Tag Archives: Title VII

Important Notice for Employers Required to Submit EEO-1 Report

The Equal Employment Opportunity Commission issued a notice this morning that, due to the recent partial lapse in appropriations, the deadline to submit EEO-1 data will be extended until May 31, 2019. The EEO-1 is an annual survey that requires certain employers to file the EEO-1 report. The EEO-1 Report, Standard Form 100, is a compliance survey that requires company employment data to be categorized by race/ethnicity. As set forth on the EEOC’s website, all companies that meet any of the following criteria are required to file the EEO-1 report annually:

  • The company is subject to Title VII of the Civil Rights Act of 1964, as amended, with 100 or more employees; or
  • The company is subject to Title VII of the Civil Rights Act of 1964, as amended, with fewer than 100 employees, if the company is owned by or corporately affiliated with another company and the entire enterprise employs a total of 100 or more employees; or
  • The company is a federal government prime contractor or first-tier subcontractor subject to Executive Order 11246, as amended, with 50 or more employees and a prime contract or first-tier subcontract amounting to $50,000 or more.

Details instructions for the 2018 EEO-1 filers, including the exact date of the survey opening, will be forthcoming. Filers should refer to the EEO-1 website in the coming weeks for updates on the new schedule. Also, see the EEOC’s FAQ for further information.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
(941) 552-2558

Setting the Stage for Supreme Court Review of Whether Title VII Prohibits Sexual Orientation Discrimination

Three circuit courts of appeal have issued opinions on whether Title VII prohibits sexual orientation discrimination. The Second Circuit (New York, Connecticut, and Vermont) and Eleventh Circuit (Alabama, Georgia, and Florida), relying on past precedent, have held that Title VII does not prevent discrimination based on sexual orientation. However, on April 4, 2017, the Seventh Circuit (Indiana, Illinois, and Wisconsin) issued a conflicting opinion, becoming the first circuit to hold that sexual orientation discrimination is indeed prohibited. Now, with the circuits split on this issue, the stage is set for the U.S. Supreme Court to be asked to resolve this conflict. However, recent reports opine that the employer in the Seventh Circuit case will not appeal the decision to the Supreme Court. If the employer does not appeal, another case will have to make its way through the lower courts before the divergence of opinion can take center stage at the Supreme Court.

Until the battle is fought before the Supreme Court, Florida employers should keep in mind that while Florida falls under the jurisdiction of the Eleventh Circuit Court of Appeals, and thus, arguably sexual orientation discrimination is not currently prohibited by Title VII, many municipalities, including the City of Sarasota and City of Miami, have local ordinances that prohibit such discrimination. Further, the Equal Employment Opportunity Commission, the agency charged with enforcing Title VII, takes the position that discrimination on the basis of sexual orientation constitutes sex discrimination and is therefore prohibited.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
(941) 552-2558

A Religious Accommodation Decision that Makes Sense

The best line I have read in a religious accommodation case in the last two years is from a decision out of the United States District Court for the Southern District of Indiana New Albany Division earlier this month: “Title VII is not a license for employees to perform only those duties that meet their private approval.” When I read this, I wanted to pump my arm in the air like Judd Nelson’s character at the end of The Breakfast Club. In all seriousness, employers are now tip-toeing around the workplace, in part, as a result of the proliferation of reasonable accommodation cases and the often absurd outcomes that result from the legal decisions. For instance, in the Supreme Court’s 2015 Abercrombie decision, the Court said that even if the employee did not request an accommodation, the employer is required to know that an accommodation is necessary. True, that in the context of the facts of Abercrombie, the decision made some sense (the plaintiff in that case wore a hijab to the interview), but its application to other factual scenarios can border on the absurd and is tantamount to a “mind reading” requirement.

