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Tag: EEOC

Covid-19 Pandemic Related Caregiver Discrimination

August 26, 2022

For individuals with caregiving responsibilities (“caregivers”), the effects of the Covid-19 coronavirus pandemic go beyond work obligations. While navigating hybrid work schedules and tighter shifts, they must also find time for their duties to spouses, children, and disabled relatives. These individuals may live with children too young to receive the vaccine or relatives who are immunocompromised. As they juggle work and caregiving duties, they may face employment related discrimination because of these pandemic-related caregiving responsibilities. Fortunately, the US Equal Employment Opportunity Commission (EEOC) provides regulations to protect employees from workplace prejudice because of any caregiving obligations they may have to family members and loved ones. This article will summarize those guidelines to assist employers and employees in addressing pandemic-related caregiving discrimination. 

When Does Workplace Caregiver Discrimination Violate US Employment Laws? 

According to the EEOC, employers violate US employment laws when they discriminate against an employee/applicant with caregiver responsibilities based on their sex (sexual orientation and gender identity), pregnancy status, race, age, national origin, religion, disability, or genetic information. It is also unlawful for an employee to discriminate against an employee/applicant based on their association or caregiving responsibilities to people with disabilities or other protected characteristics (race, ethnicity, etcetera). 

What About Caregiving Triggers Discrimination Considerations?

Making employment decisions based on gender stereotypes is also illegal. For example, when the company fails to hire female applicants because they assume they would focus more on caring for their children and elderly relatives than on their work. Even further, EEOC regulations prohibit punishing female employees more harshly than male colleagues for absences or missed deadlines because of pandemic-related caregiving obligations. These regulations apply to discrimination against male employees, as well. It is unlawful to discriminate against male staff who are caregivers based on gender stereotypes that women are caretakers while men are breadwinners. Employers may not deny male employees leave or requests for a flexible schedule to attend to family members or loved ones infected with COVID-19 if they grant such requests to female staff. 

What About LGBTQ Employees and Applicants?

EEOC regulations prohibit discrimination against LGBTQ employees and applicants with caregiving responsibilities because of their sexual orientation. Employers may not deny requests for flexible hours or office leave from these individuals because of their gender identity if they grant permission to such requests from other staff members. They may also not require these employees to grow through rigorous procedures before granting their leave requests if other workers do not go through such processes. 

What About Discrimination Against an Employee With Caregiving Responsibilities Based on Race and Ethnicity?

Discriminating an employee with caregiving obligations because of their race, ethnicity, or national origin is illegal under EEOC laws. 

For instance, managers may not require black or Asian employees to go through burdensome processes to obtain leave or a flexible work schedule to take care of a relative, while others have their requests granted without such procedures. 

Employers may also not deny an employee’s requests for leave to care for a loved one from another country with a COVID-19 infection because a COVID-19 variant was identified in the infected individual’s home nation. 

Caregiver workplace harassment or discrimination based on citizenship or immigration status is also unlawful under Department of Justice laws. 

What About Discrimination Because of Caregiving Responsibilities to an Individual With Disabilities?

Under EEOC regulations, it is illegal to discriminate against an employee who is a caregiver to an individual with disabilities because of their association with the care recipient. Some instances where such discrimination can occur include refusal to: 

  • promote or hire an applicant/employee who is a parent to a child with a mental health disability that escalated during the pandemic because the applicant/staff would not show commitment to their duties due to their caregiving obligations. 
  • hire an applicant who has a spouse with a disability that has a risk of severe illness from COVID-19 infection because the employer wants to avoid the increased health insurance costs when the company includes the ailing spouse in its healthcare plan. 
  • include the applicant’s spouse in the company’s health insurance plan after hiring the applicant because of the disability mentioned above.

Reasonable Accommodation for Caregivers Under US Federal Employment Laws

EEOC regulations do not give US employees a right to workplace accommodations (telework, flexible schedules, overtime, etcetera) because of their caregiving duties. 

However, other US laws make provisions for such employee rights, such as the Family and Medical Leave Act. The act allows workers to request office leave for caregiving purposes. 

