On May 10, 2019, the D.C. Circuit issued its opinion in Figueroa v. Pompeo, 923 F.3d 1078 (D.C. Cir. 2019), raising the bar for employers to articulate legitimate non-discriminatory business reasons for taking alleged unlawful actions against plaintiffs. As we explained in a prior post, under the McDonnell Douglas burden shifting framework, after the plaintiff makes his/her prima facie case of discrimination, the employer has an opportunity to rebut plaintiff’s prima facie case by articulating legitimate non-discriminatory business reasons for taking the alleged discriminatory action. And, if the employer is able to do that, the burden shifts back to the plaintiff to show that the employer’s stated reasons are a pretext for discrimination. Figueroa now makes it more difficult for employers to successfully argue that the actions they took were for legitimate non-discriminatory business reasons. So, what happened in the case, and what should employers do going forward?
The facts of the case are straightforward. Figueroa, a Puerto Rican employee, alleged that his employer, the State Department, discriminatorily passed him over for promotions. At the trial court level, the State Department moved for summary judgment, claiming that it did not discriminate against Figueroa, but rather decided not to promote him because other candidates were better qualified. The State Department explained that candidates for promotion are ranked based on substantive criteria called “core precepts.” These precepts consist of six performance areas: (1) leadership skills; (2) managerial skills; (3) interpersonal skills; (4) communication and foreign language skills; (5) intellectual skills; and (6) substantive knowledge. The State Department explained that, although Figueroa
Recently, the Social Security Administration (SSA) resumed their practice of sending Employer Correction Requests (informally “no-match letters”) to employers advising them that information submitted on an employee’s Form W-2 does not match SSA records. The SSA stopped sending no-match letters in 2012, but in recent months, employers across many industries have received letters.
The no-match letter states that there is an error with at least one name and the Social Security Number (SSN) on a W-2 that is submitted by the employer. Importantly, the no-match letter does not imply that the employer or the employee intentionally reported incorrect information. They are educational in nature to advise employers that a correction may be needed for the SSA to post the correct wages to the right record because discrepancies could occur due to typographical errors, unreported name changes (such as changes due to marriage or divorce) and inaccurate employer records.
If your company has received a no-match letter, consider taking the following action: Continue reading
As you know, Title VII of the Civil Rights Act of 1964 (Title VII) is one of the principal federal statutes prohibiting employment discrimination. It prohibits discrimination on the basis of race, color, national origin, religion, and sex (including gender and pregnancy). Other federal statutes that prohibit employment discrimination include Title I and Title V of the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), the Genetic Information Nondiscrimination Act (GINA), and the Uniformed Services Employment and Reemployment Rights Act (USERRA). But, employers must also be aware of state and local laws that extend protection beyond these federally protected classes. In the District of Columbia, for example, it is a violation of the law to discriminate on the basis of personal appearance, a category of protected class that has caused employers significant confusion with respect to what kinds of dress and grooming policies they may lawfully enforce. So what does personal appearance discrimination mean? And what should employers do to minimize their legal risk and ensure they do not run afoul of such laws?
Under the D.C. Human Rights Act (DCHRA), personal appearance is one of 20 protected traits for people that live, visit or work in D.C. Personal appearance is defined as the outward appearance of any person, irrespective of sex, with regard to bodily condition or characteristics, manner or style of dress, and manner or style of personal grooming, including, but not limited to, hair style and beards. To flesh this out, the D.C. Office of Human Rights, which administers Continue reading
As we paused on Memorial Day to remember those who gave their lives in active military service, employers should not forget that employees who are currently serving in the Army, Navy, Air Force, Marines and Coast Guard (collectively, the “uniformed services”) are afforded a broad range of rights and protections by the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”). USERRA is a federal law that protects civilian job rights and benefits for veterans and members of the Guard and Reserves. USERRA, like the Family and Medical Leave Act, includes both substantive job restoration rights—at the conclusion of one’s service—as well as non-discrimination and non-retaliation provisions. The job restoration rights provided by USERRA, however, impose heightened obligations on employers in an effort to ensure the returning service member is not disadvantaged when reentering the workforce because of his or her service. Many employers also do not realize that returning service members—those that return to the same employer from which they took leave to serve—may only be terminated for just cause for certain periods of time depending on the length of their service.
