Trends in workplace bias law keep employers on their toes

The issue of race discrimination in America has recently been pushed to the top of our collective minds in the wake of 2014 grand jury decisions not to try police officers in the shooting deaths of unarmed African-Americans. The matter is one that law enforcement agencies and our society will be grappling with for a long time to come.

Likewise, companies can never be too vigilant when it comes to fighting discrimination of all kinds: race, gender, pregnancy status, sexual orientation and others. Laws change, regulations change and people change. Sometimes, your company must change, too. Here is a glimpse at what attorneys in the trenches of race and gender discrimination litigation think companies should be tracking.

Implicit bias

Creeping into discrimination cases around the country is an argument that a workplace discrimination claim can be established through evidence of implicit bias, according to Peter Murphy of Shipman & Goodwin in Hartford, Conn. A typical race discrimination case could be based on an argument that: “He’s white, I’m black, and you promoted him, so you discriminated against me on the basis of race.” Employers are familiar with the ways a plaintiff would normally try to prove such a race discrimination claim. For example, a plaintiff may rely on objective evidence such as alleged racist comments by a supervisor, differences in credentials of the applicants, or even shifting reasons for the promotion decision. According to Murphy in the absence of such evidence, the implicit bias argument attempts to prove a race discrimination claim through a decision maker’s purported unconscious beliefs and biases.

Supporters of the theory argue that Americans are unconsciously biased, and this bias infiltrates every interaction between people of different races. Even well-meaning managers can have implicit bias, the plaintiffs’ bar argues.

“Most people don’t consciously say to themselves or employees, ‘I’m a bigot. Let’s see how I can discriminate today,’” said Donna Ballman, an employee-side employment attorney in Fort Lauderdale, Fla. “But if the same person plays favorites, and those favorites are always of the same race (or religion, sex, etc.) then that’s discrimination. If they hire all one race, and those people are less qualified than applicants of another race, that’s also discrimination.”

Murphy said implicit bias has been raised in one of my current cases, and I’ve seen it in several others around the country. The concept hasn’t gained much traction with the courts at this time, with two recent cases from the Northern District of Illinois that rejected plaintiffs’ implicit bias arguments.

In Jones, et al. v. National Council of Young Men's Christian Associations of the United States of America (No. 09 C 06437 [N.D. Ill.; March 31, 2014]), African-American employees of a YMCA allege race discrimination and retaliation in salary and promotion decisions. The plaintiffs, seeking class certification, proffered expert testimony from Dr. Anthony G. Greenwald to educate the jury about the general principle that people in the United States “operate on the basis of implicit biases—stereotypes—that function on an unconscious level even amongst good, well-intentioned people and lead us to relatively favor whites and relatively disfavor blacks.”

District Court Judge John J. Tharp, Jr. excluded the expert report under Federal Rule of Evidence 702, finding general principles of implicit bias against African-Americans would not help a trier of fact determine issues of causation. “His opinions do not fit; they are derived solely from laboratory testing that does not remotely approximate the conditions that apply in this case specifically or more generally in the context of an employer's decisions about employee compensation and work assignments,” the Judge said.

In Wells-Griffin v. St. Xavier University (No. 11 C 8213 [N.D. Ill.; March 13, 2014]), the plaintiff claimed she was terminated after her supervisors repeatedly were dismissive of her concerns about her hours and other subjects. The University closed her department for budget reasons and terminated her. She argued that these instances, taken together, indicated that her supervisors adhered to “stereotypical notions that [she] was lazy, incompetent, insubordinate, uneducated, and ungrateful.”

U.S. District Court Judge Joan H. Lefkow granted the University defendant’s motion for summary judgment, finding the plaintiff did not provide evidence that she was treated differently than other employees. “Thus, it is not possible to infer from the evidence presented that her supervisors' actions were attributable to racial stereotypes,” the Judge said. Further, she said the University gave legitimate, non-discriminatory reasons for the termination.

This is something all companies have to think about—as you see it pushed more and more, you’ll see more and more seminars, research and articles on this topic Murphy said.

Pregnancy discrimination

It’s certainly not a new issue, but pregnancy discrimination may be taking center stage in the coming months. On December 3, 2014, the U.S. Supreme Court heard arguments in Young v. United Parcel Service (No. 12-1226) about whether the Pregnancy Discrimination Act requires an employer to provide the same work accommodations to an employee with pregnancy-related work limitations as to employees with similar, but non-pregnancy-related, work limitations.