Other state and local laws also provide reasonable accommodations for workers with caregiving obligations. That said, employers can grant workplace accommodations to staff who are caregivers at their discretion, as long as they do so in a non-discriminatory manner. 

How Employees Can Respond to Discrimination Based on Covid-19 Related Caregiver Status 

Employees with caregiver status who are victims of discrimination because of their race, gender, sexual orientation, or affiliations with a person with a disability should report the harassment/discrimination to their employers. 

State, local government, and private sector employees should report discrimination incidences to the EEOC, state, or local government agencies responsible for employment discrimination. They may file their complaints with the EEOC within 180 in states without a local EEO agency and 300 days in states with a local EEO agency. 

Federal workers should report discrimination cases to their agency’s EEO office within 45 days. State and local government anti-discrimination agencies also have timelines for state and local government employees to report harassment cases. 

Employers and their staff can obtain further details on caregiver discrimination from the EEOC’s caregiver discrimination policy guidance, associated fact sheet, and employer best practices document. 

To sum it up…

US employment laws prohibit all kinds of workplace discrimination. If you’ve been a victim of workplace harassment because of your caregiver status, you can take steps to protect your rights and those of other employees. At the Law of Office of Sheri Oluyemi, we bring our experience in US employment laws to help employees get justice at work. Reach out to us today to request a free teleconference, and let’s safeguard your right to fair treatment in your workplace.

Discrimination Based on Hair?: The CROWN Act 

July 5, 2022

Crown Act passes US House of Representatives

On March 18, 2022, the US house of representatives passed the CROWN ACT banning “discrimination based on an individual’s texture or style of hair.” The bill, first introduced to the house in 2021 by Representative Bonnie Watson Coleman, was passed in a vote of 235-189. It currently is being read in the US Senate.

While this is the first time the bill is getting approval at the federal level, it has already made its way into state legislation across several states in the US. In 2019, California became the first state to pass the CROWN ACT into law by a unanimous vote. Twelve other states, including New York, Washington, Nebraska, Delaware, Oregon, and Colorado, would eventually follow suit between 2019 and 2021. Here in Georgia, the CROWN ACT is not yet law.

What Is the Crown Act as Relates to Discrimination Based on Hair?

The CROWN ACT stands for Creating a Respectful and Open World for Natural Hair. According to the bill, “Routinely, people of African descent are deprived of educational and employment opportunities because they are adorned with natural or protective hairstyles in which hair is tightly coiled or tightly curled, or worn in locks, cornrows, twists, braids, Bantu knots, or Afros.”

Black people have often faced racial discrimination across corporate America because of how they groom their natural hair. According to one study, employers perceive black women with natural hairstyles as less competent and professional (and less likely to be recommended for job interviews) than black or white women with straight hairstyles. In 2016, Sabrina Chiodo, assistant manager at Jack Astor’s Bar and Grill, sent home 20-year old Akua Agyemfra for wearing her hair in a bun (contrary to restaurant policy that all female staff wear their hair down). Elsewhere, in Louisiana, Imani Jackson lost her job at American Screening LLC within a month of wearing her natural hair in a bun instead of the wig she had worn during her interview and her first month working at the company. But it’s not only African-American women that suffer from racial discrimination because of their hair. In 2018, Andrew Johnson, a black high school wrestler, was told by a referee to cut his dreadlocks or forfeit a wrestling match. It is cases like these that the CROWN ACT seeks to address and outlaw. 

What Are the Effects of the CROWN ACT on Discrimination?

The CROWN ACT prohibits racial discrimination based on a person’s hair. This discrimination is often unspoken in US workplaces but ladened in employee handbooks that specify company policy. As such, the CROWN ACT would be a significant step to enabling a more diversified and inclusive corporate America. In the wake of the CROWN ACT, more companies will adopt new policies that allow women of color to groom their natural hair the way they deem fit without discrimination. Also, before the CROWN ACT, cases of race-based hair discrimination that have made it to US courts have failed to yield substantial results. For instance, in 2014, US District Court Judge Charles R. Butler Jr dismissed a race-based hair discrimination case involving Chastity Jones and Catastrophe Management Systems.  In 2016, a three-judge panel of the 11th Circuit Court of Appeals upheld the district court’s decision and further attempts to get the US Supreme Court to intervene failed to yield results. 

