On March 7, 2018, the United States Court of Appeals for the Sixth Circuit reversed a district court decision and ruled in favor of a transgender employee who claimed she was terminated by her employer based on her sex pursuant to Title VII of the Civil Rights Act of 1964. Aimee Stephens, formerly known as Anthony Stephens, worked as a funeral director at R.G. and G.R. Harris Funeral Homes, Inc. The funeral home had a dress code policy, requiring male employees to wear suits and female employees to wear skirts and business jackets. The funeral home provided free suits to the male employees, but did not (at least initially) provide female employees with any clothing to comply with the company’s dress code policy. Stephens informed the funeral home that she would be transitioning from male to female and therefore would begin to dress to be in compliance with the company’s dress code for females. Shortly thereafter, Continue reading
The U.S. Court of Appeals for the Second Circuit recently held that Title VII prohibits discrimination on the basis of sexual orientation in Zarda v. Altitude Express, No. 15-3775 (2d Cir. 2018). With this decision, the Second Circuit joins the Seventh Circuit as the second court to recognize sexual orientation as a protected class under federal law.
Donald Zarda was a skydiving instructor who claimed that he was terminated from his position after he told a client that he was gay. He sued his former employer and its owner, alleging that Title VII and New York law prohibit discrimination based on sexual orientation. The lower court granted partial summary judgment in favor of the employer on the ground that Title VII does not protect gay and lesbian employees. Zarda died in a skydiving accident prior to trial, so Continue reading
By Julie Laemmle
The Fourth Circuit recently issued a decision in EEOC v. Maryland Insurance Administration, No. 16-2408 (4th Cir. Jan. 5, 2018), joining the Third, Sixth and Tenth Circuits in finding that the statutory language of Section 206(d) of the Equal Pay Act (“EPA”) requires an employer to provide evidence that the employer’s affirmative defenses do in fact explain the wage disparity; it is not enough for the employer to possibly explain the wage disparity.
The Fourth Circuit denied summary judgment because there were fact issues for trial as to whether the salary difference between the male and female employees was due to factors other than gender. The Court explained the parties’ respective evidentiary burdens as follows:
- The employee must show that the employer paid different wages to an employee of the opposite sex for equal work on jobs requiring equal skill, effort and responsibility under similar working conditions.
- The employee does not have to establish that males, as a class, receive higher wages than females as a class; rather, the employee must demonstrate that there is discrimination in pay against the employee with respect to only one employee of the opposite sex.
- It is irrelevant to the employee’s initial burden that other employees of the opposite sex perform substantially identical work as the employee, but make less money than her.
- If the employee meets the initial burden and proves that a disparity exists, the employer must prove that the disparity was justified by one of four affirmative defenses: a seniority system; a merit system; a pay system based on quantity or quality of output; or, a disparity based on any factor other than gender.
- If an employer fails to establish one or more of these affirmative defenses, the employee will win summary judgment. In contrast, it is a heavy burden for the employer to establish one of the four affirmative defenses as a matter of law.
Take away for employers: Several circuits require that employers explain the reason for the wage disparity in terms of concrete facts, not in terms of what may have caused the wage disparity. Wage disparity claims are gaining steam and are in the news across the nation. Employers are wise to review their wage practices now to ensure that wage disparity does not exist because once these claims are brought, the employers’ evidentiary burden will be heavy.
Last week, a Detroit funeral home filed a brief with the Sixth Circuit arguing that it could fire a transgender employee who refused to follow its sex-specific dress code. According to the funeral home, allowing the employee (who was transitioning from male to female) to wear women’s clothes at work — namely, a skirt suit — would violate the religious beliefs of the home’s owner.
Last year, at the district court level, the Court said that the Religious Freedom Restoration Act (“RFRA”) shielded the funeral home from liability because the termination stemmed from its owner’s devout Christian worldview. In other words, the Court held that the funeral home was entitled to a religious exemption under RFRA and, therefore, did not violate federal employment discrimination law. In making its ruling, the Court reasoned, in part, that transgender people are not protected by federal anti-bias law.
The EEOC appealed this ruling and filed its brief in February. The funeral home has now asked the Court to affirm the holding that Title VII does not protect transgender people because the meaning of “sex” when Title VII was passed did not include the concept of gender identity. The funeral home also remains adamant that RFRA provides a legal defense for its enforcement of its sex-specific dress code.
The case is EEOC v. RG & GR Harris Funeral Homes, Case No. 16-2424.
At a job interview, a candidate is often asked: “What’s your current or most recent salary?” Usually, this question is feared. After all, a low figure could limit the candidate’s starting pay, but a high number could make the candidate seem expensive. Now, in a growing number of states and cities, the question is off limits, as employers face legislation that bars them from asking job candidates about their salary history or benefits.
Proponents of the new legislation argue that banning the salary question is necessary to ensure pay equity for women. The argument is that by basing future salaries on previous wages, employers have been perpetuating the earnings divide. In other words, because employers have historically relied heavily on salary history, the gender pay gap has Continue reading
According to a new study and report from PayScale.com, working women in Kentucky earn 22.2% less than men, with the median pay for a male worker being $48,900, compared with $38,100 for a female worker. This “gender pay gap” — as it is often termed — is slightly smaller than the pay gap nationwide.
The report states that across the 50 states and the District of Columbia, women earned 23.7% less than men in 2016, with a median pay of $58,000 for male workers and $44,300 for female workers. These figures are representative of the raw gender pay gap — which looks at a median salary for all men and women, regardless of job type or worker seniority.
The same study and report also took into account factors such as years of work experience, education, company size, job title, and job level to determine a “controlled” gender pay gap. In so doing, it found that Continue reading
The City of Florence (“Florence” or “the City”) recently entered into a proposed consent decree, pending court approval, to resolve a discrimination lawsuit the Justice Department filed regarding two City female police officers. The lawsuit, filed last month, alleges both officers were discriminated against based on pregnancy and disability grounds pursuant to Title VII of the Civil Rights Act of 1964 and Title I of the American with Disabilities Act (“ADA”). According to the complaint, Florence female police officers Lyndi Trischler and Samantha Riley requested light duty in 2014 when both were unable to perform their duties as patrol officers due to their pregnancies. Officer Trischler also suffered from complications resulting from a diagnosed high-risk pregnancy and requested light duty as a reasonable accommodation.
Florence’s light duty policy at the time of Ms. Trischler’s and Ms. Riley’s requests was limited to employees with on-the-job injuries only. The City also required that employees with non-work related illnesses, injuries, or conditions provide information that establishes they have “no restrictions” prior to returning to work. Florence denied both officers’ requests and required them to take leave instead.
This was the first lawsuit filed by the Justice Department challenging an entity’s light duty policy following the U.S. Supreme Court’s ruling in last year’s Young v. UPS case. In Young, UPS had a similar ‘employees injured on the job’ policy as Florence. Peggy Young was a UPS pickup and Continue reading