Sexual Harassment Can Happen Anywhere

Even in the skilled, highly-educated workforce. The Hustle reports on recent harassment allegations coming from the tech industry in Silicon Valley.

For those employees enduring sex harassment, speak up. File a written complaint with human resources detailing the harassment. Request that an investigation be performed and that disciplinary action be taken against the harasser. Your employer cannot retaliate against you for filing the complaint.

For employers, draft and enforce an anti-harassment policy. Train your supervisors and workforce. Immediately investigate complaints of harassment, even if they come from habitual complainers and even if they implicate top performers or executive officers. Take prompt, appropriate action based upon the results of the investigation.

If you have questions about how to proceed, how to file a complaint, or how to investigate a complaint, we can help. Call us today.

Seventh Circuit holds that sexual-orientation discrimination violates Title VII

Title VII of the Civil Rights Act of 1964 makes it unlawful for employers to discriminate on the basis of a person's race, color, religion, national origin, or sex. For many years, courts around the country ruled that sex discrimination did not include sexual-orientation discrimination. The Seventh Circuit Court of Appeals, based in Chicago, Illinois, is now the first federal appellate court to hold otherwise.

The plaintiff, Kimberly Hively, is openly-lesbian and a former part-time adjunct professor at Ivy Tech Community College in South Bend, Indiana. Between 2009 and 2014, she unsuccessfully applied for at least six full-time positions. In July 2014, her part-time contract was not renewed. She first filed a charge of discrimination with the EEOC and later filed suit in federal court, claiming that she was denied full-time employment because of her sexual orientation.

The district court dismissed her claims, finding that that Title VII did not protect against sexual orientation discrimination. Last year, the Seventh Circuit, in a 2-1 panel decision, affirmed the district court’s dismissal.

The Seventh Circuit, however, agreed to rehear the case en banc, and yesterday reversed years of precedent and the district court’s dismissal, allowing Hively to proceed with her claims.

First, the Court found merit in Hively’s comparative argument: all other things being equal and changing only Hively’s sex, would she been treated the same way if she were a man? That is, would she have been denied full-time employment if she were a man dating or married to a woman? The answer: no. “This describes,” the Court stated, “paradigmatic sex discrimination.”

Second, the Court addressed Hively’s associational argument: if discrimination on the basis of the race of a person with whom an employee associates constitutes race discrimination, why is discrimination on the basis of the sex of a person with whom an employee maintains a sexual relationship not sex discrimination? The answer: it is.

In reaching this answer, the Court looked at various developments in the law governing Title VII over the last several decades. For instance, Title VII’s prohibition against sex discrimination has been held to include a prohibition of sexual harassment, same-sex harassment, and even gender stereotyping. According to the Court, Hively’s case “represents the ultimate case of failure to conform to the female stereotype: she is not heterosexual.”

The Court also looked at various Supreme Court decisions resolving the rights of same-sex couples. In 2003, the Supreme Court found unconstitutional a Texas statute that criminalized consensual homosexual intimacy; in 2013, it found unconstitutional the part of the Defense of Marriage Act that excluded a same-sex partner from the definition of a “spouse” in other federal statutes; and in 2015, in held that the Equal Protection and Due Process Clauses of the 14th Amendment protect the right of same-sex couples to marry.

How can these cases possibly be reconciled with the counterargument that Title VII historically prohibited sex discrimination but not sexual orientation discrimination? The answer: they can’t.

In March of this year, the Eleventh Circuit held that Title VII does not prohibit discrimination on the basis of sexual orientation. Our coverage of that case is here. With the circuit split now created by the Seventh Circuit’s decision, the issue will likely make its way to the Supreme Court.

Federal Court of Appeals Holds that Title VII Does Not Prohibit Sexual Orientation Discrimination

On March 10, 2017, the 11th Circuit Court of Appeals, which hears appeals from the federal district courts in Alabama, Florida, and Georgia, held that Title VII of the Civil Rights Act of 1964 does not prohibit discrimination on the basis of sexual orientation.

In Evans v. Georgia Regional Hospital, the plaintiff, Jameka Evans, alleged that she was terminated because she was a lesbian and did not conform to gender norms. She asserted claims for discrimination on the basis of gender non-conformity and sexual orientation. The Court dismissed the latter, noting that it was bound by a 1979 case, Blum v. Gulf Oil Corp., which held that Title VII did not prohibit "discharge for homosexuality."

Judge William Pryor, who many will recall was considered by President Donald Trump to fill the late-Justice Antonin Scalia's seat on the U.S. Supreme Court, stated in a concurring opinion that Congress, not the Courts, should designate sexual orientation as a protected class under Title VII, just as race, sex, gender, and national origin are explicitly protected.