However, if the US Senate passes the CROWN ACT into law, it would provide the necessary legal protection for victims of race-based hair discrimination, especially since there’s currently no other federal legislation in the US that protects people of color from stigmatization because of their hair. 

Furthermore, since its inception in California in 2019, the CROWN ACT has created awareness and kick-started healthy conversations about racial discrimination based on a person’s hair. These conversations will only become more mainstream once the bill becomes federal law. 

Conclusion

Workplace discrimination based on hair is more common than we realize for people of color. The stigma behind natural hair for black people has often deprived them of educational and employment opportunities. However, the narrative should change once the CROWN ACT becomes federal law. If you’re a black person in the US facing race-based hair discrimination at your workplace or school, hiring legal help is the best course of action to protect your rights.

Or, if you are an employer seeking to create an inclusive dress policy or dress code with specifications about hair, contact us.If you want to review your company’s policy surrounding natural hair in the wake of the CROWN ACT, our expert team of lawyers can also assist you throughout the process and ensure there are no grey areas that could get you into a potential lawsuit.

At the Law Office of Sheri Oluyemi, we have the best legal hands in US employment law to handle workplace discrimination. Reach out to us today; let’s look at your case and begin proceedings to get you justice.

How NDAs Actually Help Employers Protect Data

June 5, 2022

On May 2, 2022, the Supreme Court’s draft opinion to overturn the 1973  Roe v Wade decision and return the power to determine abortion laws to US states made its way to the public domain in a leak that sparked a widespread uproar. While most outcry surrounding the opinion draft related to its impact on women’s rights, the leak brought another significant issue into the limelight: non-disclosure agreements (NDA) and related policies. Before the leak, the US public had never had access to a draft decision on a pending case in the modern history of the SCOTUS. The released draft poses a question to corporate organizations across the US: how can they protect confidential information to prevent unauthorized disclosure? The protection of such intellectual property, data and trade secrets becomes even more crucial in the digital age, where companies store sensitive data in an online company database that is subject to cyber-attacks. 

This article will discuss non-disclosure agreements (NDA) and other measures employers can take to protect information at work. 

What Are Non-disclosure Agreements?

Among businesses across the globe, confidentiality is non-negotiable. Employers share trade and professional information with employees with the assurance that these details will not go beyond the office . Non-disclosure agreements are one of the ways employers guarantee that assurance. A non-disclosure agreement is a binding legal contract that seeks to maintain the confidentiality of information. As a legal contract, an NDA ensures that one or both parties named in the agreement do not share specific information with a third party at all or without prior express written approval. 

Companies typically use NDAs to restrict employees from divulging trade secrets or intellectual property to competitors. However, contracting parties can also use an NDA to protect general privately-held company-related information. Typically, alongside the confidential information, NDAs also contain sanctions for breaching the contract, such as financial compensation and injunctions. 

What Are the Different Types of NDAs? 

There are three types of non-disclosure agreements. Here’s a quick breakdown of each of them: 

1. Unilateral NDAs

These types of NDAs involve one party disclosing confidential information to another and requesting its secrecy. Typically, businesses use unilateral NDAs to protect trade secrets and competitive data. In the employment context, all NDAs are unilateral.

2. Bilateral NDAs 

These NDAs involve two parties revealing sensitive information and signing an NDA to ensure neither individual divulges the sensitive details to a third party. Bilateral NDAs are a common theme in mergers and acquisitions. 

3. Multilateral NDAs 

These contracting confidentiality agreements involve three or more parties, with at least one of the individuals disclosing private information to the others. 

What Does an NDA Contain?

