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Free speech rights didn’t save firefighter from misuse of employer’s internal email system

September 27th, 2016  |  Ron Miller  |  Add a Comment

First Amendment free speech rights, including freedom of expression and religion, are among the hallowed traditions of our republic. Those rights notwithstanding, a Washington fire captain’s persistent use of the fire department’s internal email system to disseminate Christian messages to coworkers were not enough to save him from discharge for engaging in such conduct, ruled a Washington Court of Appeal in Sprague v. Spokane Valley Fire Department. Concluding that the email system was a nonpublic forum, and that limiting its usage to fire department business was reasonable and viewpoint neutral, the court determined that the employee was unable to prove that his First Amendment free speech rights were violated.

Christian firefighters fellowship. The captain formed a Christian fire fighters fellowship and began distributing newsletters and meeting notices for that group via the fire department’s internal email system, often including scriptural passages in his messages and mentioning the topics being discussed at upcoming meetings. The fire chief reminded him the email system was to be used for fire department business only and that emails announcing meetings should not include religious references.

Nevertheless, the captain refused to follow the written policy and continued to use the email system in much the same way as he had before. After a series of progressive disciplinary actions culminated in his termination; and the civil service commission upheld his termination on grounds of insubordination, he brought suit in state court asserting that his First Amendment rights had been violated.

Judicial scrutiny. As an initial matter, the appeals court observed that when it is alleged that the government is improperly infringing on free speech rights, the first question is to identify the nature of the forum that is being regulated in order to determine what level of judicial scrutiny applies. In a traditional public forum, the government generally can only impose content neutral restrictions on the time, place, and manner of expression, if those restrictions are narrowly tailored to serve a significant government interest and leave open adequate alternative fora.

Nonpublic forum. However, in a nonpublic forum, the government may impose restrictions on speech so long as they are “reasonable in light of the purpose served by the forum and are viewpoint neutral.” Here, the appeals court found that the fire department’s internal email system was a nonpublic forum. While there was evidence that employees were permitted to use the system when it was incidental to work, such as arranging for a babysitter because of the necessity of working late or posting flyers about events or occasions, these exceptions were “narrowly drawn.”

Thus, the department’s email policy met the requirements for a nonpublic forum. The policy was viewpoint neutral in that it completely banned private usage (absent work-related necessity) without regard to content. And it was reasonable to limit the use of a government computer system to government business. Further, there was no evidence the department had ever opened its email system to permit “expressive activity.” Therefore, the email system must be considered nonpublic, and the employer’s policy was constitutional, the appeals court concluded.

“As applied” challenge. Moreover, the captain did not truly contest the validity of the written policy on its face. Rather, his argument challenged the policy as it was allegedly practiced rather than as it was written. However, the appeals court found no need to reach his “as applied” challenge due to collateral estoppel. The court noted that at the civil service commission proceeding on his termination, the commission specifically found no evidence of any alternative “as applied” policy or any uneven application of the email rules. Finding that all of the elements for collateral estoppel were satisfied—identity of issues, identity of parties, and so forth—the captain could not collaterally attack the administrative factual findings.

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GAO issues report critical of how OFCCP focuses its enforcement efforts, cites insufficient training

September 23rd, 2016  |  Cynthia L. Hackerott  |  1 Comment

The OFCCP’s process in selecting federal contractors for compliance evaluations, the agency’s primary tool for enforcement, is not designed to focus on contractors with the greatest risk of noncompliance, the U.S. Government Accountability Office (GAO) has concluded in a report that identifies multiple deficiencies in the OFCCP’s enforcement efforts. In the September 22, 2016 report, the GAO also found that the OFCCP lacks a mechanism to ensure contractors are voluntarily complying with nondiscrimination requirements by annually updating their Affirmative Action Plans (AAPs). Further, the OFCCP is not providing consistency in its enforcement efforts across its offices because it is failing to timely train new compliance officers and provide essential ongoing professional training for all of its compliance officers, the report concluded.

In addition, although regulatory requirements regarding contractors’ nondiscrimination obligations have changed—thereby requiring contractors to significantly adjust their policies, practices, and data collection systems in order to comply—the agency has reduced the outreach and compliance assistance efforts that can help contractors understand these changes and workers understand their protections. The report advises that, while enforcement has been the OFCCP’s predominant approach to achieving its mission, outreach, compliance assistance, and guidance in support of voluntary compliance provide important opportunities to extend the agency’s influence beyond the few contractors that are evaluated and help the OFCCP better achieve its mission.

