Category Archives: Sex Discrimination

Quirky Question #286: Best Practices on Restroom Access and Terminology for Transgender Employees

Question: There has been a lot of news coverage lately on restroom policies related to transgender employees.  Can you provide some guidance on how to structure our restroom-use policies to be both lawful and respectful of all employees?  More generally, can you help me understand the appropriate, respectful terminology in this area?  I certainly don’t want to offend anyone on purpose, and I also don’t want to do so by mistake. Answer→

Quirky Question #266: What’s up with Pregnancy Discrimination?

Question: Over the summer, we heard a lot about new guidance on pregnancy discrimination. What do we need to know to ensure we are complying with local, state, and federal laws on pregnancy discrimination?

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Wal-Mart v. Dukes, No Glue in Aisle 23

Walmart v. Dukes, No Glue in Aisle 23

The most sweeping putative employment-discrimination class action in history was not too big to fail. The United States Supreme Court has rejected an effort by three female employees of Wal-Mart to represent a class of some 1.6 million women who had been employed by the company at its 3,400 stores nationwide at any point since 1998 and who allegedly had experienced gender discrimination in the areas of promotions and compensation. The class, proceeding on both disparate-impact and disparate-treatment theories, sought billions of dollars in backpay, as well as injunctive and declaratory relief, to redress Wal-Mart’s alleged violations of Title VII. After the case was filed in 2001, the United States District Court for the Northern District of California certified the class in 2004. The Ninth Circuit affirmed in a 2010 en banc ruling.

For a case to proceed as a class action in federal court, plaintiffs must demonstrate all four requirements of Rule 23(a) of the Federal Rules of Civil Procedure: that (1) the class is sufficiently numerous that “joinder of all members is impracticable,” (2) questions of law or fact are “common to the class,” (3) “the claims or defenses of the representative parties are typical of the claims or defenses of the class,” and (4) “the representative parties will fairly and adequately protect the interests of the class.” Additionally, they must satisfy one of three standards under Rule 23(b). The Dukes class was certified under Rule 23(b)(2), which requires a showing that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.”

A unanimous Supreme Court reversed the grant of class certification on June 20, 2011. The Court did not decide whether Wal-Mart had, in fact, discriminated against the women, only whether they could proceed as a class. Justice Scalia authored the opinion of the Court, concluding that class certification was improper under Rules 23(a)(2)—the “commonality” requirement—and (b)(2). Four Justices joined the Court’s opinion with respect to Rule 23(b)(2) while dissenting on the commonality issue. Answer→

Quirky Question # 158, Reporting Harassment to the Harasser

Question:

Our company has a sexual harassment policy.  The policy makes clear that an employee who feels as though he or she has been harassed should report the problematic conduct to our Director of Human Resources.  The policy also provides that, if more convenient, or for any other reason, the employee also can report the harassing behaviors to anyone else in management.  Essentially, we’ve tried to make it as easy as possible for an employee to report harassment so our company can address the employee’s concerns effectively.

One of our employees recently filed a Charge of Discrimination with the EEOC.  She claims that she was sexually harassed by the Director of Business Development, one of our company’s managers, and describes some pretty serious conduct.  In her Charge, she contends that she directly confronted this individual and advised him that his behaviors were unwelcome.  She also stated in her EEOC Charge that her direct communications with this individual constituted her “report” of sexual harassment to company management.

Surprise, surprise, our Director of Business Development never said anything to anyone else about this harassment “complaint”.  Is this legit?  Can the sole report of the harassment by the alleged victim of the harassment be made to the harasser? Answer→

Favoritism or Discrimination? Quirky Question # 149

Quirky Question # 149:

A female employee of our company filed a Charge with the EEOC that she has been discriminated against because one of our executives is involved in a relationship with a subordinate female employee.  Our employee argues that this person is receiving preferential treatment and that she is being deprived of opportunities as a result.  She claims that this is gender discrimination in violation of Title VII.  We have confirmed that the executive is involved in a relationship with the other female employee.  But, we do not understand how this could constitute a violation of Title VII. Answer→

Quirky Question # 145, Marital Status Discrimination

Quirky Question #145

I know you’ve written about the issue of terminating family members in other Blog posts.  And I know you recently discussed the nuances of terminating a family member in a closely held company.  We have a more vanilla issue.

Can we terminate a spouse of another employee we are terminating?  We just don’t think it would be a good idea to retain someone related to an embittered ex-employee.  Does this plan implicate anything relating to marital status?  (We are not terminating this individual because of her status as “married.”)  Your guidance would be appreciated. Answer→

Title II of the Genetic Information Act of 2008

Title II of the Genetic Information Nondiscrimination Act

On May 21, 2008, the Genetic Information Nondiscrimination Act of 2008, also referred to as GINA, was signed into law.  GINA includes two titles providing individuals with federal protections against genetic discrimination in health insurance and employment.

Title I addresses the use of genetic information in health insurance and provides that health plans and health insurers may not use genetic information for underwriting purposes, request or require genetic information prior to enrollment, or require an employee or the employee’s family members to take a genetic test.  Please see the Dorsey e-update posted November 13, 2009, for additional information on Title I.

Title II of the Act prohibits the use of genetic information in employment, prohibits the intentional acquisition of genetic information about applicants and employees, and imposes strict confidentiality requirements. Answer→