There are some vital provisions that contracting parties must include in an NDA. Some of them are:

  • Identities of the parties involved in the contract 
  • Broad definitions of the confidential information
  • The scope of the contract
  • The timeline of the agreement
  • Exclusions to the contract 
  • Sanctions for breaching the NDA
  • Related clauses, such as a non-compete, non-solicitation of employees, and non-circumvention clauses 
  • Termination of the contract

Typically, only the contract’s provider(s) can terminate an NDA. However, the contracting parties can also terminate the NDA by mutual consent or if the contract has exceeded its timeline. Also, while outlining the scope of an NDA, businesses should narrow the contract agreement to protect genuinely confidential information, as NDAs could be unenforceable if they are too broad. Furthermore, there are federal and state employment laws that determine the clauses that employers cannot include in an NDA. Corporate institutions should hire attorneys to help draft NDAs to ensure they meet state and federal regulations. 

Other Measures That Can Help Businesses Protect Workplace Confidentiality

Aside from NDAs, there are several other ways employees can ensure the protection of proprietary secrets. Here are two of the most common: 

  • Confidentiality Training and Policies 

Confidentiality training should become a part of the integration processes for new employees across businesses. HR departments should train newly-recruited employees on handling and disposing of sensitive information, company policies on sharing confidential data, and the consequences of violating these regulations. 

With social media becoming a crucial part of communication for us today, the use of the internet and other communication media in sharing private corporate information should also be a part of the details covered in the confidentiality training. Furthermore, the employee handbook should contain broad definitions of company privacy policies. 

  • Create Contingency Plans in the Event of Privacy Policy Violations 

First, your company should have a contingency plan for when an employee violates company confidentiality policies, or sensitive corporate information makes it to the public through any other means. The plan should be broad enough to cover all possible scenarios. Have strategies for removing the leaked information from the public domain, locating and disposing of other copies, and executing any legal action stated in your company policy against the guilty staff. 

Second, aside from privacy violation contingency strategies, your company may also need an exit plan for employees. This plan involves the processes employees have to go through to submit any company data or property in their possession whenever they want to leave the company. Your exit strategy should also include steps to disable and restrict access to all employee emails, company social media accounts, and online databases. 

Need NDA for Your Company? Reach Out to Our Employment Law Attorneys Today! 

Finally, confidentiality violations, such as the Supreme Court draft decision leak, can ruin corporate organizations. If your company doesn’t have an NDA in its privacy policy and you’re considering drafting one or updating the terms in the current confidentiality agreement, you’ll need an attorney to help you through the process. NDAs are sensitive contracts that can become unenforceable if you don’t draft them properly. State laws can also affect confidentiality agreements. If the scope of your NDA goes beyond state regulations, it might affect its enforceability. 

At the Law Office of Sheri Oluyemi, we can bring our expertise in US employment Law to tailor your NDA to meet your company’s privacy needs while staying within your state’s regulations. Our employment attorneys can also help you handle the legal sides of company privacy violations. 

Request a free teleconference consultation today, and let’s begin the process of protecting your company’s confidential data. 

Sexual Harassment In the Workplace: Steps for SMBs to Avoid Liability Under Title VII

November 4, 2021

When an employee comes forward with a sexual harassment claim, they expect their employers to respond constructively to get justice served. However, several small business company executives often dismiss these cases, with little or nothing done to find a resolution.

And when senior managers ignore sexual harassment complaints in this manner, the following line of action for the victim is a costly and lengthy lawsuit.

Title VII of the Civil Rights Act prohibits discrimination or harassment of any sort; thus, any litigation against your business will have you facing the law in its full wrath.

As a business owner, you want to avoid this scenario; as such, you should address sexual harassment in your workplace even before it rears its head. With that in mind, we provide you with some helpful tips to prevent sexual harassment in your business.

How to Address Sexual Harassment as a Small or Medium-sized Business

Sexual harassment cases are challenging to handle. Here are some constructive ways to deal with sexual harassment in the office:

  1. Set Internal Policies and Regulations

When there are no rules guiding employee conduct in your company, your staff can exhibit any form of inappropriate behavior because they feel anything goes. Thus, you need company policies and rules that define acceptable conduct within the office premises and prohibits sexual harassment or any discriminatory behavior. These corporate laws should also specify the consequences of harassing employees or clients sexually.