Based on its conclusions, the GAO made six recommendations to the Department of Labor (DOL), including that the OFCCP develop a contractor selection process that reflects contractor noncompliance risk, develop a mechanism to monitor contractors’ compliance with AAP requirements, and review and assess the clarity of its contractor guidance. The DOL agreed with the GAO’s recommendations, the report notes.

Republican Congressman requested report. The GAO issued the 56-page report in response to a request from House Education and the Workforce Committee Chair John Kline (R-MN) and Workforce Protections Subcommittee Chair Tim Walberg (R-MI). The report opens with a letter addressed to the Congressmen which notes that “[S]ince fiscal year 2011, the OFCCP has changed its enforcement practices and updated its regulations to, among other things, reflect recently issued amendments to Executive Order 11246 that established new nondiscrimination requirements, and to increase contractors’ collection of data on workers’ and applicants’ veteran and disability status. Protected worker advocacy organizations have lauded OFCCP’s efforts and many of these changes. However, other stakeholders, including some in the federal contracting community, are concerned OFCCP’s efforts are imposing excessive compliance burdens on contractors, including what they perceive as overly broad and unnecessary document and data requests, as well as unreasonably numerous and lengthy compliance evaluations.”

What did the GAO analyze? In the report, the GAO notes that the OFCCP has jurisdiction over roughly 200,000 federal contractor establishments. The report assessed how the OFCCP conducts supply and service compliance evaluations, including the methodology, resources, and results, and evaluated the OFCCP’s outreach, assistance, and guidance efforts to assist contractors in complying with the requirements it enforces. To conduct this assessment, the GAO reviewed 6 years of OFCCP data—from fiscal years 2010 through 2015—on evaluations and enforcement, including the number of cases referred to the DOL’s Office of the Solicitor for administrative enforcement proceedings.

The GAO also analyzed both OFCCP Information System data and a nongeneralizable sample of 43 randomly selected files of compliance evaluation cases generally closed in fiscal years 2013 through 2015, ensuring representation from the six OFCCP regions and a variety of outcomes with respect to how cases were closed and types of violations identified. It reviewed agency policy, procedures, and operating plans used to conduct and oversee the compliance evaluation process and assessed them against standards for internal control in federal government. Further, the GAO interviewed a nongeneralizable sample of 24 contractor—4 in each of OFCCP’s 6 regions—with and without experience with a compliance evaluation; managers and staff in the OFCCP’s headquarters and all six regional offices; and representatives of 14 national organizations representing contractors interests and 13 civil rights advocates and organizations representing protected groups, such as veterans, individuals with disabilities, and working women. In addition, the GAO examined prior reviews of OFCCP by GAO, DOL’s Office of Inspector General, and others, and interviewed managers and staff in OFCCP’s headquarters, all six regions, and one district or area office in each region. The district or area offices were selected to reflect a range of workloads and geographic diversity.

Weaknesses in compliance evaluations impact effectiveness of enforcement. There are weaknesses in the OFCCP’s process for selecting contractors for compliance evaluations that make it challenging to know the extent to which EEO requirements are followed, the GAO notes. The OFCCP conducts evaluations for about 2 percent of federal contractor establishments annually, and since 2010, about 78 percent of evaluations found no violations and about 2 percent had discrimination findings. However, when the OFCCP selects contractors for evaluations, it does not use a generalizable sample that would allow for conclusions about the federal contractor population. Therefore, it does not have reasonable assurance that it is focusing its compliance efforts on those contractors with the greatest risk of noncompliance, the GAO concluded. Moreover, because the OFCCP distributes its scheduling list—or assigns compliance evaluations to OFCCP district or area offices—based on the number of compliance evaluation officers located in each district and the physical address of the contractor establishments, there may be geographic imbalances in the way establishments are selected for review. In addition, some contractors reported inconsistencies among the OFCCP’s regional and district offices in the way compliance officers interpret the legal requirements enforced by the OFCCP, and these inconsistencies may be exacerbated by lack of training, the GAO concluded.