Plaintiff Peggy Young was a delivery driver at UPS when she became pregnant. Her doctor advised her not to lift more than 20 pounds. Because UPS requires employees to be able to lift up to 70 pounds, and she had no family/medical leave remaining, UPS forced her to take an extended, unpaid leave of absence. She eventually lost her medical coverage. After the birth of her child, Young returned to work. She claims discrimination based on her gender and disability under the Americans with Disabilities Act (ADA) and the Pregnancy Discrimination Act (PDA). The district court granted UPS summary judgment, and the Fourth Circuit U.S. Court of Appeals affirmed.

Soon after the high court granted certiorari, the Equal Employment Opportunity Commission issued guidelines on the subject. It stated that, “By enacting the PDA, Congress sought to make clear that ‘[p]regnant women who are able to work must be permitted to work on the same conditions as other employees; and when they are not able to work for medical reasons, they must be accorded the same rights, leave privileges and other benefits, as other workers who are disabled from working.’ The PDA requires that pregnant employees be treated the same as non-pregnant employees who are similar in their ability or inability to work.”

Ballman, author of Stand Up For Yourself Without Getting Fired: Resolve Workplace Crises Before You Quit, Get Axed or Sue the Bastards, said that the EEOC summarized existing requirements to clarify the law, particularly regarding accommodations for pregnancy-related disabilities. Employers have always had to give equal light duty and leaves of absence to pregnant employees and employees with another reason for inability to work or perform duties.

“The latest guidance makes this requirement crystal clear,” Ballman said. “It also makes clear—because some courts apparently didn’t understand—that lactation is a pregnancy-related medical condition …  . It seems clear to me, and hopefully will be clear to the court, that the law requires employers to accommodate pregnant employees if they accommodate employees who make workers’ compensation claims, but we’ll have to wait for the decision to see.”

Murphy said there is a good-faith disagreement on the interpretation of the PDA. Circuit courts were split on how to interpret it. The latest guidelines give insight into how the EEOC views claims, but ultimately, it doesn’t answer the question. The Supreme Court could make them change it in less than a year.

As with any issue, employers need to be sure they are in tune with their state’s laws. Some states already provide significant protections for pregnant women. Plus, the ADA applies to some pregnancy issues. Every case requires a fact-specific analysis. The EEOC guideline is just teeing up the issue—stay tuned.

LGBT discrimination

With rampant changes around the country regarding same-sex marriage, it’s no surprise that one of the issues coming to the forefront is whether sex discrimination includes LGBT employees. Ballman said the EEOC warns that employers can’t discriminate on the basis that an employee is transgendered, or based on sexual stereotypes, and cases are starting to make their way to the appellate courts. She said the courts seem to be coming down on the side of the LGBT employees in many situations.

“Employers need to be aware that any discrimination against LGBT employees may run afoul of Title VII, along with any state and local laws prohibiting such discrimination,” she said.

Murphy said LGBT rights are protected in Connecticut, so I’ve seen very few cases filed on this basis. Although Connecticut added gender identity to its anti-discrimination statute back in 2011, Murphy noted that in December 2014 the Department of Justice switched its position and indicated that it will now interpret the Civil Rights Act as extending to protect discrimination claims based on gender identity, too. This is a large shift by the Department of Justice, which brings its interpretation of Title VII into line with previous guidance issued by the EEOC and with prior executive orders issued by President Obama for companies contracting with the federal government.

Even with these protections, how individuals present their gender in the workplace, or how supervisors react based on their perceptions of gender and gender-related issues, may continue to be an issue in discrimination cases in the future. Murphy cited as an example a case in which the Fifth Circuit U.S. Court of Appeals found an iron worker proved his claim that he was harassed and retaliated against because he did not conform to his supervisor’s view of how a man should act (Equal Employment Opportunity Commission v. Boh Brothers Construction Company, No. 11-30770 [5th Cir.; Sept. 30, 2013]. The en banc court said there was enough evidence to support the jury’s conclusion that the worker’s supervisor harassed him because of sex. Specifically, the EEOC offered evidence that the crew supervisor thought the plaintiff was not a manly-enough man and taunted him tirelessly. The jury awarded $201,000 in compensatory damages and $250,000 in punitive damages, but the Circuit Court reversed the punitives. The case settled in 2014.

Keep anti-bias policies fluid

A new employment discrimination angle is always on the horizon. Experts advise monitoring theories that might impact your company and regularly review policies, training and benefits to ensure they are keeping up with developing law.