You should also have these regulations in print and ensure every employee has them, regardless of their role. New employees must get a copy immediately after employment, and you’ll need to have extensive training sessions with them on how workers should relate with and treat each other. Existing staff members should also receive regular training to re-emphasize the company’s stance on sexual harassment and the repercussions of such behavior.

1 Enforce the Rules

Don’t make laws and throw them out the window when the time comes to enforce them. Ensure you take every sexual harassment allegation in your company seriously, regardless of whether the offender is a senior staff or a junior employee.

Set up an HR committee or department to investigate these claims and take appropriate action when you discover the truth. When you show zero tolerance to sexually inappropriate behavior in the workplace, your employees will conform to their attitudes accordingly.

2 Cultivate a Work Environment of Respect and Equality

While sexual harassment isn’t gender-neutral, we can all agree that women are victims of sexually inappropriate behavior more than men. As such, it’s vital to establish a work environment where everyone is respected, regardless of gender.

Ensure that every staff member receives equal treatment and has the same opportunities to thrive. It’d help if you also addressed gender-limiting biases head-on.

For example, some stereotypes that define women sexually according to what they wear or their race play significant roles in the high rate of sexual harassment towards the feminine gender.

It would be best to ensure these prejudiced views aren’t found in your firm. You shouldn’t even tolerate them as workplace banter. Men also face some of these biases, so they shouldn’t be left out of the conversation.

Furthermore, there should be consequences whenever an employee is disrespected in any way.

3 Empower Your Employees

Often, the victims of sexual harassment face discrimination and abuse whenever they come forward, even from coworkers who should know better and treat them with empathy. On that note, ensure to create a work environment where your staff members can speak up without retaliation from anyone, including their offenders.

Make your staff know that they can trust the company to act in their best interest whenever they’re victims of any form of discrimination, regardless of their gender or social status. With so many sexual harassment cases swept under the carpet, your company should stand out and make a difference.

Conclusion

Sexual harassment is still prevalent in American workplaces, despite having more media coverage with several conversations to see victims get justice. That said, if you’re battling with a sexual harassment case in your workplace or would like to take proactive measures to prevent them, we recommend you seek legal representation to help you out. Reach out to us today at The Law Office of Sheri Oluyemi, and let’s bring our extensive experience in employment law to your aid.

“Sex” Means “Sex”: SCOTUS Extends Anti-Discrimination To LGBTQ Employees

June 18, 2020

On June 15, 2020, the United States Supreme Court (SCOTUS), by a vote of 6-3, ruled that the ban on sex discrimination in Title VII protects gay, lesbian and transgender employees. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination “because of sex”; however, members of the LGBTQ community have not enjoyed this protection through federal legislation because some courts, including the 11th Circuit in which Georgia courts sit, had interpreted “because of sex” to exclude sexual orientation and sexual identity.

The Bostock ruling is a landmark decision. LOSO, LLC, had appraised our readers about the Bostock case here. To summarize briefly, Mr. Bostock’s employment with Clayton County, Georgia was terminated when his employer discovered that he was a gay man. Both lower courts upheld the termination.

Upon appeal to SCOTUS, in the majority’s opinion, Justice Neil Gorsuch framed the question before the Court as a straightforward one:  “Today,” the Court stated, “we must decide whether an employer can fire someone simply for being homosexual or transgender.”  The Court found that the answer to that question “is clear.”  When an employer fires an employee “for being homosexual or transgender,” that employer “fires that person for traits or actions it would not have questioned in members of a different sex.  Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

Justice Gorsuch explained that the Supreme Court generally interprets a law by looking at how the public would have understood the law when it was passed — “the ordinary public meaning” of the law.  The Court noted that the word “sex” means either male or female. Thus, under the plain terms of Title VII, then, an employer violates Title VII “when it intentionally fires an individual employee based in part on sex,” even if “other factors besides the plaintiff’s sex contributed to the decision” and even if “the employer treated women as a group the same when compared to men as a group.”  All that matters, the Court emphasized, is whether “changing the employee’s sex would have yielded a different choice by the employer.”