In contrast, Judge Robin Rosenbaum, in her dissent, stated that sexual orientation already is protected by Title VII's prohibition against sex discrimination. "[W]hen a woman alleges ... that she has been discriminated against because she is a lesbian, she necessarily alleges that she has been discriminated against because she failed to conform to the employer's image of what women should be--specifically, that women should be sexually attracted to men only."

Judge Rosenbaum's position closely aligns with the position the EEOC has taken since 2015, and that other federal district courts around the country have taken in denying motions to dismiss sexual-orientation discrimination claims under Title VII.

We anticipate that Ms. Evans will file a motion to have her appeal heard by the entire 11th Circuit and that, at some point in the very near future, this issue will make its way to the Supreme Court.

EEOC 2016 Year-End Report

The U.S. Equal Employment Opportunity Commission has released in year-end report for 2016, which, in part, provides statistical data regarding the discrimination charges filed with the agency.

Here in Kentucky, there were 911 total charges filed, which consisted of 325 disability discrimination claims, 323 race claims, 273 sex (including sexual harassment) claims, and 233 age claims. Within the 911 total charges, nearly 41% -- 371 of them -- included a retaliation component.

Kentucky's filings generally correspond with the national statistics. Across the country, 91,503 charges were filed, of which 35% included a race discrimination claim, 31% included a disability claim, 29% included a sex claim, and 23% included an age claim. Further, of the total charges, 46% included a retaliation claim.

Two statistics in particular stand out in this year's report. The EEOC received 1,768 charges of sexual orientation discrimination, and it resolved 1,649 of them, either through the reconciliation process or litigation. Both figures are record highs, reports the National Law Journal (sub. req.). The EEOC, of course, has taken the position -- contrary to the vast majority of federal courts -- that sexual orientation discrimination is prohibited by Title VII. The recent trend, however, looks rosy for the LGBTQ community, as more and more federal courts are, upon a more thorough analysis, finding that sexual orientation discrimination is included in Title VII.

No matter how you look at it, these figures identify a lot of disgruntled if not mistreated employees.

If you're an employee and you believe you've been harassed, discriminated against, or retaliated against, we can help. The initial consultation is free and, if we accept your case, you won't pay anything unless we obtain a recovery for you.

If you're an employer and you want to learn about ways you can reduce the number of EEOC charges, or employment-related lawsuits generally, we can help. If you need someone to conduct training for your management team or workforce, or simply assist with state and federal compliance, we can help. Call us today.



2017 Labor & Employment Cases - U.S. Supreme Court Edition - UPDATE

On January 13, 2016, the Supreme Court of the United States granted cert to multiple petitions seeking an answer to a seemingly simple question: whether class-action waivers in employment arbitration agreements, otherwise subject to the Federal Arbitration Act, violate the National Labor Relations Act. You can find our prior coverage of these petitions here.

The NLRA was enacted in 1935 to protect the rights of employees, to encourage them to collectively bargain, and to put a halt to certain private sector labor and management practices. The Act applies to most private-sector employers, but not to federal, state, and local governments.

The Supreme Court has not been shy in recent years in expressing its broad deference to the Federal Arbitration Act. See, e.g., DirecTV, Inc. v. Imburgia, 577 U.S. ___ (2015) (holding that class-action waivers in consumer arbitration agreements were enforceable); AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011) (holding that class action waivers are enforceable under the FAA). The bans presently before the Court, however, unlike the bans in consumer arbitration agreements, arguably violate employees' rights to concerted action and activities permissible under the NLRA.

Whether the DirecTV and Concepcion decisions portend the Court's decision in these new cases is uncertain, but we'll be following the Court closely and we'll provide updates to you as they become available.

If you have any questions about how these decisions can or will affect you, your business, or your workforce, give us a call today at (859) 263-7884.



2017 Labor & Employment Cases - U.S. Supreme Court Edition

It's early January -- happy new year! -- and an appropriate time to take a look at several of the labor and employment cases now pending in the Supreme Court.

First, there's McLane Co. Inc. v. EEOC, No. 15-1248. The issue: whether a district court's decision to quash or enforce an EEOC subpoena should be reviewed de novo (as the Ninth Circuit does) or deferentially (as eight other federal circuit courts of appeals do).

McLane is a national distribution company; one of its employees, Damiana Ochoa, filed a gender discrimination charge with the EEOC after she was unable to meet the physical standards McLane imposed after she returned from maternity leave. While investigating the charge, the EEOC issued subpoenas to McLane and subsequently sued McLane to enforce the subpoenas. The federal district court denied part of one of the subpoenas, and the EEOC appealed to the Ninth Circuit, which instead of deferring to the district court and determining whether its decision was an abuse of discretion or clearly erroneous, ruled in favor of the EEOC.