Production of AAPs. During evaluations, the OFCCP requested and reviewed documents related to contractors’ equal employment efforts, including their AAPs. In 2015, close to 85 percent of evaluated contractor establishments did not submit their AAP within 30 days of the OFCCP’s request and were granted extensions in some cases, the GAO found. This finding, the GAO reasoned, suggests that the OFCCP processes do not ensure that all contractors are complying with their obligation to complete and annually update an AAP.

Decrease in compliance assistance and outreach; improvement needed. Since 2012, OFCCP’s outreach and compliance assistance activities to assist contractors and other stakeholders, such as protected workers and industry groups, have declined as the agency refocused its activities on enforcement, and some stakeholders said guidance could be clearer. Outreach activities, such as community group presentations and job fair participation, decreased more than 80 percent from 2012 to 2014. Some stakeholders told GAO that workers, applicants, and contractors may benefit from more outreach activities. OFCCP’s compliance assistance activities, such as seminars, for contractors—are down 30 percent since 2012. Many contractors told GAO they do not feel comfortable contacting OFCCP for assistance and hire third party support to help comply with federal nondiscrimination and affirmative action requirements. While contractors generally found OFCCP guidance helpful, both stakeholders and contractors said the guidance could be clearer to help them understand the requirements. Without clear guidance, contractors may not be able to understand their equal employment obligations.

Expert commentary on GAO recommendations. John C. Fox, a former OFCCP official and current president of Fox, Wang & Morgan P.C. in Los Gatos, California, shared his insights on the GAO’s six recommendations with Employment Law Daily. The following is a listing of the GAO recommendations, along with Fox’s insights regarding them.

(1) GAO: To ensure that federal contractors are complying with equal employment opportunity requirements, the Secretary of Labor should direct the Director of the OFCCP to make changes to the contractor scheduling list development process so that compliance efforts focus on those contractors with the greatest risk of not following equal employment opportunity and affirmative action requirements.

Fox comment: “The GAO’s suggestion to design a new audit selection system is long overdue. The current OFCCP audit selection system dates back in design and function to 1982 when Robert Gerlerter, a senior OFCCP Policy Branch Manager, and I designed and deployed the system still in place at OFCCP today with only a few modernizing adaptions. The OFCCP has not changed the basic simplistic design I conceived over a two-day period over 30 years ago. I had intended the audit system to remain in place as an emergency ’stop-gap’ selection tool for, perhaps, two years until OFCCP could design a more thoughtful and well-designed audit selection system. The current system merely compares the employment of minorities and women in the (now) ten EEO-1 categories and selects for audit the [g]overnment contractor with the fewer minorities and women employed within the contractor’s same industry (measured by NAICS code) and in the same general geographical location. OFCCP observed deficiencies in this system by the late 1980s. Nonetheless, the system—then called EEDS (Equal Employment Data System) and now called, since the [George W.] Bush Administration, the FCSS (Federal Contractor Selection System)—has endured under these two different names over the years because no Administration could conceive of and design a better one.

“OFCCP has been working for the last several years to convert its audit selection tool to cause it to base decisions wholly on the compensation paid minorities and women. OFCCP published this announcement in its ill-fated Equal Pay Report proposed Rule (which OFCCP withdrew last December 2015). However, the EEOC has now championed the same idea in its currently pending EEO-1 proposal to collect pay data from all employers which file EEO-1 reports. Bottoming OFCCP audit selection decisions on compensation data broadly reported by EEO-1 category, without refinement for job title and shift information, is another colossally failed architectural design. Many Government contractors so commented to the EEOC in response to its proposal. [ELD note: The EEOC published its original proposal to add the collection of summary pay data to the EEO-1 Report in the Federal Register on February 1, 2016 (81 FR 5113- 5121), and a revised proposal was published in the Federal  Register on July 14,  2016 (81 FR 45479-45497.)]

“Studies of past violation trends is the best predictor of future violations coupled with ‘Quick-in’/’Quick-out’ audit diagnostics similar to the ‘Tiered Review’ strategy  the Clinton Administration successfully inaugurated in 1996. Surprisingly, the Obama Administration discarded the Clinton Administration ‘Tiered Review’ audit model in favor of what has turned out to be a deeply failed ‘Deep Dig’ strategy finding no more and no fewer alleged discrimination occurrences than  ‘Quick-in’/’Quick-out’ audits. ‘Deep Dig’ audits, however, take many years longer  to accomplish than ‘Quick-in’/’Quick out’, and they cost both OFCCP and contractors much more to complete and exhaust both contractors and OFCCP personnel with no greater reward for the taxpayers or applicants and employees. ‘Deep Dig’ audit strategies simply mean fewer audits, more cost and less back pay collections.”

