1. Trending Issues in Harassment and Discrimination Law
Laura H. Harshbarger

2. EEOC Charge Statistics
EEOC received 90,000 charges in FY 2015
One third of those charges included an allegation of harassment
EEOC’s initiated settlements alone resulted in employers paying $164.5 million to complainants in FY 2015

3. EEOC Task Force on Harassment in the Workplace (June 2016)
The Statistics for Private Employers:
45% of EEOC Charges allege sex harassment
34% of EEOC Charges allege race harassment
19% of EEOC Charges allege disability harassment
15% of EEOC Charges allege age harassment
13% of EEOC Charges allege national origin harassment
5% of EEOC Charges allege religious harassment

4. Sexual harassment as between men and women
The number of men filing sexual harassment claims has increased
1997: 11.6% filed by men
2015: 17.6% filed by men

5. EEOC Task Force on Harassment in the Workplace (June 2016)
Prevalence of Harassment
25% to 85% of women report having experienced sexual harassment in the workplace
7% to 41% of openly LGB individuals report having experienced harassment in the workplace
45% of transgender individuals reported being repeatedly and intentionally called by the wrong pronoun
40% to 70% of individuals report race/ethic harassment
Intersectional harassment

6. EEOC Task Force on Harassment in the Workplace (June 2016)
Employee Responses to Harassment
Avoid the harasser 33% to 74%
Downplay the incident 54% to 73%
Ignore or endure it 44% to 70%
Report to employer 6% to 13%
Why the underreporting?
Fear of retaliation

7. EEOC Task Force on Harassment in the Workplace (June 2016)
Risk Factors for Harassment
Highly Homogenous Workforces
Highly Culturally Diverse Workforces
“Coarsened Social Discourse” in Larger Society
Young Workforce
Workforces with a few “High Value” Employees
Workplaces with Significant Power Disparities
Workplaces where Customer Satisfaction is Key
Monotonous Work
Isolated or Decentralized Workforces

8. EEOC Task Force on Harassment in the Workplace (June 2016)
EEOC’s Policy Recommendations
A clear expectation of prohibited conduct, including examples;
Clear assurance of non-retaliation for complainants and witnesses;
A clearly described complaint process that provides multiples avenues of complaint;
Assurance of confidentiality to the extent possible;
A prompt, thorough and impartial investigation;
Assurance that the immediate and proportionate response will be taken for harassment or lesser offensive behavior

9. EEOC Task Force on Harassment in the Workplace (June 2016)
EEOC’s Training Recommendations
Training should be customized to the workplace;
Training should be done by live, interactive trainers;
Training should focus on what is and is not harassment;
Training for middle managers and frontline supervisors is critical;
Training should be visibly supported at the highest levels; and
Employers should consider Workplace Civility training and Bystander Intervention Training

10. Practical Takeaways
The EEOC’s definition of “harassment” is a low bar and getting lower
Any rude or abusive behavior is fertile ground for a harassment complaint, valid or not
Review your policy
Critically consider your training initiatives
Do your policy and response protocol have credibility in your workforce? If not, what do you need to do to change that?

11. Sexual Harassment and Sex Discrimination
NYS Human Rights Law now extends to ALL employers, regardless of size, with respect to sexual harassment
NYS Human Rights Law now allows complainants who prove sex discrimination to recover their attorneys’ fees

12. Sex Discrimination – Pay Equity
New York State Pay Equity Act
Prohibits differential in pay between employees of the opposite sex for work requiring equal “skill, effort and responsibility” and performed under “the same working conditions”

13. Sex Discrimination – Pay Equity
Differential may be based on:
a seniority system;
a merit system;
a system that measure quality or quantity of production; or
a bona fide factor other than sex, such as education, training or experience

14. Sex Discrimination – Pay Equity
A “bona fide factor other than sex” must be legitimate and consistent with business necessity
The burden is on the employer to prove the bona fide factor other than sex
A factor other than sex is not bona fide if:
there is a disparate impact; and
the employer could have achieved the same business purpose without the gender disparate impact