No discrimination or retaliation. Let’s start with the easy part. As you might expect, employers must not deny initial employment, reemployment, retention in employment, promotion or any benefit of employment to an individual on the basis of his or her military service. Additionally, an employer cannot retaliate against an individual by taking any adverse employment action against him or her because the individual has acted to enforce protections under USERRA, testified or otherwise Continue reading
In employment discrimination cases, employees often seek to prove their claims by presenting indirect evidence of discrimination. Employees will seek to present evidence that they were treated differently than similarly situated employees outside of their protected class. On March 21, 2019, the Eleventh Circuit adopted a new test for analyzing these “comparators” by issuing its decision in Lewis v. City of Union City, Ga.. In doing so, the Court rejected its previous standards for analyzing comparators. Before Lewis, courts in the Eleventh Circuit evaluated “similarly situated” comparators under either the “nearly identical” or “same or similar” standard, and sometimes even used both standards simultaneously. The fact that two standards had emerged, and at times, were even used together, without any clear guidance on their proper use, caused the Court to call the entire situation “a mess.” Accordingly, in an effort to clean up and clarify the proper standard for comparator evidence, a full panel of the Court took on Lewis so that it could address whether “similarly situated” should be interpreted as “same or similar,” “nearly identical,” or something else. Ultimately, the Court decided to depart from its previous standards, and went with something else. Now, in order to prove intentional discrimination by indirect evidence, a plaintiff must show that employees “similarly situated in all material aspects” received preferential treatment. The Court also reiterated that this burden remains with the plaintiff as part of plaintiff’s prima facie case. So, what was the case about, and what does it mean for employers?
After the announcement of a new policy requiring all police officers to carry Tasers and receive a five-second shock, Jacqueline Lewis, an African-American detective with the Union City Police Department in Union City, Georgia, was scheduled to receive such training. She had also been scheduled to receive pepper spray training. But, before receiving either of these, Ms. Lewis submitted a doctor’s note Continue reading
On Monday, April 22, 2019, the United States Supreme Court granted petitions for certiorari for three cases that center on the question of whether Title VII of the Civil Rights Act of 1964 (“Title VII”) protects LGBT rights. Two of the cases, Altitude Express v. Zarda and Bostock v. Clayton County, Georgia, concern whether, under Title VII, sex discrimination includes discrimination on the basis of an employee’s sexual orientation. The third case, R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, poses the question of whether the Title VII prohibition against sex discrimination prohibits gender identity discrimination. Due to the similarity of the issues, the Supreme Court has consolidated the Altitude Express and Bostock matters for briefing and oral argument. The Supreme Court’s ultimate decision in each of these three matters is significant because it will settle current Circuit splits, as well as disagreement among Agencies in the Federal government, on the scope of Title VII.
As discussed in a prior blog post, in Altitude Express, the Second Circuit joined the Seventh Circuit in finding that Title VII does protect employees from being discriminated against based on sexual orientation. Specifically, the Second Circuit held that the text of Title VII necessarily includes sexual orientation as “…the most natural reading of [Title VII]’s prohibition on discrimination ‘because of…sex’ is that it extends to sexual orientation discrimination because sex is necessarily a factor in sexual orientation.” The Seventh Circuit in Hively v. Tech Community College, similarly determined that a reading of Title VII in the current cultural and legal context includes sexual orientation in the scope of Title VII. Continue reading
Several states have taken steps toward legalizing marijuana in some form. However, these laws differ in many respects and raise interesting questions for employers, especially as they relate to off-duty conduct.
While some states such as Arizona, Delaware, and Minnesota provide specific statutory protections for employees that have a valid prescription for medical marijuana, there has been an increase in litigation under state disability discrimination laws for failure to accommodate an employee’s use of marijuana to treat a disability. The lingering question remains whether an employer’s decision to take an adverse action against an employee for using medical marijuana outside the workplace is protected under the Americans with Disabilities Act (“ADA”) or a state’s disability Continue reading