As an example, the Court cited the case of an employer with two employees who are both attracted to men and are, for purposes of comparison, identical but one is male and one is female. If the employer fires the male employee only because he is attracted to men, while keeping the female employee who is also attracted to men, the employer has violated Title VII by treated the sexes differently.

The Court rejected the idea that because Congress did not address sexual orientation or transgender status specifically in Title VII, the law does not protect LGBTQ employees. Instead, the Court made clear that discrimination against LGBTQ employees, “necessarily entails discrimination based on sex”.  The decision noted that if Congress establishes a broad rule of “sex” in all its variations, without any exceptions, then “courts apply the broad rule.”

The Bostock decision may not have an earth shattering effect on employers who are located in jurisdictions where protection for LGBTQ employees have already recognized. But for all others, Bostock requires an immediate revision company policy and accompanying training for managers and supervisors. Contact us to see how we can help.

FAQ Series: Is Covid-19 A Disability?

May 11, 2020

As of May 11, 2020, the Equal Employment Opportunity Commission (EEOC) has not stated that covid-19 is a disability under the Americans with Disabilities Act (ADA).

Therefore, an employee who contracts covid-19 is not entitled to protections under the ADA including reasonable accommodations, freedom from discrimination, harassment and retaliation on that basis alone unless that employee also has a disability or is part of another protected class under other federal or state statutes.

My EEOC Charge is 1 in 90,000 – EEOC Fiscal Year 2018 Enforcement and Litigation Data

April 18, 2019

On April 10, 2019, the U.S. Equal Employment Opportunity Commission (EEOC) released detailed breakdowns of its work in fiscal year 2018 which ended on September 30, 2018. You can find details on its website but some remarkable statistics are as follows:

  • Received 76,418 charges of workplace discrimination

  • Resolved 90,558 charges of discrimination (including those filed in prior years)

  • Secured $505 million for victims in private sector, state and local government, and federal workplaces

  • Handled over 519,000 calls to its toll-free number, 34,600 emails and more than 200,000 inquiries in field offices

  • Filed 199 merits lawsuits alleging discrimination, including 117 individual suits and 45 suits involving multiple victims or discrimin­atory policies and 37 systemic discrimination cases

  • Achieved a successful outcome in 95.7 percent of all district court resolutions

Often, people inquire whether the #MeToo movement spurred more legal disputes. EEOC data demonstrates this was indeed the case. The agency also received 7,609 sexual harassment charges – a 13.6 percent increase from FY 2017 – and obtained $56.6 million in monetary benefits for victims of sexual harassment.

However, leading the pack as the most frequently alleged basis of discrimination with 51.6% of all charges filed, was “retaliation”, followed by “sex”, then “disability” then “race”, then “age”.

Encounters of the Hostile Kind: What Do You Need to Prove a Racially Based Hostile Work Environment?  

March 20, 2019

Meet Brenda Smelter. She is a black woman that was hired by Southern Home Care Services, Inc. d/b/a/ ResCare Homecare in July 2013 as a Customer Service Supervisor. She was the only black person who worked in her office, she replaced a white employee who was away from the office on maternity leave. Brenda struggled with performing her job but most distressing at work was that she often overheard co-workers making racist comments about black people; sometimes these comments were made directly to her face and in the presence of others, including members of management.

The severity of these racist comments peaked on the last day of her employment when a co-worker called her a “dumb black nigger” during an argument. According to Smelter, she was fired for reporting this epithet, along with her co-workers’ other racist comments, to her direct supervisor. The reason Southern Care provided for the termination was “poor fit” citing performance concerns and chaos. After her termination, she was replaced by a white employee, in addition to the return of her predecessor, also white, from maternity leave.

Brenda sued Southern Home under Title VII and 42 U.S.C. § 1981, asserting claims for discriminatory termination, hostile work environment, and retaliation. Smelter contends that Southern Home (1) discriminated against her by permitting a hostile work environment to exist at the office, (2) discriminated against her by terminating her because of her race, and (3) retaliated against her for reporting her co-workers’ racist comments.