15. Right to Discuss Wages
NYS Pay Equity Act gives employees the right to inquire about, discuss and disclose their compensation
The law allows employers to establish reasonable rules concerning the time, place and manner of such inquiry, disclosure and discussion BUT a written rule cannot be targeted at these kinds of inquiries, disclosures and discussions
National Labor Relations Act (“NLRA”) similarly protects employees’ right to discuss their wages

16. Sex Discrimination – Pay Equity
Penalty for an NYS Equal Pay Act violation:
300 % of wages owed

17. EEOC’s Proposed EEO-1 Rule
EEOC has proposed a rule that would require employers to include wage data in EEO-1 reports
Pay data would require disclosure of W-2 earnings over past 12 months
Pay data would be collected by sex, race, ethnicity by job category
If adopted, effective September 2017

18. Pregnancy Discrimination

19. Young v. United Parcel Service, Inc.
U.S. Supreme Court case
Decided March 2015
Peggy Young was a part-time driver
Placed on lifting restriction early in pregnancy
UPS required drivers to lift up to 70 lbs.
UPS did not offer an accommodation and did not allow her to work during her pregnancy

20. UPS accommodated other drivers BUT
Those drivers had on-the-job injuries
Those drivers had permanent ADA-covered disabilities
Those drivers had lost their DOT certifications
Fourth Circuit Court of Appeals ruled in favor of UPS, finding that UPS’ categories were neutral and non-discriminatory on the basis of pregnancy

21. Young’s position: if any employee with a similar condition (lifting restriction) had been accommodated, then a pregnant employee must also be accommodated
UPS’ position: an employer need not accommodate a pregnant employee if she does not fall within neutral categories (i.e., ADA disability, workers’ compensation injury, loss of DOT certification)

22. U.S. Supreme Court’s Decision
An employee alleging a discrimination based on a failure to accommodate has to show:
That she requested and was denied an accommodation
That the employer accommodated others with similar restrictions
Employer can rebut by showing that it has a legitimate non-discriminatory reason for not accommodating in this particular situation
May be related to unique aspects of the jobs or individuals’ circumstances

23. U.S. Supreme Court Ruling
Employee can defeat summary judgment if she shows that the employer’s policies create a “significant burden” on pregnant workers and that the employer’s stated reasons for the policy do not justify the burden

24. New York Human Rights Law Guidance
New York State Human Rights Law Guidance
“Pregnancy-related conditions need not meet any definition of disability to trigger an employer’s obligation to accommodation under this Law. Any medically-advised restrictions or needs related to pregnancy will trigger the need to accommodate, including such things as the need for extra bathroom breaks, or increased water intake”

25. Practical Takeaways
Requests for alterations in job duties related to pregnancy will need close attention
Is this a situation in which non-pregnant workers have been or would be accommodated?
If so, there will be a heavy burden on the employer to prove why a pregnant employee cannot be similarly accommodated
Lesser considerations, such as breaks, will be expected

26. Sex Discrimination and Leave
Female employees who give birth are entitled to 16 weeks of paid leave. Male employees who become new parents are not eligible for this benefit.
Lawful or unlawful?
Female employees are entitled to leave during their period of physical disability following childbirth and then 4 weeks of parental leave at full pay. Male employees are entitled to 4 weeks of parental leave at full pay
A parental leave policy that offers an enhanced leave benefit for the primary caregiver, regardless of gender

27. New Protected Characteristics – New York State Human Rights Law
Familial Status – protects parents and guardians of minors
   “(a) any person who is pregnant or has a child or is in the process of securing legal custody of any individual who has not attained the age of eighteen years, or    (b) one or more individuals (who have not attained the age of eighteen years) being domiciled with:    (1) a parent or another person having legal custody of such individual or individuals, or    (2) the designee of such parent”

