Tuesday, January 26, 2016

New Victories for Transgender Employees

The Equal Employment Opportunity Commission (EEOC) reached a settlement with Deluxe Financial Services, a payment processing company, in a workplace harassment complaint filed by Britney Austin. Ms. Austin was assigned as “male” at birth and presented as male when Deluxe Financial hired her. For many years, she worked for Deluxe Financial without incident and consistently maintained a satisfactory performance level. Eventually, Ms. Austin notified her supervisors that she was transgender, and that she would be transitioning from male to female. Shortly thereafter, Ms. Austin was confronted with hurtful slurs and insults, the intentional misuse of gender pronouns, and was forbidden from using the women’s bathroom.

In other words, Deluxe Financial subjected Ms. Austin to a hostile work environment and disparate treatment in violation of Title VII of the Civil Rights Act of 1964. The EEOC filed suit in the U.S. District Court for the District of Minnesota. After lengthy settlement negotiations, the parties agreed to enter into a three-year consent decree. The consent decree requires that Deluxe Financial issue Ms. Austin a letter of apology, provide a neutral employment reference, pay $115,000 in attorneys’ fees and damages, and make changes to its health benefits plan and employment policies to ensure fair treatment of its transgender employees. 

This case is another step in EEOC’s efforts to ramp up its enforcement of legal protections for transgender employees. In December 2012, the EEOC released its Strategic Enforcement Plan for fiscal years 2013-16, which identified workplace discrimination and harassment of transgender individuals as an emerging national issue and as a high priority for targeted enforcement. This inclusion of transgender protection came on the heels of Mia Macy v. Dep’t of Justice, the first case in which the EEOC recognized gender identity discrimination. Mia Macy was a transgender police detective who had accepted an offer of employment from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). While the background check was being conducted, she advised the Agency that she would be transitioning from male to female. Five days later, ATF revoked its offer, claiming budget restraints. Concerned, Ms. Macy contacted the Agency’s EEO counselor, who informed her that the position had not been eliminated as she had been told, but had been filled by someone who was allegedly further along in the background check than her. The two explanations, both completely contradictory and conveniently timed, provided strong pretextual evidence that the Agency’s real reason for revoking its offer was her transgender status.
At that time, pursuing justice for Ms. Macy was complicated. When she filed her EEO complaint with the Agency, alleging discrimination because of her “gender identity” and “sex stereotyping,” the Agency responded, “since claims of discrimination on the basis of gender identity stereotyping cannot be adjudicated before the EEOC, your claims will be processed according to Department of Justice policy.” The Department of Justice used a different internal system for adjudicating claims of sexual orientation and gender identity discrimination; unsurprisingly, this process did not offer Ms. Macy the same rights and legal protections that are available under Title VII.

The Agency’s interpretation of Ms. Macy’s claim was roundly rejected by the EEOC. The Commission found that Title VII’s “protections sweep far broader than” the Agency’s narrow definition of “sex,” “in part because the term ‘gender’ encompasses not only a person's biological sex but also the cultural and social aspects associated with masculinity and femininity.” To otherwise restrict the meaning of “sex” would ignore critical social complexity and exclude an entire class of individuals.

The EEOC continues to refine protections for transgender employees. In Lusardi v. Dep’t of the Army, the Commission ruled that the intentional use of incorrect gender pronouns and denial of proper restroom access qualified as creating a hostile work environment. However, although progress is being made, there is still a long road ahead. Gender identity discrimination remains a serious economic and social justice issue. Everyone, regardless of gender identity or expression, deserves a workplace free from harassment, hostility, and discrimination. If you have experienced harassment at work on the basis of your transgender status, please do not hesitate to contact the attorneys at Kalijarvi, Chuzi, Newman & Fitch, P.C. for help.

Written by Nina Ren

We have blogged about transgender rights before:

Tuesday, January 19, 2016

EEOC Issues New Guidance on Discrimination Against Muslims As Anti-Muslim Rhetoric Rises

Anti-Muslim rhetoric has risen dramatically in the aftermath of the Paris and San Bernardino terrorist attacks. GOP presidential front-runner Donald Trump said he would require Muslims to register in “databases, as the Nazis registered Jews, and that he could not rule out making Muslims wear special identification. Also, fellow GOP candidate Ben Carson compared Syrian refuges to “rabid dogs. “We are operating in an atmosphere of hysteria and fear,” said Ibrahim Hooper, National Communications Director for the Council on American Islamic Relations. “I have never seen it like this, not even after 9/11.”