(2) GAO: To ensure that federal contractors are complying with equal employment opportunity requirements, the Secretary of Labor should direct the Director of OFCCP to develop a mechanism to monitor AAPs from covered federal contractors on a regular basis. Such a mechanism could include electronically collecting AAPs and contractor certification of annual updates.

Fox: “The GAO recommendation for OFCCP to annually collect AAPs and annual certifications of annual updates is an old idea every Administration since 1972 has considered and rejected. But, the concept, as modified as noted below, has great merit. OFCCP’s regulations at 41 CFR Section 60-2.31 have required such annual reports and summaries since 1978. However, OMB [(the Office of Budget and Management)] has never authorized such extensive and burdensome data collections and no Administration has thought it had sufficient personnel to even review the hundreds of thousands of detailed reports which would consume tens of millions of pages of space and which would annually flood into OFCCP. Accordingly, no Administration has thought this idea sufficiently important to push the issue with OMB.

“The modification which would ease the burden on contractors and allow OFCCP an instant and digital diagnostic of potential contractor discrimination would be to cause contractors to annually deliver digitized copies to OFCCP of the Disparity Analyses for hires and promotions they develop as part and parcel of each Executive Order 11246 AAP. Contractors would not like this idea, but it would be VERY effective to allow OFCCP to better target contractors with potential problems for audit. OFCCP does not need or want the Affirmative Action portions of the AAP, just the discrimination diagnostics contractors already are required to prepare BUT NOT SEND TO OFCCP except in OFCCP’s (currently) only 2,000 audits per year.”

(3) GAO: To ensure that federal contractors are complying with equal employment opportunity requirements, the Secretary of Labor should direct the Director of OFCCP to make changes to the current scheduling list distribution process so that it addresses changes in human capital and does not rely exclusively on geographic location.

Fox: “The GAO is right. OFCCP no longer needs to audit based on where OFCCP has brick and mortar district offices. Given the change in 1996 to no longer require onsite audits to occur in each and every OFCCP compliance review, and given the practice which has emerged in the last 10 years for OFCCP to come onsite in only about 5 percent of OFCCP audits, OFCCP could audit from any location. Indeed, most OFCCP audits are conducted by phone and via e-mail today. Accordingly, because of the advent of remote office technology and the infrequency of onsite audits, OFCCP should now audit based on the location of the contractors which are highest on OFCCP’s audit priority list regardless of where OFCCP is geographically officed.

“Correspondingly, the same forces operating to free OFCCP to audit wherever it determines to be the best audit sites irrespective of the presence or absence of an OFCCP local district office, also opens the path for greater specialization within the agency and to consolidate all OFCCP personnel into perhaps 6-10 offices and close perhaps 40 existing brick and mortar office locations.  Former OFCCP Chicago Regional Office Administrator Sandra Zeigler came to this same conclusion 10 years ago, consolidated district offices into her Chicago Regional Office and saved almost $1M in payroll and travel/training expenses per year by not staffing 6-10 District Director positions in the Chicago Region.”

(4) GAO: To ensure that federal contractors are complying with equal employment opportunity requirements, the Secretary of Labor should direct the Director of OFCCP to provide timely and uniform training to new staff, as well as provide continuing training opportunities to assist compliance officers in maintaining a level of competence to help ensure quality and consistency of evaluations across regions and district offices.

Fox: “GAO’s recommendation that OFCCP improve its training is very appropriate. OFCCP training materials are currently very poor and Compliance Officers are at a very low ebb in training, especially as to discrimination law. Recently, I have deposed investigators under oath in OFCCP litigation in cases making major claims of unlawful employment discrimination. I found that they have never been trained in discrimination law, never trained in investigations, recordkeeping of their audit files, statistics, and/or evidence or in interview techniques. The lack of training is a long-standing problem exacerbated by very high turnover, inadequate training materials, and insufficient funds to properly train OFCCP’s workforce.”