After the case was dismissed by the District Court, the 11th Circuit Court of Appeals agreed with the district court that Smelter’s discriminatory termination and retaliation claims fail because she provided insufficient evidence of pretext in response to Southern Home’s legitimate, nondiscriminatory reasons for terminating her. But the 11th Circuit Court disagreed that, as a matter of law, the harassment Smelter suffered was not severe or pervasive and Southern Home lacked notice of that harassment.

Thus, in October 2018, the 11th Circuit Court gave us a recent window into the elements required to establish a racially based hostile work environment claim.

To prove a hostile work environment claim, an employee must 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.” When the employee’s harassment claim is based on her race, she must prove five elements: (1) she belongs to a protected class, (2) she was subjected to unwelcome harassment, (3) the harassment was based on her race, (4) the harassment was sufficiently severe or pervasive to alter the terms of her employment and create a discriminatorily abusive working environment, and (5) the employer is responsible for the environment.

Typically at issue, as was the case here, is the “severe and pervasive” threshold. To establish that harassment was sufficiently severe or pervasive to alter the terms or conditions of her employment, an employee must prove that her work environment was both subjectively and objectively hostile. In other words, the employee must first establish that she “subjectively perceive[d] the environment to be abusive.” Then she also must satisfy the objective component by showing that her work environment was one “that a reasonable person would find hostile or abusive.”

Beginning with Smelter’s subjective perception of her work environment. Smelter repeatedly testified that enduring her co-workers’ racist comments was stressful and hurtful. She also explained that it felt like the harassment “never stopp[ed],” as though her co-workers were pushing her to “see how much she [could] take” in the hopes that she would “just quit and leave.” The Court found this testimony sufficient to demonstrate subjective belief in the severity and pervasiveness of the conduct.

The employer objected that Smelter’s failure to report the incidents indicate a lack of subjective believe in the harassment. Precedent recognizes, however, that an employee’s failure to report harassment is not dispositive of whether the employee perceived the environment created by the harassment as hostile or abusive. 

Regarding objectivity, the facts sufficient to meet this threshold were: 

1.    Pervasiveness, also known as Frequency

Smelter endured racist remarks by her co-workers nearly every day that she worked in that office. There were at least 8 racist comments in 2 months that Smelter could recall with specificity.

2.    Severity

Brenda endured the following comments: black men were “lazy” and “the scum of the earth; “black women[] ha[d] babies on welfare,” President Barack Obama’s “big ears” made him “look[] like a monkey,” and she did not know that black people could be buried on Sundays; Smelter’s hair made her look like a “mixed monkey” from the movie Planet of the Apes; an occasion when black people were exiting a bus at a Wal-Mart store was described as looking like they were “chained together.”; and a desire expressed to “send them all back . . . to Africa.”. A co-worker “jumped up . . in a rage” and said “get out of my office . . . you dumb black nigger.” in doing so she “hit the desk” like she was about “to charge at” Smelter. 

 The Court held that these comments were directed at Brenda to humiliate her and were egregious even just once because it was preceded by two months of related abuse, thus, they were severe.

3.    “Physically threatening or humiliating”

See point number 2; the comments were severely humiliating. The Court stated that “physical threat” is not always a dispositive requirement.

4.    Altered job performance is optional in light of totality of other circumstances 

Indeed, “[t]he Supreme Court has cautioned that harassment need not be . . . so extreme that it produces tangible effects on job performance in order to be actionable.”

5.    Because the comments were made by co-workers, management needed to be aware or made aware of the harassing conduct and must also have failed to take prompt remedial action

Here, there was a concession that no report was made until the day of termination but there might have been actual notice because Smelter testified that everyone thought the slurs were funny and that others, including management, overheard the slurs. Smelter also testified that members of management overheard these comments and were amused by them, but she never made a formal report until the day of her termination. 

