by Saul Glazer
With the increase in terrorism and attention given to immigration- related complaints, there is commensurate potential for workplace conflict and harassment related to national origin. The Equal Employment Opportunity Commission (EEOC) recently issued new guidelines to help employers prevent national origin discrimination in the workplace. This article discusses national origin discrimination and highlights the key examples in the EEOC’s newly issued guidelines.
National origin discrimination defined
The Texas Supreme Court recently announced that it will review a case arguing that Texas employers shouldn’t be required to spend taxpayer funds to provide benefits to employee spouses in same-sex marriages, even if they do offer benefits to employee spouses in opposite-sex marriages. Depending on the outcome of the case, the ruling could lead to plenty of confusion over what Texas employers are required to do (and prohibited from doing) when it comes to employee benefits.
“Have a blessed day.” “I’m praying for you.” “Are you a believer?” “Would you be interested in attending church with me?” Comments and questions like those may be common in your workplace. On the one hand, Title VII of the Civil Rights Act of 1964 bars employers from discriminating against employees because of their religion. On the other hand, employers have a legitimate interest in preventing employees from expressing their religion in a manner that is disruptive to business operations and preventing proselytizing from creating a religiously hostile work environment. That can be a real tightrope walk because it’s often unclear where the line should be drawn.
Title VII requires employers to provide reasonable accommodations for employees’ sincerely held religious beliefs. That may present challenges when an employee claims that a need to share her faith or seek to convert others is a fundamental tenet of her religion. Employers need not provide accommodations that would impose an undue hardship. Of course, what amounts to a “reasonable” accommodation and what kind of hardship is considered “undue” is open to interpretation. The Equal Employment Opportunity Commission (EEOC) has interpreted an “undue hardship” to be a hardship that presents “more than a minimal burden on [the] operation of the business.” An accommodation that would impede coworkers’ right to work in an environment free from religious harassment would be considered an undue hardship.
During the 1990s, Saturday Night Live, a popular TV sketch comedy show, featured a recurring gender-ambiguous character, Pat. The gag in Pat’s comedy sketches often involved others’ failed attempts to determine the seemingly androgynous character’s gender. The skits played off the then-prevailing view that a person’s gender falls into one of two categories: male or female.
Society’s view of gender has evolved significantly since then. The rigid dichotomy of a two-gender world view is frequently challenged and, in some cases, rejected outright. As society’s views on gender morph, the law is attempting to keep pace.
From Bruce Jenner’s announcement that he was transitioning to become a woman named “Caitlyn” to North Carolina’s passage of a so-called bathroom bill requiring schools and public agencies to restrict bathroom use to the facility corresponding to a person’s biological sex at birth, gender identity issues have become the subject of significant policy debate, lawsuits, and mainstream conversation. Gender identity is also increasingly becoming a more prevalent issue in our workplaces.
Is transgender discrimination in employment illegal?
The Equal Employment Opportunity Commission (EEOC) broke new ground in late 2012 with the release of its first Strategic Enforcement Plan (SEP) publicly identifying its top enforcement priorities. Since that time, the EEOC’s enforcement and litigation program has largely focused on the priority areas laid out in the SEP:
- Eliminating barriers for recruiting and hiring;
- Protecting vulnerable workers;
- Addressing select emerging and developing issues;
- Ensuring equal pay protections;
- Preserving access to the legal system; and
- Preventing systemic harassment.
by Sean D. Lee
On October 5, 2016, the U.S. Department of Justice (DOJ) and the Equal Employment Opportunity Commission (EEOC) released a joint report aimed at helping law enforcement agencies across the country recruit, hire, and retain diverse workforces.
The comprehensive report, “Advancing Diversity in Law Enforcement,” presents the findings of a joint research initiative by the DOJ and the EEOC launched in December 2015 to understand the barriers that undermine diversity in law enforcement and highlight “promising practices” to increase diversity. The report arrives amid an intensifying national conversation about race and policing, although it stresses that diversity also includes characteristics like sex, sexual orientation, religion, language ability, and life experience.
The title of this article isn’t a typo or a joke. It’s a literal statement of holding in a recent federal case before the U.S. District Court for the Eastern District of New York, which found that an employer’s conflict-resolution program, which its creator dubbed “Onionhead” or “Harnessing Happiness,” was in fact a religion under Title VII of the Civil Rights Act of 1964. Despite the outrageous-sounding nature of the case, it serves as a reminder that the bar for what constitutes a religion under Title VII is low, and employers that try to force religious belief systems on their employees face real legal risks.
Sincerity of beliefs is the key
With the announcement of Gretchen Carlson’s (and, subsequently, several other female employees’) complaints about Fox News head Roger Ailes and his ensuing resignation, sexual harassment has recently been in the news. Although Ailes’ conduct somehow slipped under Fox’s radar, most other employers know that employee complaints about sexual harassment are a serious matter that must be promptly investigated. And most, if not all, of you have a sexual harassment policy that includes strong language assuring employees that you will not tolerate sexual harassment, you will act quickly to eliminate inappropriate conduct, and anyone found to have violated your sexual harassment policy will be subject to prompt discipline. However, having such a policy does little good if stereotypes about what sexual harassment “looks like” stop employees and supervisors from recognizing—or reporting—it.
Modern perceptions of sexual harassment generally bring to mind a female victim and a male perpetrator. However, like Jennifer Aniston in “Horrible Bosses,” a sexual harasser can be female, too. And as the recent lawsuit against Elton John shows, sexual harassment can happen between people of the same gender, regardless of the harasser’s or the victim’s sexual orientation.