(5) GAO: To ensure that federal contractors are complying with equal employment opportunity requirements, the Secretary of Labor should direct the Director of OFCCP to review outreach and compliance assistance efforts and identify options for improving information provided to federal contractors and workers to enhance their understanding of nondiscrimination and affirmative action requirements to ensure equal employment opportunities for protected workers.

Fox: “GAO’s recommendation that OFCCP extend more training to contractors concerning outreach and recruitment will fail so long as OFCCP continues to engender distrust in the contractor community about the audit selection system OFCCP uses. Contractors are afraid that if they raise their hand in the crowd, OFCCP will audit them since their question infers a lack of knowledge and a consequent lack of compliance. Instead, contractors rely upon resources they trust including their HR consulting firms and law firms, trade associations and member-driven groups ([such as] DirectEmployers/Industry Liaison Groups (ILGs) , etc).”

(6) GAO: To ensure that federal contractors are complying with equal employment opportunity requirements, the Secretary of Labor should direct the Director of OFCCP to assess existing contractor guidance for clarity to ensure that contractors have information that helps them better understand their responsibilities regarding nondiscrimination and affirmative action requirements to ensure equal employment opportunities for protected workers.

Fox: “OFCCP has poor trainers and cannot teach what they do not yet themselves understand. Contractor reaction to OFCCP training Webinars the agency offers to the public is uniformly poor, coast to coast.  As a result, ILGs rarely invite OFCCP personnel to train at their monthly and quarterly conferences.  OFCCP personnel, themselves, reportedly often drop off quickly in droves from OFCCP National Office-sponsored webinars because agency personnel widely view their fellow employees as poor trainers.

“To make GAO’s otherwise well founded recommendation effective, OFCCP would have to first: hire persons knowledgeable about:

(a)  discrimination law,

(b)  how private sector employers operate (too many OFCCP personnel—especially in its senior ranks in Washington D.C.—have never worked in the private sector and do not understand employment systems private companies deploy, let alone in the hundreds of existing and emerging markets); and

(c) training investigators (most of OFCCP’s trainers are just out of college or law school, have not been trained to teach and have little experience in either teaching or public speaking).

Finally, OFCCP would also have to write entirely new training materials.”

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What defines race? Not dreadlocks. But what defines professional?

September 22nd, 2016  |  Joy Waltemath  |  Add a Comment

By Joy P. Waltemath, J.D.

A case that is getting a lot of attention is the Eleventh Circuit’s ruling last week that although dreadlocks may be culturally associated with race, they are not an immutable characteristic of black persons. As such, the court refused to find that an African-American job applicant whose job offer was rescinded because she refused to cut off her dreadlocks had plausibly alleged intentional race discrimination. The company she applied to had a race-neutral grooming policy which stated, among other things, that “hairstyle should reflect a business/professional image. No excessive hairstyles or unusual colors are acceptable.”

Race-neutral grooming policy. The applicant completed an online application, came in for an in-person interview, and was one of several candidates hired, contingent on lab testing and other paperwork. During a private meeting to discuss a testing scheduling conflict, the HR manager asked her whether her hair was in dreadlocks; when she said yes, HR advised her that the company could not hire her “with the dreadlocks” because “they tend to get messy, although I’m not saying yours are, but you know what I’m talking about.” The applicant refused to cut her dreadlocks, and the job offer was rescinded.

A “racial characteristic.” In the opinion of the EEOC, which sued on behalf of the applicant, this was intentional race discrimination. The EEOC said that race “is a social construct and has no biological definition;” that “the concept of race is not limited to or defined by immutable physical characteristics;” that the “concept of race encompasses cultural characteristics related to race or ethnicity,” including grooming practices; and although some non-black persons “have a hair texture that would allow the hair to lock, dreadlocks are nonetheless a racial characteristic, just as skin color is a racial characteristic.”

Definition of race. What does “race” encompass under Title VII? More likely than not, reasoned the Eleventh Circuit, “race,” as a matter of language and usage, refers to common physical characteristics shared by a group of people and transmitted by their ancestors over time. It found little support for the EEOC’s position that the 1964 Congress meant for Title VII to protect “individual expression . . . tied to a protected race.” Rather, as a general matter, Title VII protects persons in covered categories with respect to their immutable characteristics but not their cultural practices.