28. New Protected Characteristics – New York State Human Rights Law
Associational status – protects against discrimination based on one’s association or relationship with a person in a protected class
“Where the term “unlawful discriminatory practice” is used in the Human Rights Law, it shall be construed to prohibit discrimination against an individual because of that individual’s known relationship or association with a member or members of a protected category covered under relevant provisions of the Human Rights Law”

29. Note that familial status and associational status are non-discrimination obligations, not accommodation obligations

30. Sexual Orientation Discrimination
The current Title VII law in the Second Circuit:
Simonton v. Runyon, 232 F.3d 33, 36 (2d Cir. 2000): "Title VII does not proscribe discrimination because of sexual orientation.” Price Waterhouse applies only to gender nonconformity; sexual orientation cannot be “bootstrapped” into Title VII “because not all homosexual men are stereotypically feminine, and not all heterosexual men are stereotypically masculine. But, under this theory, relief would be available for discrimination based upon sexual stereotypes.”
However, the EEOC has filed lawsuits based on its sexual orientation-as-sex-stereotyping theory
The New York Human Rights Law prohibits discrimination on the basis of sexual orientation

31. Transgender Discrimination: Title VII
The EEOC’s position is that transgender status is protected by Title VII
Macy v. Dep't of Justice, EEOC Appeal (2012), the EEOC ruled that discrimination based on transgender status is sex discrimination in violation of Title VII
Lusardi v. Dep't of the Army, EEOC Appeal (2015), the EEOC rules that individuals have the right to restroom use based on gender identity

32. Transgender Discrimination: Title VII
EEOC Fact Sheet: Bathroom Access Rights for Transgender Employees Under Title VII (May 2016)
denying an employee equal access to a restroom corresponding to the employee's gender identity is sex discrimination;
an employer cannot condition this right on the employee undergoing or providing proof of surgery;
an employer cannot avoid the requirement to provide equal access to a common restroom by restricting a transgender employee to a single-user restroom instead (though the employer can make a single-user restroom available to all employees who might choose to use it); and
the discomfort of others is not a justification for denying restroom use based on gender identity

33. Transgender Discrimination: Title VII
The law in the Second Circuit is developing
The Second Circuit found in 2000 that Title VII does not prohibit sexual orientation discrimination
However, in March 2016, a lower district court found that transgender identity is protected by Title VII. Fabian v. Hospital of Central Connecticut

34. Transgender Discrimination: New York State Human Rights Law
NYS Human Rights Law prohibits sexual orientation discrimination
NYS Division of Human Rights new regulation states that the Human Rights Law protects on the basis of gender identity
“sex” includes gender identity and transgender status
“gender dysphoria” is a disability that must be accommodated

35. Practical Takeaways
Update your harassment and discrimination policies and EEO statements to extend to the new protected categories
Train supervisors and managers
Consider training employees on particularly sensitive or controversial inclusion issues before it becomes a “live” issue in your workplace

36. Harassment Investigations: A Lesson in Thoroughness
Vasquez v. Empress Ambulance Services, Inc. (2nd Circuit, August 29, 2016)
Male employee made several verbal sexual advances to female employee, including sending her an explicit picture of himself
Female employee made an internal complaint to H.R.
Male employee produced evidence in the form of text messages from the female employee showing that the female employee was an eager and active participant in the sexting

37. The investigation committee called the female in, told her what they had seen and fired her for sexual harassment

38. Here’s where it gets interesting
Come to find out, the male employee fabricated the evidence against the female
The Second Circuit found that the employer could be liable for retaliation because the employer was negligent in its investigation and therefore acted on the male employee’s retaliatory motive

39. Practical Takeaways
A good, fair and thorough investigation is critical
Be cautious of text, and other evidence that can be fabricated
Give employees the opportunity to present contradictory evidence
You don’t have to be right, but you do have to be reasonable

40. Open Discussion