The Supreme Court has set oral argument for February 21, 2017. Here's a link to the Court's docket and the parties' briefs.

While not the flashiest issue to be decided by the Supreme Court this term, the result will have a tangible impact on employees and employers. If the Court rules in McLane's favor, parties are likely to see more appeals, especially from the EEOC, which will increase litigation time and expenses, because now they will get a proverbial second bite at the apple, another chance to argue in favor of their position in the court of appeals. If the Court reverses the Ninth Circuit, parties are more likely to accept the district court's opinion and move forward because an appeal is more likely than not to be unsuccessful.

Next, there's a series of four cert petitions that all essentially ask whether an arbitration agreement can effectively bar employees from pursing workplace claims as a class action. These cases from the Second (Patterson v. Raymours Furniture Co.), Fifth (D.R. Horton, Inc. v. NLRB), Seventh (Epiq Systems Corp. v. Lewis), and Ninth (Ernst & Young, LLP v. Morris) Circuits.

The Court has not yet ruled on the cert petitions and, as such, no briefing schedule or oral arguments have been set.

In 2012, the NLRB held that individual arbitration agreements were unlawful because they violated Section 7 of the National Labor Relations Act, which protects employees' right to improve their working conditions through court proceedings. The Fifth Circuit Court of Appeals rejected the NLRB's ruling, but the Seventh Circuit has accepted it. This circuit split is now ripe for the Supreme Court's review.

These cases have significant implications for employees' ability to file class action and collective action cases against employers for all kinds of wrongful workplace conduct.

If you'd like a copy of the cert petitions filed by the parties regarding class action waivers, or if you'd like to discuss these cases in general or how they apply to you as an employee or an employer, please contact Lockaby PLLC today.

Matt Lockaby Named Kentucky Super Lawyer!

Lockaby PLLC is pleased to report that its founder and managing partner, Matt Lockaby, has again been named a Kentucky Super Lawyers "Rising Star." Named to the "Rising Star" list every year since 2013, the designation is awarded to the top 2.5% of Kentucky attorneys under the age of 40 based upon peer nominations, peer evaluations, and professional achievements. Congratulations, Matt!



A Salute to Our Veterans!

In the midst of the current hostile and divisive political climate, let us all find comfort in our shared and mutual respect for the brave men and women who have served our country. On this Veterans Day, Lockaby PLLC salutes and pays tribute to the members of our armed forces. We celebrate and honor your service, courage, and sacrifice.

Federal Court Rules that Sexual Orientation Discrimination is Protected by Title VII

Title VII of the Civil Rights Act of 1964 expressly prohibits discrimination on the basis of race, national origin, religion, and sex. While the statute does not reference sexual orientation, the EEOC has taken the position, in light of Supreme Court opinions holding that gender stereotyping constitutes unlawful discrimination, that Title VII also prohibits sexual orientation discrimination.

A federal district court in Pittsburgh, Pennsylvania, has agreed with the EEOC, denying an employer's motion to dismiss the EEOC's lawsuit alleging that it discriminated against a former employee on the basis of his sexual orientation. See U.S. Equal Employment Opportunity Comm'n v. Scott Medical Health Center, P.C., 2:16-cv-00225-CB (W.D. Pa. Nov. 4, 2011).

The court held that Title VII's ban on sex discrimination includes discrimination based upon "sex stereotypes" -- that is, preconceived notions of how a man or woman should think or act. "There is no more obvious form of sex stereotyping," the court stated, "than making a determination that a person should conform to heterosexuality."

In July 2015, the EEOC concluded that sexual orientation discrimination is a prohibited form of sex discrimination under Title VII. See Baldwin v. Department of Transportation, Appeal No. 0120133080. There, the EEOC proffered three reasons why Title VII's ban on sex discrimination necessarily included sexual orientation discrimination: (1) sexual orientation discrimination involves treating employees less favorably because of their sex because sexual orientation is inherently related to sex; (2) sexual orientation discrimination is rooted in non-compliance with sex stereotypes and gender norms, and employment decisions based on such stereotypes and norms have been found to be prohibited sex discrimination; and (3) sexual orientation discrimination punishes employees because of their close personal association with members of a particular sex, such as marital and other personal relationships.

To be sure, no judgment or jury verdict has been rendered, nor has there been any finding of discrimination. But the EEOC now has an opportunity to make its case.

If you would like a copy of the opinion or would like to discuss how the opinion might impact you, as an employee or an employer, contact us today at (859) 263-7884.