Characteristics vs. practices. Critically, the EEOC’s complaint did not allege that dreadlocks themselves are an immutable characteristic of black persons; in fact, it stated that black persons choose to wear dreadlocks because that hairstyle is historically, physiologically, and culturally associated with their race. The fact that dreadlocks are a “natural outgrowth” of the texture of black hair does not make them an immutable characteristic of race. Citing cases from the 1970s and 1980s, the court laid out the distinction: Discrimination on the basis of black hair texture (an immutable characteristic) is prohibited by Title VII, while adverse action on the basis of black hairstyle (a mutable choice) is not. That meant to the court that the EEOC failed to state a plausible claim that the company intentionally discriminated against the applicant on the basis of her race by asking her to cut her dreadlocks under its race-neutral grooming policy.

Employer policies. So what does this mean for employers and their attempts to maintain race-neutral grooming policies? The appeals court here set out a standard defining race-based discrimination based on “immutable characteristics,” not “mutable choices.”  This standard seems to suggest the kind of certainty that employers crave.

Consider the Army’s experience. But with black hair, the line between immutable characteristics and mutable choices can be more complicated, as the U.S. Army learned in 2014 when it first banned and then, several months later, rescinded its ban on a number of natural hair styles for black women. According to an article from the Army News Service, “the service determined in a review that authorized hairstyles announced earlier this year limited female Soldiers’ hair grooming options.”

“Racially insensitive?” The Army began reviewing its policies on female hairstyles soon after it released its earlier version of the regulation, after the chair of the Congressional Black Caucus sent a letter signed by her and more than a dozen black female lawmakers to the Secretary of Defense. The letter said the new rules were ‘biased and racially insensitive,” and it sought a review of the new policy. Eventually the Department of Defense also requested a review.

The New York Times, commenting on the controversy before the Army relaxed its policy, published an op-ed piece explaining that, while the issue “may seem like a whole lot of something about nothing,” what the original policy’s detractors were seeking “is a policy that reflects a basic understanding of black hair. For most black people, hair naturally grows up and out—think of the shape of an Afro—not down. But the Army’s regulations assume that all hair not only grows the same way but can be styled the same way.” Said the newspaper, “The argument isn’t that the Army does not have the right to enforce a conservative code—this is the Army, after all—but that it must consider the diversity of hair textures.”

What is professional? The same holds true for employer grooming policies: Employers would be wise to consider the diversity of hair textures when they evaluate what presents a “business/professional image” or what is an “excessive” hairstyle. Remember, HR had advised the applicant that the company could not hire her “with the dreadlocks” because “they tend to get messy, although I’m not saying yours are, but you know what I’m talking about.” If the grooming standard for a business/professional image is, in reality, whether or not hair is “messy,” perhaps “messy” should be spelled out in the policy. Here, based on what the HR manager said, it was anticipatory messiness that was the problem with the applicant’s dreadlocks—that they would “tend to get messy.” There’s certainly nothing wrong with requiring a business/professional image, or even banning “excessive hairstyles,” but employers need to make sure their definition of either, defined or undefined, takes into account the reality of diversity and their own, perhaps unexamined, cultural perspectives.

The case is EEOC v. Catastrophe Management Solutions, 11th Cir., September 15, 2016.

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Clinton is not the only professional woman held to a double standard

September 15th, 2016  |  Lorene Park  |  Add a Comment

By Lorene D. Park, J.D.

Let me preface this by saying I am neither Democrat nor Republican; I focus less on party and more on qualifications. For that reason, and because I’m an employment law attorney interested in discrimination, one thing that is driving me crazy as I watch the election season unfold is the standard to which Hillary Clinton is held in comparison to her male counterpart. But she is not the only woman in her shoes. Even today, after all the equal opportunity laws that our more enlightened society has passed, professional women too often have to bring much more to the table than a man would have to bring to receive a job, higher pay, or simply recognition for achievements. Some recent case decisions illustrate the point:

She violates policy and gets fired, he violates policy and gets her job. A female bank branch manager who was fired for violating the bank’s check cashing policies (by making funds immediately available to businesses despite prior overdrafts) was replaced by a male transfer from another location who had previously violated the same policy. Based on this evidence that the employer was more lenient with the male manager, the female former branch manager will get a trial on her claim of discrimination based on her status as a woman with young children, ruled a federal court in Connecticut (Gran v. TD Bank, NA, September 2, 2016, Bolden, V.).

