Support Discrimination Claim
When is an employer liable for “stray” remarks? How connected do the stray remarks need to be to the adverse employment action? Earlier this summer, the Second Circuit reversed a district court’s award of summary judgment to an employer on a discrimination claim involving stray remarks in a denial of tenure case where the remarks were made by the de facto decisionmaker within the same school year as the denial of tenure, clearly suggested racial bias and were about the plaintiff’s qualifications as a teacher. Tolbert v. Smith, et al., No. 14-1012 (2d Cir. June 24, 2015).…READ MORE
EEOC Rules– Sexual Orientation Discrimination Equals Sex Discrimination under Title VII
On July 15, 2015, the EEOC clarified that, at least for claims made against the federal government, all complaints of discrimination based on sexual orientation constitute sex discrimination claims under Title VII. Baldwin v. Foxx, Secretary, Dept. of Transportation, EEOC Appeal No. 0120133080. The case involved David Baldwin, an air traffic controller who filed an EEO complaint against the Federal Aviation Administration, claiming that he was subjected to discrimination on the basis of his sex and retaliation for his prior protected activity. Baldwin claimed that he was not chosen for a permanent position as a front line manager because he is gay, pointing to numerous negative comments made by his supervisor about his sexual orientation (like “we don’t need to hear about that gay stuff” in response to Baldwin talking about a trip with his partner and being told that he was a distraction when he talked about his male partner).…READ MORE
Transgender former police officer states a claim under Title VII-but fails to show sufficient evidence of discrimination
Last week, the district court ruled that although discrimination based on transgender status was a cognizable claim under Title VII, the plaintiff had failed to demonstrate that the rejection of her application to be part of a volunteer mounted patrol was discriminatory. Finkle v. Howard County, Maryland, Case No. SAG-13-3236 (D. Md. June 12, 2015).…READ MORE