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Articles Posted in Title VII

Disability discrimination remains a persistent problem in the workplace. But it does not happen only at work. Last month, a Norwood, New Jersey teenager was cut from her school’s volleyball team because she has epilepsy. After her father reported what he believed to be discriminatory conduct and demanded that the school adhere to her rights under the New Jersey Law Against Discrimination, she was permitted back on the team. Once she was playing again, however, she was subjected to bullying and harassment from her teammates that lasted the entire school year according to the Complaint filed by her father on October 1, 2020.

fullsizeoutput_3f-300x169Norwood is a small K-8 district where the minor plaintiff (referred to by her initials, EP) received special education and related services due to several disabilities including social anxiety and epilepsy. In addition to being a special education student at Norwood public school, EP was also a member of the volleyball team. Along with her teammates, she tried out for and made the team in her 6th and 7th grade years. When she tried out in her 8thgrade year, she was shocked when she found out that she was the only 8thgrade student who did not make it. When her father addressed his daughter’s removal from the volleyball team with school administrators, EP was allowed back on the team, but was subject to bullying by her teammates for the rest of the school year.

The family filed a Complaint in the New Jersey Superior Court for Bergen County against the Norwood Board of Education and Vito DeLaura, the principal of Norwood public school, alleging violations of the New Jersey Law Against Discrimination and Anti-Bullying Bill of Rights Act. In the lawsuit, the family alleges that Mr. DeLaura, who they claim has a history of singling out and humiliating EP due to her disabilities, instructed the volleyball coach not to let EP play. Specifically, the lawsuit claims the volleyball coach cut EP from the team because her epilepsy required the school to hire a nurse who would be present at all games and practices, creating a significant financial burden on the school district. The family claims that the subsequent bullying was due to EP’s disabilities and was not addressed properly by the school.

While there are federal and state laws that protect employees from racial discrimination in the workplace throughout the country, these laws are not always uniform in terms of the severity or pervasive enough of the complained of conduct that constitute an actionable hostile work environment.  Generally speaking, when the racially discriminatory conduct is so severe or pervasive as to change the nature of the job, a worker has grounds to bring a lawsuit for hostile work environment. But what type of conduct meets the standard for a successful claim? More specifically, can a single instance of race-based discrimination create a hostile work environment? The answer may depend on where the suit is filed. For example, in New Jersey, our courts have held that a single racial epithet can constitute a hostile work environment, while other courts outside New Jersey have adopted a strict rule that a single racial epithet, no matter how offensive, can never be enough to constitute a hostile work environment.

IMG_1E2345D1B7BA-1-300x225Earlier this month, a judge in the federal district court for the Northern District of Alabama granted a defendant employer summary judgment against three plaintiff employees’ claims of racial discrimination and hostile work environment. In Bone v. Alliance Investment Co., LLC, Case No. 5:18-cv-01706-LCB (N.D. Ala. Oct. 8, 2020), three African American carpenters sued their employer, claiming that supervisors frequently referred to them as the n-word behind their backs and routinely assigned them more physically demanding work than their white counterparts. One plaintiff was called the n-word directly to his face and others overheard it being used. The company argued that the employees had failed to present evidence that the harassing conduct was severe or pervasive enough to alter the terms or conditions of their employment. Agreeing, the court dismissed the hostile work environment claim with prejudice.Specifically, the court found that in order to establish a hostile work environment in the Eleventh Circuit, the plaintiffs had to show that “the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” The test for severe and pervasive conduct is both subjective and objective, meaning that the environment became what a reasonable person would find hostile or abusive as well as one that the victim subjectively perceived to be abusive. The court found that although the behavior was subjectively abusive to plaintiffs, under the totality of the circumstances, a reasonable person would not find the workplace to be hostile. Recognizing the severity of the n-word, the court still held that because the plaintiffs’ job performance was not impacted by it, their claim for hostile work environment failed as a matter of law.

The Bone case is reminiscent of a 2019 case decided by recently appointed Supreme Court Justice, Amy Coney Barrett, when she sat on the U.S. Court of Appeals for the Seventh Circuit. In Smith v. Ill. Dept. of Transportation, 936 F.3d 554 (7thCir. 2019), an employee for the Illinois Department of Transportation was fired after a probationary period of employment during which he allegedly performed quite poorly. The employee sued the Department, arguing that it had subjected him to a hostile work environment and fired him in retaliation for his complaints about racial discrimination. The Circuit Court affirmed the dismissal of his claims for failing to establish a hostile work environment as a matter of law. In his lawsuit, the employee claimed he was treated differently from other employees due to his race and his supervisor called him the n-word during a confrontation. The employee was fired two weeks after the confrontation. Addressing the hostile work environment claim, the Circuit Court found that the majority of the harassment he cited was unconnected to his race and arose from generally unpleasant and profane language that was used routinely toward all employees. The one incident, however, that plainly constituted race-based harassment was when one of his supervisors called him a “stupid ass [n-word]” after finding out that he had filed a complaint with the Equal Employment Opportunity office. The Court noted that “while there is no ‘magic number of slurs’ that indicates a hostile work environment, an ‘unambiguously racial epithet falls on the more severe end of the spectrum.’” Even still, a plaintiff cannot win a hostile work environment claim simply by proving that the word was said unless he can also show that it altered the conditions of his employment. Unlike in Bone, the Seventh Circuit Court found that the plaintiff failed to prove even his own subjective belief that being called the n-word created a hostile work environment. The court found that because his entire employment had been rocky, and by the time he was called the n-word his termination proceedings were already under way, there was no proof that the racial slur changed the always unpleasant work environment. Because he could not show that the distress he suffered from being called the n-word was distinct from the distress he suffered routinely at work, the plaintiff’s claim for hostile work environment was dismissed.