Take away for employees making this claim: this case demonstrates the type of hostility that makes the threshold for a hostile work environment claim.

Take away for employers defending such a claim: the company must take prompt remedial action if any members of management have actual or constructive notice of this type of hostility.

So You Think You’ve Been Discriminated Against Based on Your Race? Prove It.

September 4, 2018

We’ve all had that feeling we’ve rubbed someone the wrong way. This is a feeling that starts in our gut; it is our subjective understanding of the circumstances. Next, we try to objectively examine the way we are being treated relative to the treatment of others around us. We ask, is it me or are people of a different race being treated differently? This analysis is the same one demanded by Title VII of the Civil Rights Act of 1964 (Title VII) in racial discrimination cases. 

Racial discrimination is often manifested subtly and is difficult to detect.  It can also be extremely difficult to prove. However, one thing is certain, black Americans have faced discrimination in the workplace for the past 25 years. In fact, juries around the country are routinely awarding large sums of damages to African Americans who have demonstrated that they suffered racial discrimination in their respective workplaces. 

To prove race discrimination in the workplace, an employee must be able to demonstrate that they were subjected to an adverse job action based on their race. Generally, an employee has to prove race discrimination using direct evidence. An example of direct evidence would include, among other requirements, a memorandum, email or audio recording expressly stating something to the effect of: “Demote Jane because she is black; we only promote employees who are not black”. However only in rare cases does an employee actually have direct evidence of discrimination. Therefore, courts have accepted circumstantial (also known as indirect) evidence of discrimination. Where there is a sufficient amount of indirect evidence, the court will accept the entire compilation of evidence as proof of discrimination. An example of circumstantial evidence of racial discrimination in the workplace could include, among other requirements, a scenario where all the demoted employees were black, and all the promoted employees were white; without reason.

In order to prevail in a race discrimination lawsuit, the employee must demonstrate that:

  • They are in a protected class;
  • Qualified for a job or performing it adequately;
  • Were denied a job benefit or subjected to a negative job action.
  • The person who got the benefit or who was not subject to the negative job action, was of a different race or the company continued to search for qualified applicants. 

Proving a race discrimination case can be challenging. Additionally, there are strict timelines for reporting and filing racial discrimination claims. 

If you feel you have been discriminated against retaining the professional services of an employment law attorney will prove beneficial to assist you. 

That’s Racist!: Racial Discrimination Defined

August 28, 2018

Race in America is that ever-present white elephant in the room which creeps into every conversation and influences our most subconscious thoughts. Congress considered this fact when it enacted Title VII of the Civil Rights Act of 1964 (Title VII) which does its best to keep racial biases out of the workplace by prohibiting employers from:

  • Failing or refusing to hire or promote an employee based on their race; 
  • Firing or discipling an employee because of race;
  • Paying an employee less or providing them fewer benefits on account of their race;
  • Failing to provide benefits, promotions, or opportunities to an employee because of their race; and
  • Improperly classifying or segregating employees or applicants by race. 

Although employers may inquire about race and affirmative action programs, they are prohibited from allowing race to be part of the decision-making process. 

Furthermore, Title VII prohibits employee segregation that is based on race, it also prohibits assigning primarily minorities to certain positions or groups or to categorize employees or jobs so that certain jobs are generally held by minorities. Race or color is never a bona fide occupational qualification under Title VII. 

Racial discrimination and employment policies must apply to everyone, regardless of race or color and Title VII prohibits race/color discrimination against all persons, including Caucasians. Although race and color overlap, they are different. While Title VII does not define “color,” the courts and the United States Equal Employment Opportunity Commission read “color” to have its commonly understood meaning-pigmentation, complexion, or skin shade or tone. Racial discrimination involves treating someone unfavorably because he/she is of a certain race or because of personal characteristics associated with race (such as hair texture, skin color, or certain facial features). Color discrimination involves treating someone unfavorably because of skin color complexion.

Yes, we have all engaged in the discussion about race. Living in America makes this fact undeniable. It would serve us well to define the terms being used in order to use them properly. I hope the foregoing was helpful. – SEO

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