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In Anderson v. Postmaster General, the United States Postal Service (“USPS”) fired Dipping Anderson, a postal service police officer (“PPO”), for allegedly sleeping on the job.  Ms. Anderson sued the USPS, claiming that USPS had retaliated against her for having filed previous complaints with Equal Employment Opportunity Commission (“EEOC”).   After a seven-day bench trial, the district court concluded that Ms. Anderson was not discriminated against but the decision to terminate her employment, rather than impose lesser discipline, was in retaliation for her EEO complaints.  USPS appealed to the First Circuit, seeking to reverse the district court’s decision.

Ms. Anderson worked for USPS for eighteen years and, for the first sixteen years, was never disciplined.  In 2011, Ms. Anderson took time off work for a work-related ankle injury.  In May 2011, when Ms. Anderson reported back to work with her doctor’s permission, her supervisor refused to allow her to work for no apparent reason.  Ms. Anderson ultimately returned to her post and requested pre-complaint counseling, in which she alleged race discrimination.  In June 2011, Ms. Anderson attended an EEO conference with her superiors.  The conference, however, did little to resolve any issues between them, because in 2012, Ms. Anderson made several more requests for pre-complaint EEO counseling.  One of Ms. Anderson’s superiors was so angry that she had made complaints of discrimination, that he told a co-worker, “I want her gone. I want her gone before I retire.”

Finally, on June 12, 2013, USPS suspended Ms. Anderson without pay for sleeping on the job.  Even though Ms. Anderson denied sleeping on duty and USPS’s investigation made no factual finding of the incident, on September 9, 2013, USPS terminated her employment.  In the end, the Court credited Ms. Anderson’s version of events, for there was evidence showing that Ms. Anderson was using her cell phone during the time in question.

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In EEOC v. Wal-Mart Stores Inc., on behalf of Paul Reina—a deaf, visually impaired, and intellectually disabled, cart pusher—the EEOC sued Wal-Mart Stores Inc. (“Wal-Mart”) under the Americans with Disabilities Act (“ADA”) for failure to accommodate Mr. Reina’s request to work with a “job coach.”  Wal-Mart moved for summary judgment, which on December 18, 2018, a federal district court denied on the grounds that disputed issues of material fact remained as to whether Mr. Reina was a “qualified” individual and “whether allowing a permanent job coach was a reasonable accommodation.”

In 1998, Mr. Reina began working at Wal-Mart as a cart pusher.  In 1999, Wal-Mart allowed Mr. Reina several accommodations, including the ability to work with a job coach.  The job coach assisted in several ways, including watching for oncoming cars, helping Mr. Reina stay focused on tasks, prompting Mr. Reina to help a customer if a customer needed help loading their car, and steering longer lines of carts.  Over the years, Mr. Reina worked with several different job coaches and, with their assistance, Mr. Reina’s performance ratings were generally positive.

Working with a job coach did not go without incident.  In 2012, a shift manager reported an altercation between Mr. Reina and a job coach.  Caught on tape, the job coach was seen physically abusing Mr. Reina.  The police said the report was unfounded because there were no physical injuries.  This incident, however, made Mr. Reina’s direct manager question Mr. Reina’s need for a job coach and asked Mr. Reina to provide medically supported information about his condition and reasonable accommodation.  Mr. Reina’s physician confirmed that Mr. Reina needed a job coach to do Mr. Reina’s “seeing and hearing.”  What happened after that is disputed.  The manager claimed that he asked for more information but Mr. Reina denied that the manager made such request, instead telling him to wait to hear from him.  Mr. Reina was not placed on a schedule or contacted and lost access to Wal-Mart’s job portal.

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By Leah Kessler and Crismelly Caso

Martin Luther King Jr. Day (or “MLK Day”) is a federal holiday observed on the third Monday of January each year to celebrate the life and achievements of Martin Luther King Jr., an influential American civil rights leader.

Dr. King’s sustained political activism has influenced and improved our country in countless ways, including the passage of the Civil Rights Act of 1964 (“CRA”), which in turn created the Equal Employment Opportunity Commission (“EEOC”)—a federal agency that administers and enforces civil rights laws against workplace discrimination.  As a result, in 2017, 84,254 individuals filed charges with the EEOC, seeking legal recourse against employers subjecting them to work environments in which they were demeaned and dehumanized.  He was closely involved in the passage of the National Labor Relations Act—which established the right of all workers to form unions and bargain collectively with their employers regarding their working conditions and wages.