Most people are aware that the state and federal law can provide legal protection against sexual harassment and other discriminatory conduct to employees in the workplace. No job-related action, from recruitment and interviewing to compensation or discharge can be intentionally influenced or biased by an employee’s protected class, such as sex, gender, race, disability and others protected classes. But what if the individual is discriminated or harassed outside the employment?  Will the law provide any protection to an individual who is subjected to sexual harassment or other forms of discrimination in places outside the employment, such as government building, campaign organizations or within a police department?  The Appellate Division has issued a decision providing further guidance in situations in which a person is subjected to non-employment related discrimination in a case entitled Holmes v. Jersey City Police Department.

IMG_4199-300x169The case involves a transgender man, who was arrested for shoplifting and brought to the Jersey City Police Department for processing.  The individual, Mr. Holmes, presented his valid driver’s license indicating his gender as male at the time of the arrest. After fingerprinting revealed Holmes’ former name and gender, the officers used offensive and demeaning language to verbally harass Mr. Holmes for the duration of his time at the police station. The officers also moved Mr. Holmes from a male holding cell to a female holding cell despite Mr. Holmes’ identification as male.

The New Jersey Law Against Discrimination prohibits gender-based discrimination and sexual harassment in a place of public accommodation. A place of public accommodation is any place that is open to the public, including schools, businesses, restaurants, government buildings and healthcare facilities. Public place accommodation violations include the use of offensive language, the display of demeaning images such as pornography or inappropriate drawings, as well as unwanted touching and other forms of physical harassment. This harassment can be unlawful regardless of whether it’s performed by an employee of the public place or another patron. Places of public accommodation have legal obligations to ensure that they have policies and procedures in place to prevent and stops the harassment once it knows about it or should have known about it, and it may not retaliate against the individual who was harassed or complained about harassment.

On October 8, 2019, the United States Supreme Court will consider three companion cases concerning whether Title VII of the Civil Rights Act of 1964 guarantees gay and transgender employees across the nation protection from workplace discrimination. In two cases, the Court will decide whether sexual orientation discrimination is a form of sex discrimination within the meaning of Title VII. In the third, the Court will decide whether Title VII prohibits discrimination against transgender people.  The Supreme Court’s decisions to both these questions will have dramatic impact on the rights (or lack thereof) of LGBT persons throughout the country.

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The outcomes of these cases will not only have a significant impact on employees’ rights nationwide, they will also have a significant impact on the individual employee-plaintiffs in each lawsuit. For some brief background, their stories are presented below:

(1)       Bostock v. Clayton County

On June 3, 2019, the United States Supreme Court released an important decision in the case Fort Bend County, Texas v. Davis (slip opinion available at: https://www.supremecourt.gov/opinions/18pdf/18-525_m6hn.pdf) regarding claims of employment discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”). This decision promises to have widespread impact for many cases of employment discrimination filed in federal court, as it reevaluates and clarifies the role and impact of filing a charge with the Equal Employment Opportunity Commission (“EEOC”). 

When an individual believes that they suffered employment discrimination in the workplace, federal law may provide a remedy. In such a case, when an individual seeks to vindicate their rights under federal employment discrimination law, Title VII requires that complainants first file what is known as a “charge” with the EEOC prior to pursuing a civil action in federal court. This procedure has been treated by many courts as a prerequisite to the federal court’s jurisdiction over the individual’s discrimination claim.

After the EEOC receives a charge of discrimination they notify the employer(s) named by the charging party and investigate the allegations. The EEOC’s goal is to evaluate the truth of the allegations, as well as to determine if the dispute can be resolved through informal means or, if that is not possible, whether the EEOC will bring a civil action on behalf of the charging party against the employer(s) in court. The EEOC has 180 days from the date the charge is filed to complete this process, after which (if neither of those courses is taken) they must provide a “right-to-sue” notice to the complainant. Once a complainant receives a right to sue notice, they may then pursue a civil action against their employer on their own behalf. 

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