Articles Posted in Title VII

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Edgar M. Rivera, Esq.

On March 26, 2018, the U.S. District Court for the Northern District of Illinois granted summary judgment in favor of the defendant in Westbrook v. Illinois Department of Human Services, dismissing the hostile work environment claims brought by Velma Westbrook against her former employer, the Illinois Department of Human Services (IDHS). Ms. Westbrook, an African-American security therapy aide, alleged that a patient repeatedly made racially derogatory comments and once tried to attack her. The court held that, due to the nature of Ms. Westbrook’s job, the patient’s offensive comments and behavior were not sufficiently severe or pervasive to alter the conditions of Ms. Westbrook’s employment, meaning that Ms. Westbrook could not sustain a hostile work environment claim under Title VII of the Civil Rights Act of 1964 (“Title VII”).

In 2001, Ms. Westbrook began working as a security therapy aide for IDHS’s forensic treatment programs, which house and provide treatment for individuals who have been found not guilty by reason of insanity in criminal court. As a security therapy aide, Ms. Westbrook’s job duties included documenting residents’ inappropriate behavior, de-escalating resident behavior in potentially dangerous situations, and preventing residents from harming themselves or others. At the beginning of her employment at IDHS, Ms. Westbrook received training on how to deal with disruptive residents, restrain combative residents, and defend herself against residents who became aggressive, and she testified that she knew when she took the job that she would be dealing with mentally ill individuals. Over the course of her nearly 10-year employment at IDHS, Ms. Westbrook observed patients assault others on a regular basis, and she regularly worked with patients who said hurtful or offensive things to staff members.

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Edgar M. Rivera, Esq.

On March 16, 2018, in Chauca v. Abraham, the Second Circuit vacated a district court’s denial of a plaintiff’s request for a jury instruction on punitive damages for pregnancy discrimination under the New York City Human Rights Law (NYCHRL). The Second Circuit explained that the lower court had erred in applying the federal test because the New York State Court of Appeals, on certified question, had expressly rejected the application of the federal standard for punitive damages under the NYCHRL. The case was remanded for further proceedings consistent with the opinion.

The Harman Firm, LLP, reported on Chauca v. Abraham on November 20, 2017. In our post “New York Court of Appeals Sets Punitive Damages Standard for NYCHRL Claims”, we explained how the New York State Court of Appeals set the standard for punitive damages awards in claims brought under the NYCHRL. The New York State Court of Appeals, in keeping with the New York State common law standard, held that the NYCHRL entitles a plaintiff to punitive damages “where the wrongdoer’s actions amount to willful or wanton negligence” or “recklessness” or involve “a conscious disregard of the rights of others or conduct so reckless as to amount to such disregard.”

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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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Today, the Second Circuit Court of Appeals issued a landmark decision in Zarda v. Altitude Express, Inc., breaking with precedent and holding that Title VII of the Civil Rights Act of 1964 prohibits sexual orientation discrimination. The court found that Title VII’s sex discrimination provision covers discrimination on the basis of sexual orientation, writing that it is “impossible for an employer to discriminate on the basis of sexual orientation without taking sex into account.” The decision, which makes the Second Circuit the second circuit court to arrive at such a ruling, means that LGBT New Yorkers are now protected by federal law against sexual orientation discrimination in the workplace.

We’ll post a blog exploring this decision in more detail later this week, and the Second Circuit’s opinion can be found here. If your employer has discriminated against you based on your sexual orientation, contact The Harman Firm, LLP.

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By Owen Laird

Employees across the country are protected from discrimination by three main federal laws: Title VII of the Civil Rights Act of 1963 (Title VII) protects against discrimination based on race and color, national origin, sex, and religion, while the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA) protect against discrimination based on disability and age, respectively. Workers in New York City, however, enjoy the protections of one of the most expansive anti-discrimination statutes in the nation: the New York City Human Rights Law (NYCHRL), a city law that is extensive as well as adaptive to their needs.

In addition to those federally protected characteristics listed above, the NYCHRL provides additional protection against sexual orientation, gender identity, marital status, and partnership status discrimination (to name a few). Protection against sexual orientation discrimination and gender identity discrimination is essential as these characteristics are not protected by other statutory regimes, and New Yorkers cannot rely on federal laws to provide this security.

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Leah Kessler

On the third Monday of January each year, we observe Martin Luther King Jr. Day, an occasion to remember, reflect on, and do our best to promote the vision for which Martin Luther King Jr. fought and died. Yet, as a nation, our remembrance of Dr. King’s work often ignores (or, perhaps, those with the power to write history, decided to elide) some of the core goals and values of his activism—among them, his commitment to anti-poverty work, labor organizing, and workers’ rights, issues he viewed as inextricable from his civil rights activism.