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Leah Kessler

Enacted in 1990 by President George H. W. Bush, the American with Disabilities Act (the “ADA”) is a federal civil rights law prohibiting discrimination on the basis disability.  The ADA defines disability as “a physical or mental impairment that substantially limits one or more major life activities, a record of having such an impairment, or being regarded as having such an impairment.”  With its passage, for the first time, Congress recognized that physical and mental disabilities in no way diminish a person’s right to fully participate in all aspects of society, and curbed prejudice, antiquated attitudes, and societal and institutional barriers that people with physical or mental disabilities frequently face.  As one of the most comprehensive pieces of civil rights legislation, the ADA ensures that people with disabilities have the same opportunities as everyone else.

Title I of the ADA (“Title I”) addresses disability discrimination in the workplace, helping individuals with disabilities access the same employment opportunities and benefits available to people without disabilities.  An important component of the ADA—and a feature that is unique among other civil rights laws, including the Civil Rights Act of 1964—is its requirement that employers provide reasonable accommodations to qualified applicants or employees.  A “reasonable accommodation” is a change that accommodates employees with disabilities so they can do their job without causing the employer “undue hardship.”  Title I also establishes guidelines for the reasonable accommodation process and addresses medical examinations and inquiries.  Title I applies to employers with at least 15 employees.

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Leah Kessler

This summer, we reported on the Second Circuit’s decision to review en banc its holding in Zarda v. Altitude Express, Inc., where the Second Circuit had affirmed the dismissal of the plaintiff’s sexual orientation discrimination claims brought under Title VII of the Civil Rights Act of 1964 (“Title VII”) on the grounds that Title VII does not cover sexual orientation discrimination. On Monday, the Second Circuit broke with precedent and reversed that decision, finding that Title VII’s prohibition against sex discrimination includes discrimination on the basis of sexual orientation.

While Title VII forbids discrimination in the workplace based on race, color, sex, religion, and national origin, the statute does not explicitly prohibit sexual orientation–based discrimination. This has historically left many employees vulnerable to discrimination because of their sexuality: No federal law explicitly forbids discrimination against LGBT people in the workplace, local laws differ considerably from state to state, and the U.S. Supreme Court has never addressed whether Title VII covers sexual orientation discrimination. While, under the Obama administration, the Equal Employment Opportunity Commission (EEOC)—the government agency that interprets and enforces Title VII—made clear that it views sexual orientation discrimination as a violation of Title VII, the EEOC’s interpretations don’t have legal force in federal court, and courts have typically dismissed Title VII sexual orientation claims in the past.

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Earlier this year, we reported on the Eleventh Circuit’s decision in Evans v. Georgia Regional Hospital affirming the dismissal of a former security guard’s claims that her employer had discriminated against her because she is a lesbian and did not conform to gender stereotypes. This Monday, December 11, 2017, the U.S. Supreme Court declined to review the Eleventh Circuit’s ruling in Evans, leaving unanswered the question of whether Title VII covers sexual orientation discrimination.

Plaintiff Jameka Evans, who is a lesbian, worked at an Atlanta regional hospital as a security officer. She was open about her sexual orientation with her coworkers and dressed in a masculine manner, wearing the men’s security guard uniform, men’s shoes, and a short haircut. According to Evans’s complaint, the hospital discriminated against her because of her sexual orientation and nonconformity with gender stereotypes by denying her equal pay, harassing her, physically assaulting her, and targeting her for termination, then retaliated against her after she complained about the discriminatory treatment.

Evans brought sex and sexual orientation discrimination claims in the U.S. District Court for the Southern District of Georgia under Title VII, which is a federal statute that protects employees against discrimination on the basis of sex, race, color, national origin, and religion.  The district court dismissed Evans’s sexual orientation discrimination claim, holding that Title VII “was not intended to cover discrimination against homosexuals,” and Evans appealed the ruling to the Eleventh Circuit.

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On October 5, 2017, U.S. Attorney General Jeff Sessions issued a memo to the heads of all federal government agencies and all U.S. attorneys, stating that the U.S. Department of Justice (DOJ) is now taking the position that Title VII of the Civil Rights Act of 1964 does not prohibit discrimination on the basis of gender identity or transgender status. The memo reverses the DOJ’s previous stance on the issue and runs contrary to the position taken by the Equal Employment Opportunity Commission (EEOC), as well as various federal appellate and district courts.

While Title VII explicitly prohibits discrimination on the basis of sex, there has been heated debate in recent years over whether that prohibition includes discrimination against transgender workers. The status of legal protections for transgender employees is complicated: no federal law explicitly forbids discrimination against transgender people in the workplace, state and city employment protections vary widely, and the U.S. Supreme Court has yet to address the question of whether Title VII covers gender identity­–based discrimination. The EEOC views discrimination against transgender people as discrimination based on sex and therefore a violation of Title VII, but the EEOC’s interpretations of Title VII are not legally binding, and federal appellate and district courts have differed in their applications of the statute to transgender workers.

