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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.

Does Title VII Include Discrimination Based on Sexual Orientation?

May 23, 2019

By Hauwa Adamu

In Bostock v Clayton County and Evans v Georgia Regional Hospital, the US Court of Appeals for the Eleventh Circuit held that reliance on Title VII of the Civil Rights Act of 1964 as prohibiting discrimination on the basis of sexual orientation failed to state a claim recognizable under law. 

Background

Evans v Georgia Regional Hospital

Jameka Evans worked at the Hospital as a Security Officer from August 2012 to October 11, 2013. During her time at the Hospital, she was discriminated against on the basis of her sex and targeted for termination for failing to carry herself in a “traditional womanly” manner. She experienced a hostile work environment. She was denied equal pay or work, harassed and physically assaulted.

Although she was a gay woman, she did not broadcast her sexuality. However, it was evident that she identified with the male gender, because of how she represented herself. Evans was punished because her status as a gay female did not comport with the Hospital’s gender stereotypes.

Evans lodged a complaint with the Human Resource department about some adverse treatment at work. Shortly thereafter she also complained that she was harassed and retaliated against because of her complaint. HR indicated that the Hospital had investigated Evans’ complaint, and had found no evidence that she had been singled out or targeted. Evans voluntarily resigned.

Bostock v Clayton County

Gerald Bostock, a gay man, began working for Clayton County, Georgia, as a child welfare service coordinator in 2003. During his 10-year tenure at Clayton County, Bostock received positive performance evaluations and numerous accolades. In 2013, Bostock began participating in a gay recreational softball league. 

During a meeting in which Bostock’s supervisor was present, at least one individual openly made disparaging remarks about Bostock’s sexual orientation and his participation in the softball league. Around the same time, Clayton County informed Bostock that it would be conducting an internal audit of the program funds he managed as part of his job.

Shortly after, Clayton County terminated Bostock allegedly for conduct unbecoming of its employees. Bostock filed a charge of discrimination with EEOC following which, he filed a pro se lawsuit against the County alleging discrimination based on sexual orientation, in violation of Title VII.

The Courts

In Evans, at the United States District Court for the Southern District of Georgia, Magistrate judge Smith issued a report and recommendation (R&R) dismissing Evans Complaint for failure to state a claim. The Judge concluded that while same-sex harassment can be actionable under Title VII, Title VII discrimination claims based upon the plaintiff’s sexual orientation or perceived sexual orientation is not. Judge Randall Hall concurred with Judge Smith’s R&R and dismissed Evan’s case. 

The Eleventh Circuit Court of Appeals rejected Evans request for an en banc rehearing, stating that Evans’ pro se Complaint failed to plead facts sufficient to create a plausible inference that she suffered discrimination. It stated: “Evans did not provide enough factual matter to plausibly suggest that her decision to present herself in a masculine manner led to the alleged adverse employment actions.” 

Evans then filed a petition for certiorari, requesting review from the SCOTUS. Regardless of the fact that several friends-of-the-court briefs were filed urging the SCOTUS to hear the case, including briefs from 79 businesses and organizations, the Court denied review of the case, leaving for another day resolution on whether Title VII prohibits discrimination based on sexual orientation.

In Bostock, the US District Court for the Northern District of Georgia and the Eleventh Circuit Court of Appeals dismissed the case in the same grounds.

After more than nine conferences during which the US Supreme Court could have acted on the petition for review, the SCOTUS has granted review in this case and two others that concern anti-LGBTQ employment discrimination. The cases will be heard in the Court’s 2019-2020 term to create a binding precedent and decide the issue for all courts.

Protected Status + Adverse Employment Action = Discrimination?

April 14, 2018

Often employees are convinced they are victims of discrimination at the hands of employers, through its management or supervisory staff. Often, certain issues are also clear including the employee’s membership in a protected category: Black, female, Muslim, pregnant, for instance, and the employee having experienced a specific adverse employment decision such as dismissal, failure to promote, under compensation, etc. However, it is rarely ever crystal clear that an employee can link the protected category to the adverse decision. Essentially, the employee must clearly answer the question: why, exactly, is this happening to me?

A recent decision from the Eleventh Circuit Court of Appeals which applies to Georgia, Florida and Alabama gives us a good example of the everyday behaviors at the workplace capable of answering this question: “why”.

In EEOC v Exel, the Court upheld a jury verdict awarding back pay on the finding that an employer’s policy of hiring current employees over external candidates was pretextual for sex discrimination. First, the Court accepted evidence that the policy was not mandatory nor was it uniformly applied. Thus, even though neutral on its face, the policy could be bypasssed and used as a cover for other nefarious hiring decisions. Next, the Court identified such nefarious bias (in this case it was against a woman), in the following actions of the hiring manager:

  • “limited his contact with pretty much all the females in [the] office”

  • asked another to “manage the ladies in the office.”