Coinciding with the rise in anti-Muslim rhetoric, EEOC Chair Jenny R. Wang issued a statement to “Address Workplace Discrimination Against Individuals Who Are, or Are Perceived to Be, Muslim or Middle Eastern. The statement provided, in relevant part,
America was founded on the principle of religious freedom. As a nation, we must continue to seek the fair treatment of all, even as we grapple with the concerns raised by the recent terrorist attacks. When people come to work and are unfairly harassed or otherwise targeted based on their religion or national origin, it undermines our shared and longstanding values of tolerance and equality for all.
The EEOC also released two documents explaining federal laws which prohibit employment discrimination against individuals who are, or are perceived to be, Muslim or Middle Eastern. As a general overview, Title VII prohibits employers from discriminating against individuals because of their religion in hiring, firing, and other terms and conditions of employment. The Act requires employers to reasonably accommodate the religious practices of an employee or prospective employee, unless to do so would pose an undue hardship to the employer. A reasonable religious accommodation is any adjustment to the work environment that will allow the employee to practice his or her religion. Flexible scheduling, voluntary substitutions or swaps, job reassignments, and lateral transfers are but some examples.

Although these documents are intended to assist employers (and employees) in understanding their rights and responsibilities, the timing also suggests they are reminders to employers that religious discrimination will not be tolerated. This comports with the EEOC’s Strategic Enforcement Plan in which it promised to continue prioritizing issues that may be emerging or developing, and respond swiftly to significant events (e.g., the Paris and San Bernardino attacks) that may impact employment practices in order to prevent their spread.

During the last few years, the EEOC has aggressively pursued religious discrimination cases in all segments of the workforce—e.g., healthcare, hospitality, retail, staffing, manufacturing, and food/beverage services. In that span, the EEOC has recovered more than $4,000,000, plus injunctive and other forms of make-whole relief, through pre-trial settlements, jury verdicts, appellate court victories, and consent decrees. See EEOC, Fact Sheet on Recent Religious Discrimination Litigation (last updated Feb. 19, 2015), available at http://www.eeoc.gov/eeoc/litigation/selected/religious_discrimination_facts.cfm.

In EEOC v. AutoZone, Inc. (Mar. 2012), for example, AutoZone settled with the EEOC in a case in which AutoZone was alleged to have subjected a Sikh employee to harassment when managers disparaged his religion, asked him if he had joined Al-Qaeda and whether he was a terrorist, failed to intervene when a customer referred to him as Bin Laden and made terrorist jokes, and refused to accommodate his religious need to wear a turban and kara (religious bracelet). AutoZone also agreed to enter into a nationwide consent decree requiring it to adopt, implement and distribute an anti-harassment and religious discrimination policy to all employees, and submit reports to the EEOC.

In EEOC v. Mims Distributing (Jan. 2015), the EEOC received a favorable settlement and agreement to enter into a consent decree in a case in which the employer refused to hire an applicant who declined to cut his hair for religious reasons. In EEOC v. Star Transport Inc. (Oct. 2015), the EEOC also announced a jury award of $240,000 to two Muslim truck drivers who were fired from their jobs as over-the-road truck drivers when they refused to transport alcohol because it violated their religious beliefs.

In EEOC v. Abercrombie & Fitch Stores, Inc. (July 2015), the Supreme Court reversed the Tenth Circuit and ruled in favor of the EEOC in a case involving a young woman who wore a hijab or religious headscarf which Abercrombie said, in refusing to hire her, conflicted with its “look” policy. The Supreme Court held that Title VII does not require a plaintiff to prove that the employer had actual knowledge of the individual’s religious beliefs or practices to establish a disparate treatment claim; rather, the plaintiff must only show that the need for a religious accommodation was a motivating factor in the challenged employment decision. The Court further held that an employer’s unsubstantiated suspicion about the need for a potential religious accommodation will suffice if that suspicion motivated the employer’s decision.

The lower courts have already started to apply Abercrombie to religious accommodation cases across the country. For example, in EEOC v. Jetstream Ground Services, Inc.,the District of Colorado allowed the EEOC to proceed to trial on behalf of a class of Muslim women who alleged that the employer failed to accommodate their wearing hijabs and long skirts on the job, failed to hire them, laid them off or reduced their hours, and discriminated against them on the basis of their religion. With respect to Amina Oba, an employee who never requested an accommodation, but was observed by co-workers changing from headscarf and long skirt to the company’s uniform while at work, and who was subsequently laid off, the court relied on Abercrombie in holding that an employee need only show that his or her need for accommodation was a motivating factor in the employer’s decision. EEOC v. Jetstream Ground Services, 2015 WL 5697315, at *10 (D. Colo. Sept. 29, 2015). Denying summary judgment, the court ruled that there was a triable issue of fact as to whether Jetstream knew “or, at the very least, suspected” that the employee desired an accommodation and laid her off to avoid giving her one. Id. at *12-13.