I do digress. Back to the recent decision. The S.D. of Indiana’s decision rejecting a religious accommodation claim made by a former employee terminated for insubordination when she refused to perform essential functions of her job finally added some degree of common sense to the avalanche of religious accommodation cases. In its decision, the S.D. of Indiana found that in order to meet her initial burden of proof, the former employee had to prove that a sincerely held religious belief conflicted with her duties. The case before the court involved a former employee that was terminated from her position as a deputy clerk when she refused to process forms allowing same-sex couples to marry. The court found that the duties of the deputy clerk position were ministerial duties consisting of certifying that the information on the application is accurate and that, under state law, the applicants are qualified to marry. The court found that although the former employee had a sincerely held religious belief, the purely administrative duties relating to the processing of marriage licenses did not conflict with her religious beliefs, as the processing of the forms was not forcing her to make a showing of religious or moral approval of the marriage. The court pointed out that she was not being forced to attend ceremonies, say congratulations, offer a blessing, or pray with the couples. The court opined that the employee’s subjective perception of a conflict between her beliefs and her duties “is not, in and of itself, conclusive.” The court went on to opine that to allow the employee’s subjective perception to dictate whether there is a conflict would result in the requirement having no meaning at all. Let’s call this a win for the Gipper (at least for now).

If you would like to learn more about religious accommodation in the workplace, you can read about it here.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

The Customer is Not Always Right…

Most employers understand Title VII’s requirement to provide a workplace free of unlawful harassment and discrimination. Some employers may not be aware that this obligation extends beyond co-workers’ harassment to include customers’ mistreatment of employees. Recently a situation arose on an Alaska Airlines flight that demonstrated how this obligation to provide a workplace free of unlawful harassment and discrimination extends to customers.  During a female flight attendant’s life-vest demonstration, a male passenger yelled, “ooh, sexy.” When asked by the flight attendant to be respectful, the passenger responded “C’mon, I’m just playing with you.” Shortly thereafter, Alaska Airlines required the passenger to leave the plane.

When an employer becomes aware of harassment on the basis of a legally protected characteristic (sex, disability, religion, race, color, etc.), the employer is required to take prompt remedial action to protect its employees – even if the harasser is a customer.

It should be noted that despite the offensive nature of the passenger’s conduct, that conduct alone would not constitute sexual harassment creating liability for the employer. However, when combined with other conduct the flight attendant might face (from anyone, that day or over time), failure to act in the employee’s defense could certainly give rise to a harassment claim and employer liability. The EEOC advises, “Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.”

For harassing and offensive conduct to rise to the level of unlawful harassment (sexual harassment, racial harassment, etc.), the conduct must relate to a protected characteristic or conduct, and enduring the conduct must become, expressly or impliedly, a condition of employment or be so severe or pervasive that a reasonable person would consider the work environment to be intimidating, hostile, or abusive. The law also protects employees from retaliation relating to complaints and investigations.

Defending these claims is expensive. More and more employers are stepping in earlier to prevent them altogether. In this case, Alaska Airlines made a strong statement in favor of protecting employees, dissuading future conduct of this type, and prevented future claims. When the situation is not as time-sensitive, a quick call to an employment lawyer may help employers frame a diplomatic approach that fully protects the employee and prevents harassment.

Kimberly Page Walker
kwalker@williamsparker.com
(941) 329-6628

The EEOC Issues a New Fact Sheet Explaining Religious Discrimination

The EEOC recently issued a new fact sheet designed to help younger workers understand the laws prohibiting religious discrimination. https://lnkd.in/dipfh-4.  This fact sheet provides a good summary of the basics that each employer should know and provides several examples of how to address certain situations that may arise in relation to an employee’s religious practices and beliefs and an employer’s consideration of reasonable accommodations. This fact sheet can be found on the EEOC’s youth outreach website, which is designed to provide information to younger workers about employment discrimination. https://lnkd.in/dUS2gm4.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

Increased Fines for Employers Failing to Comply with EEO Posting Requirements

Title VII of the Civil Rights Act of 1964 and other civil rights statutes require that covered employers post notices describing equal employment opportunity laws and how employees and applicants can file a complaint for perceived violations of those laws. The required notice “Equal Employment Opportunity is the Law” poster must be posted in a conspicuous place where other notices to employees and job applicants are customarily located. For those employers that are required to post the notice, generally those with 15 or more employees, the civil fines for failing to do so have been increased from $210 to $525 per violation.

The required notice for covered employers is available here:
https://www1.eeoc.gov/employers/poster.cfm

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558