Laura C. Monaco
Laura C. Monaco

This week, the EEOC filed its first two federal lawsuits that frame allegations of sexual orientation-based harassment and discrimination as claims of unlawful “sex discrimination” under Title VII of the Civil Rights Act of 1964.

In EEOC v. Pallet Companies the EEOC alleges that an employee’s night-shift manager harassed her because of her sexual orientation by making repeated offensive comments (sometimes accompanied by sexually suggestive gestures), such as “I want to turn you back into a woman” and “I want you to like men again.”  According to the Complaint, the employee was discharged after she complained about her manager’s comments to another supervisor and the Human Resources department.  The EEOC makes similar allegations in EEOC v. Scott Medical Health Center.  There, a supervisor allegedly harassed an employee by making repeated anti-gay comments and vulgar statements about the employee’s sexual orientation.  The employee claims that he was constructively discharged after the company refused to take any corrective action in response to his complaints.

In both lawsuits, the EEOC articulates three legal theories in support of its claim that the alleged sexual orientation harassment constitutes unlawful sex discrimination under Title VII.  First, sexual orientation discrimination “necessarily entails” treating an employee less favorably due to his or her sex and, therefore, the employee’s gender unlawfully motivated the alleged harassment.  Second, the alleged harassment stemmed from the employee’s failure to conform to the harasser’s “sex stereotypes and norms.”  Third, the harasser displayed both general objections to the idea of individuals having romantic associations with others of the same sex, as well as a specific objection to the employee’s close, loving association with a same-sex partner.

Although these are the first lawsuits the EEOC has filed on the grounds of sexual orientation discrimination as “sex discrimination” under Title VII, the agency has actually raised these same three legal theories before.  In July 2015, the EEOC issued Baldwin v. Department of Transportation, an agency determination concluding that allegations of sexual orientation discrimination necessarily state a claim of unlawful sex discrimination because (1) the alleged discrimination would not have occurred but for the employee’s sex, (2) the challenged treatment was based on the sex of the people the employee associates with, and/or (3) the alleged conduct was premised on the fundamental “sex stereotype, norm, or expectation that individuals should be attracted only to those of the opposite sex.”

The EEOC’s new lawsuits attacking sexual orientation discrimination represent just one facet of the agency’s recent efforts to address emerging and developing issues – one of the six national priorities identified in its Strategic Enforcement Plan for fiscal years 2013 to 2016.  In addition to focusing on sexual orientation discrimination, the EEOC also recently filed federal lawsuits alleging unlawful sex discrimination against transgender individuals.  As the EEOC intensifies this focus, employers should review their antidiscrimination policies to determine whether LGBT employees have the same protections as employees in other protected categories, and should consider expanding their training programs to ensure they encompass issues relating to sexual orientation, gender identity, and transgender discrimination.  Employers should also remain mindful of state and local legislation that has increasingly expanded to prohibit sexual orientation or gender identity discrimination in employment.

By: Jeffrey M. Landes and Susan Gross Sholinsky

The presentation slides and the recording for the webinar – Creating and Maintaining a Lawful Internship Program – are now accessible for your viewing.  If you would like to review, please contact Kiirsten Lederer to obtain instructions. 

During this timely and important webinar, we discussed how to minimize both your organization’s liability and the risk of wage and hour lawsuits. Specifically, participants walked away with answers to the following questions:

  • What are the best practices for recruiting and hiring interns, and what critical language should you include (or avoid) in offer letters, employment contracts, and other communications?
  • What assignments are appropriate for interns, and what tasks must you prevent interns from doing?
  • How does the Fair Labor Standards Act apply to interns?
  • What is the best way to handle various forms of remuneration (money, academic credit, company discounts, etc.) for interns?
  • How do the rules of for-profit and non-profit companies differ (and what rules apply to public-sector employers)?
  • How do child labor laws affect internships?
  • What are best practices for organizations—before, during and after an internship program?
  • Do company policies apply to interns?
  • What rules should you consider if you would like to hire an intern on a full-time basis in the future?
  • When does workers’ compensation or other insurance kick in, and how should you handle unemployment insurance?
  • What common blunders should you avoid when setting up school internship programs?
  • What ethical considerations apply when creating an internship program?

We look forward to your participation in future EBG educational programs.  Please click here for a list of upcoming webinars/events that may be of interest to you or your colleagues.

 

 

Our colleagues Michelle Capezza, Jeffrey M. Landes, and Susan Gross Sholinsky will host Epstein Becker Green’s retail roundtable summit from 12:00 p.m. – 2:00 p.m. on May 21. Join us for an open discussion among retail industry executives. The summit will be devoted to retail industry labor and employment issues that general counsel and human resources executives are facing.

Topics to include:

  • Legal, logistical, ethical, and other factors to consider when creating and implementing internship programs
  • Ramifications of newly-enacted state and local laws on handbook policies and general operating procedures
  • Legal considerations surrounding the creation and implementation of wellness programs
  • Analysis of severance agreements in light of recent changes to applicable law and challenges by governmental agencies

Click here to read more about the roundtable summit.

For additional information, please contact Kiirsten Lederer at 212/351-4668 or klederer@ebglaw.com.

 Tuesday, April 30, 2013

 12:00 p.m. – 1:00 p.m. EDT/ 9:00 a.m. – 10:00 a.m. PDT

To register, please click here.

Please join Epstein Becker Green’s Labor & Employment and Employee Benefits practitioners as they review the Affordable Care Act and its ongoing impact on retail employers and their group health plans and programs.

U.S. government agencies are moving quickly to implement the Affordable Care Act. Rules have been released over the past few months concerning participation in health benefit exchanges; the 90-day waiting period limitation; employer responsibility penalties; discrimination based on pre-existing conditions; and expanded employment-based wellness programs.

This webcast will provide an update on the implementation of the law, including planning for 2014 and beyond, and will focus on how the law will impact retail employers both large and small, and what they should do now to plan for it.

During this program, Epstein Becker Green practitioners will discuss:

• The structure of the law and basic concepts affecting retail employers
• The Affordable Care Act implementation timeline
• Critical employer decision making and planning for 2014
• New developments

Presenting Epstein Becker Green Attorneys:

Michelle Capezza, Member, Employee Benefits
Gretchen Harders, Member, Employee Benefits
Jeffrey M. Landes, Member, Labor and Employment

Registration Is Complimentary and Reservations Are Limited. Don’t Miss This Opportunity!

To register, please click here.