In sum, religious discrimination is a hot topic, and with the recent expansion of religious accommodation rights, employers should reconsider and retool their existing policies, practices, and procedures. We at Kalijarvi, Chuzi, Newman & Fitch, P.C., are ready to help.

Written by Alex Kutrolli.

Wednesday, January 13, 2016

Better whistleblower protection laws can end the “Code of Silence”

Lou Reiter is a former Deputy Chief of Police for Los Angeles. He recently spoke with NPR about the effects of the Code of Silence – in which police refuse to testify about wrongdoing by other police -- on the police force and its perception by the public.

NPR’s journalist, Renee Montagne, asked Reiter, “Recognizing it as a problem is a good start, and fixing it is, of course, an ideal. But specifically, how do you make that happen? Do you have an example of another police force that has done this?” Reiter answered, “You know, I really don't.”

I do. A “Code of Silence” is just a way of rationalizing retaliation against a whistleblower. Some law enforcement officers believe they have a bond with one another that arises from an implicit promise not to get other officers in trouble. That is, not to report their wrongdoing. In agencies where managers uphold the Code of Silence, officers with integrity can find their careers stunted, their duties curtailed and their work subject to close supervision.

Reiter is correct in saying that, “retaliation is real. It’s sinister. It normally hurts an officer so badly that he or she cannot stay with the agency anymore.” The case of Frank Serpico reveals how corrupt police officers can expose a whistleblower to violence just by failing to provide the normal backup officers depend on. Serpico’s case is well portrayed by Al Pacino in the famous 1973 film of the same name.

Since the Code of Silence is a form of retaliation against whistleblowers, the answer is to provide effective remedies to potential whistleblowers. Most federal law enforcement officers are covered by the Whistleblower Protection Act (WPA). (The WPA does not cover legislative agencies, uniformed military or Commissioned officers of NOAA or the Public Health Service, and USPS; the FBI has a separate, weaker, whistleblower protection.)

In 2012, Congress passed the Whistleblower Protection Enhancement Act (WPEA), which significantly strengthened WPA protections for federal employees, including most law enforcement officers. The WPA has no time limit for a whistleblower’s initial complaint to the Office of Special Counsel (OSC). (Although there are time limits for subsequent case processing.)

Our office has represented numerous federal law enforcement officers who reported misconduct by coworkers or superiors.

The complaint process can take longer than one would like. OSC and the MSPB are both clogged with more cases than they are funded to handle. Eventually, federal whistleblowers are entitled to a hearing to prove that their protected disclosures contributed to any adverse personnel action. If they prevail, they are entitled to equitable and compensatory remedies (with no cap).

For state and local law enforcement officers, the picture is more complicated. The First and Fourteenth Amendments guarantee state and local employees freedom to speak on matters of public concern and remedies against superiors who abuse their authority by interfering with this right.

In a controversial 2006 case, however, the Supreme Court said that the First Amendment does not protect disclosures that public employees make as part of their official duties. Garcetti v. Ceballos, 547 U.S. 410 (2006). In Garcetti, the Supreme Court initially heard the case with Justice O’Connor, but did not issue a decision before she retired. The Court then took the unusual step of rehearing the case with newly appointed Justice Alito. He cast the deciding vote to deny protection to an assistant prosecutor who reported an officer’s perjury to a court.

In Garcetti, the Court did give directions to those who believe Ceballos should have been protected. “The dictates of sound judgment are reinforced by the powerful network of legislative enactments—such as whistle-blower protection laws and labor codes—available to those who seek to expose wrongdoing,” the majority said. The Court was apparently unaware of the weaknesses and gaping holes in our web of whistleblower protections.

Many states have whistleblower protection laws, including California, Colorado and New Jersey . Some do not. In thirteen states, the  Law Enforcement Officers’ Bill of Rights (LEOBR) protects officers accused of misconduct, rather than the whistleblower. Maryland’s General Assembly may consider repealing its LEOBR law this year.

Many public employees have other protections. Those that belong to unions are likely to be protected from any discharge that is without “just cause.” Similarly, many state and local governments have civil service laws that promise continued employment during good behavior.

In sum, legal protections for law enforcement whistleblowers are uneven. The hole created by Garcetti in our web of whistleblower protections could be filled if Congress would pass a comprehensive whistleblower protection law to cover all American workers whenever they report any wrongdoing. With better whistleblower protections, better enforcement of our whistleblower protections, and time, we can end the Code of Silence.