  • was “standoffish” with female employees

  • treated female employees differently than male employees

  • would come into work in the morning and “go straight to his office..”

  • “…wouldn’t speak to any of [the female employees].”

  • stated several times “that he would never put a woman in a management position”

The Court found this evidence is to be “sufficient to tie “generalized discriminatory behavior to the specific employment decision at issue.””

For employers, this case warns of the use of a preferential policy, even though apparently neutral, could be problematic in its day-to-day application.

For employees who think they are being discriminated against, this case gives an example of the sort of evidence required to be successful at trial.

Discrimination 101

November 30, 2017

Recently there have been a number of significant decisions regarding discrimination in the workplace highlighting the fact that preventing discrimination is a responsibility of every employer. Employers who fail to meet this challenge by failing to take all reasonable steps to prevent discrimination can be held directly responsible for discrimination or vicariously liable for the actions of their employees.

What constitutes discrimination has varied by court or even by judge; however, the law is clear that employers should ensure that they do not discriminate (or allow their employees to discriminate) on the basis of the following:

  • Race
  • Nationality
  • Sex
  • Religion
  • Age
  • Disability
  • Political affiliation
  • Marital status
  • Pregnancy
  • Gender/Gender identity/Gender orientation
  • Creed

This is not an exhaustive list depending on your jurisdiction (federal, state, municipal etc.) but it covers most of the basics.

For example, in a recent case, a major rail network was held vicariously liable for the actions of its employees who had sexually harassed a female manager. The manager was subjected to having graffiti of a “particularly graphic and highly offensive nature” written about her in the men’s bathroom at work. In a further incident, a pornographic magazine was pushed under the door of her office. The female manager successfully obtained a large monetary award as a token of the employer’s failures.

Employers will be held accountable for failing to take all reasonable steps to prevent discrimination and harassment in their workplace and to address complaint of discrimination and harassment quickly and confidentially. Some of the steps that employers should take to prevent harassment and discrimination are:

  • Having comprehensive anti-discrimination policies that are committed to by all workplace stakeholders (owners, operators, managers, directors, employees and contractors)
  • Having a grievance resolution procedure that is clear and concise
  • Providing information to your employee of where they can go to get assistance outside of your workplace
  • Training all employees on what is discrimination and harassment, and what behaviors are prohibited
  • Ensuring all managers are trained on how to appropriately investigate and handle complaints
  • Making discrimination and harassment a feature of discussion at staff meetings
  • Displaying posters and notices that clearly state that harassment and discrimination will not be tolerated

#metoo movement – Sexual Harassment and Discrimination at Work

November 30, 2017

In a world where publicizing the intimacy of what goes on behind closed doors is both easy and pervasive, employers are urged to audit their anti-harassment processes and employees are encouraged to come forward if they have experienced or are experiencing sexual harassment at work.

The U.S. Equal Employment Opportunity Commission enforces federal equal employment opportunity (EEO) laws, which strive to create harassment-free workplaces by ensuring that employers fulfil their duties under federal legislation, including Title VII of the Civil Rights Act. Among a vast array of other things, these laws require that:

  • Employers do not condone sexual harassment in hiring, firing, compensation, promotion, layoff, recruitment, training, benefits, etc.
  • Employers do post notices visible to all employees outlining their rights under EEO laws

Sexual harassment is offensive behavior towards someone based on their gender, sexual orientation or sex. Harassment can be a wide range of actions. For instance, bullying, whether physical, verbal or nonverbal; targeted pestering; stalking; antagonistic teasing; name calling; damage to person or property; threatening or derogatory comments. Add sexual assault, including unwanted indecent touching and rape; lewd gestures and exposure. These all fit under the harassment umbrella. Unwelcome sexual advances, request of sexual favors and other verbal or physical conduct of a sexual nature constitute sexual harassment when:

  • Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment
  • Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual
  • Such conduct has the purpose or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile, or offensive work environment

Although most people thing of sexual harassment as something that happens only to women, men can be sexually harassed as well.

Clients have reported that being sexually harassed can devastate the victim’s psychological health, physical well-being and vocational development. Women who have been harassed often change their jobs, career goals, job assignments or educational pursuits. In addition, women have reported psychological and physical reactions to being harassed that are similar to reactions to other forms of stress and abuse.

Sexual harassment, especially in the workplace has gained increasing recognition in every society, causing employers to wake up to the potential of it going on amongst co-workers, supervisors and subordinates.

Employers: audit your policies now, revise them as necessary, implement them uniformly across genders and treat every case seriously.

Employees: it can be scary to say #metoo; however, it is important that you let someone know about your difficulties before it goes too far, or before someone suffers the same abuse.