Until last week, the DOJ’s position on Title VII’s applicability to transgender people was consistent with that of the EEOC. Under the Obama administration, in December 2014, former U.S. Attorney General Eric Holder issued a DOJ memo stating that Title VII’s prohibition against sex discrimination encompassed discrimination on the basis of gender identity, as such discrimination unlawfully takes into account “sex-based considerations.” Last week’s memo, however, reverses that position. Sessions characterized the reversal as “a conclusion of law, not policy,” stating that, while Title VII “expressly prohibits discrimination ‘because of…sex,’” it does not prohibit discrimination “based on gender identity per se because the statute “does not refer to gender identity” explicitly. Sessions justified this distinction by claiming that the word “sex” is “ordinarily defined to mean biologically male or female,” and stated that, under the DOJ’s new interpretation, transgender people are covered by Title VII if they are discriminated against based on whether they are “biologically male or female,” but not if they are discriminated against specifically because they are transgender.

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Owen H. Laird

The Harman Firm blog has run several stories over the past year about the evolving case law concerning sexual orientation discrimination under Title VII of the Civil Rights Act.  Last week, a plaintiff in a sexual orientation discrimination case in the Eleventh Circuit, Evans v. Georgia Regional Hospital, requested that the United States Supreme Court take up the issue.

To recap: Title VII is one of the foundational federal anti-discrimination statutes; it protects employees against discrimination on the basis of sex, race, color, national origin, and religion.  Sexual orientation is not one of the protected statuses enumerated in Title VII.  In 2016, however, the U.S. Equal Employment Opportunity Commission (“EEOC”) – the federal agency tasked with administering Title VII – filed two lawsuits asserting sexual orientation discrimination claims under Title VII.  This was a major change, as both the EEOC and nearly every federal court had previously taken the position that sexual orientation discrimination was not prohibited under Title VII.

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Last week, on July 6, 2017, the U.S. District Court for the District of Minnesota granted summary judgment in favor of defendant in EEOC v. North Memorial Health Care, finding that a Minnesota hospital had not violated Title VII of the Civil Rights Act of 1964 (Title VII) when it withdrew a nurse’s conditional employment offer after she requested a religious accommodation. The court held that the act of requesting a reasonable accommodation did not, in and of itself, constitute protected activity under Title VII. Consequently, North Memorial’s withdrawal of plaintiff’s job offer, as a matter of law, could never give rise to a Title VII retaliation claim. This decision contradicts the Equal Employment Opportunity Commission’s (EEOC) guidance, which includes requests for religious accommodations as protected activity.

Emily Sure-Ondara, the plaintiff in North Memorial, is a nurse and a practicing Seventh Day Adventist (a Protestant Christian denomination). In November 2013, Sure-Ondara was recruited for a registered nurse position at North Memorial. She applied for the job, and, after a series of successful interviews, North Memorial extended her a conditional offer of employment. According to the terms of the conditional job offer, Sure-Ondara was scheduled to work the night shift—11:00 p.m. to 7:00 a.m.—and weekends, every other weekend.

Upon receiving her proposed schedule, Sure-Ondara contacted North Memorial’s Human Resources (HR) to request a religious accommodation. As a Seventh Day Adventist, Ms. Sure-Ondara observes the Sabbath on Saturdays and was consequently not able to work on Friday nights due to her religious obligations. HR responded that the North Memorial union agreement required all nurses to work every other weekend and that, if Sure-Ondara would not be able to work the proposed schedule, the hospital might “need to offer the position to another candidate.” Sure-Ondara told HR that she would “make it work” and offered to either trade her Friday night shifts with another nurse or—if she could not find a substitute—come in to work anyway, despite her religious obligations.

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By Harrison C. Paige

On April 18, 2017, the U.S. Circuit Court of Appeals for the Second Circuit affirmed the U.S. District Court for the Eastern District of New York’s decision in Zarda v. Altitude Express, dismissing Donald Zarda’s sexual orientation discrimination claims brought under Title VII of the Civil Rights Act of 1964 (“Title VII”). In reaching its decision, the Second Circuit relied on its 2000 decision in Simonton v. Runyon, where the court held that Title VII does not protect against discrimination based on sexual orientation. However, on May 25, 2017, the Second Circuit granted en banc review in Zarda, signaling that the Second Circuit may be ready to reexamine Simonton and revisit its position on Title VII sexual orientation discrimination claims.

In Simonton, Dwayne Simonton, a postal worker, was harassed because of his sexual orientation. The harassment was so severe that Simonton suffered a heart attack as a direct result of the abuse. While the Second Circuit’s decision noted the severity of the harassment and rebuked the behavior, the court nonetheless held that Title VII’s prohibition against discrimination based on “sex” does not include discrimination based on sexual orientation and dismissed Mr. Simonton’s Title VII sexual orientation discrimination claims. The precedent set by Simonton has prevented countless individuals from bringing sexual orientation discrimination claims under Title VII, leaving individuals stranded in their search for justice.

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