While U.S. states and employers now observe Martin Luther King Jr. Day, this was not accomplished easily or without resistance. While President Ronald Reagan officially recognized Martin Luther King Jr. Day as a U.S. holiday in 1983, he initially opposed the holiday (citing “cost concerns”), despite a petition to Congress with more than six million signatures in favor of the holiday. Though President Reagan ultimately passed Martin Luther King Jr. Day into law, it was not actually observed until three years later, and many states continue to resist doing so; in fact, the holiday was not officially observed in all 50 states until 2000. Even today, several states—including Alabama, Mississippi, and Virginia—still choose to “combine” Martin Luther King Jr. Day with observances of holidays recognizing Confederate generals Robert E. Lee and Stonewall Jackson.

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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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Last week, on November 20, 2017, in Chauca v. Abraham, the New York State Court of Appeals set the standard for punitive damages awards in claims brought under the New York City Human Rights Law (NYCHRL). The New York  Court of Appeals, in keeping with the New York State common law standard, held that the NYCHRL entitles a plaintiff to punitive damages “where the wrongdoer’s actions amount to willful or wanton negligence” or “recklessness” or involve “a conscious disregard of the rights of others or conduct so reckless as to amount to such disregard.”

In 2009, Plaintiff Veronika Chauca became pregnant, took a period of maternity leave from her job as a physical therapy aide, and was terminated after her return from leave. She then filed suit in the U.S. District Court for the Eastern District of New York, bringing sex and pregnancy discrimination claims under Title VII of the Civil Rights Act of 1964 (“Title VII”), the New York State Human Rights Law (NYSHRL), and the NYCHRL.

Chauca prevailed at trial and obtained a total jury award of $60,500, representing economic and emotional distress damages. Chauca then appealed the district court’s denial of a jury instruction on punitive damages to the Second Circuit, arguing that the district court had not properly construed the NYCHRL’s standard for punitive damages. The Second Circuit, finding that the statute and existing case law did not provide sufficient guidance, certified the question to the New York Court of Appeals.

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Edgar M. Rivera, Esq.

On November 15, 2017, in Berghorn v. Texas Workforce Commission, the District Court for the Northern District of Texas dismissed with prejudice plaintiff Kyle Berghorn’s sexual orientation discrimination claim, but allowed him to re-plead his gender stereotyping claim. Berghorn alleged that Xerox terminated his employment because he is gay and because he failed to conform to Xerox’s gender stereotypes. Both of Berghorn’s claims arose under Title VII of the Civil Rights Act of 1964 (“Title VII”).

Berghorn was employed by Xerox from 2002 until February 29, 2016. At the time of his termination, he held the position of senior manager. Xerox terminated Berghorn after finishing an investigation, which purportedly concerned Berghorn’s use of expenses, but in which Xerox instead asked Berghorn several questions about whom Berghorn was sleeping with and whether the person was male. Allegedly, Xerox employees had previously made other disparaging comments about Berghorn’s sexuality, like, “He has no children. He’s gay.” Ultimately, the investigation revealed that Berghorn had not stolen any money from the company and that he had himself paid for personal charges on his card; his expenses were in order. Nonetheless, Xerox fired him.

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Leah Kessler

On October 19, 2017, in John L. McKinney Jr. v. G4S Government Solutions, Inc., the Fourth Circuit affirmed the ruling of the district court, dismissing John McKinney’s hostile work environment, retaliation, and intentional infliction of emotional distress (IIED) claims against his former employer, G4S Government Solutions, Inc. (“G4S”). The Fourth Circuit concluded that Mr. McKinney failed to follow G4S’s procedure for reporting discrimination and his emotional distress lacked the necessary severity to sustain a claim.

In September 2005, G4S hired McKinney, who is Black, as a security officer at the Radford Army Ammunition Plant (RFAAP).  On May 23, 2013, McKinney observed four of G4S’s white superior officers laughing in a common area near his office. One of them, Shawn Lewis—a project manager and G4S’s highest ranking supervisor at RFAAP—asked McKinney “if he knew that there was a noose hanging on a nail inside a small closed cabinet outside the security captain’s office.” After showing McKinney the noose, Lewis directed McKinney to get rid of it, over McKinney’s objection.  As McKinney was walking away with the noose, another employee—who lived in a predominantly Black neighborhood—told McKinney, “I know what to do with [the noose]. I can use that around my house.” That same day, McKinney saw Lewis standing on a ladder in the supply room, holding a white sheet over another supervisor’s head to resemble a Ku Klux Klan hood.

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