Glass ceiling for older female attorneys. Reversing summary judgment against a 55-year-old female attorney’s sex discrimination and age discrimination claims under Title VII and the ADEA, the Fourth Circuit found that a lower court should have more thoroughly considered testimony by other female employees supporting the attorney’s claim that her employer maintained a glass ceiling that prevented older women from advancing. After working in the law department for over a decade, she was demoted from principal to senior associate, and when she raised concerns of sex discrimination, her supervisor suggested that she “transition out.” She left and was replaced by a 31-year-old male (Calobrisi v. Booz Allen Hamilton, Inc., August 23, 2016, per curiam).

Told to “play nicely within the boys’ club.” The only female employee at management level in a national air conditioning rental company claimed that, because of her gender, she was paid less; was excluded from management meetings and from training; had her suggestions ignored; and was told by a male VP that her title was too high for a woman, she should be more “submissive,” and she should “play nicely within the boys’ club.” She also described a workplace replete with sexist comments, pornography, minimization of female workers, and at least one daytime visit by strippers. In the opinion of a federal court in New York, this was more than enough to support a sex discrimination claim (Conforti v. Sunbelt Rentals, Inc., August 15, 2016, Spatt, A.).

Repeatedly asked how a woman could command men. A female captain in the New Orleans Police Department who was denied a position as police chief for the city of Baton Rouge after being asked numerous questions about how a woman could command a mostly male department had judgment in her favor affirmed on her Title VII and state-law discrimination claims. The Fifth Circuit found that the interview questions, plus the fact that she received the high score on the civil service exam and was highly educated (in contrast to the selected male candidate), showed gender bias (Overman v. City of East Baton Rouge, July 11, 2016, per curiam).

Simply maddening. With these (and similar cases) out there, is it so surprising that a highly qualified female candidate for president would be repeatedly grilled on every flaw or failing, political and personal, while a lesser qualified (based, at least, on norms that applied generally in previous presidential elections during the last 50 years) male candidate appears unscathed by his racist and sexist comments, by the failure to disclose tax information, by the many lawsuits alleging fraud and contract breaches, and by so many other red flags? No, it is not surprising, it is maddening.

Equal employment opportunity should be standard operating procedure. Yet the wage gap between women and men persists, as does the opportunity to assume leadership roles. Indeed, a June 2016 analysis by Korn Ferry of the top 1,000 U.S. companies found that the percentage of women in CEO, CFO, COO, and other “C-Suite” positions is still dramatically lower than men.

Legislative and other efforts to combat sex discrimination. On the bright side, legislators are continuing efforts to improve the situation. For example, Senators Patty Murray (D-Wash.) and Dianne Feinstein (D-Cal.) announced that they had sent a letter to the General Counsel of the U.S. Soccer Federation requesting information on pay disparities between the men’s and women’s U.S. National Soccer Teams. And to help eliminate the wage gap, Congresswoman Eleanor Holmes Norton (D-D.C.), the first woman to chair the EEOC, along with cosponsors Rosa DeLauro (D-Conn.) and Jerrold Nadler (D-N.Y.), announced a plan to introduce a bill barring employers from asking for salary history before extending a job or salary offer. This addresses a trend in which women start at lower salaries than men, and because employers often set wages based on an applicant’s prior salary, women are unable to catch up. States are also addressing the issue. Indeed, Massachusetts enacted a bipartisan pay equity law (S. 2119) that will also bar employers from asking for salary histories before making job offers.

Meanwhile, the EEOC continues its enforcement efforts against intentional discrimination. In addition to filing suits on behalf of aggrieved women, the agency recently issued new resource documents addressing the EEO rights of women in the workplace, including the EEOC’s Equal Pay and the EEOC’s Proposal to Collect Pay Data, which explains that collecting pay data “will assist employers in evaluating their pay practices to prevent pay discrimination and strengthen enforcement of federal anti-discrimination laws.” The question-and-answer document also explains employees’ rights to equal pay. In addition, the EEOC issued a Q&A, Legal Rights for Pregnant Workers under Federal Law, which discusses pregnancy-related protections under the Pregnancy Discrimination Act and Americans with Disabilities Act.

The OFCCP has also taken action, replacing its outdated sex discrimination guidelines from 1970 and announcing a final rule on new sex discrimination regulations that align with current law and address the realities of today’s workplace. The rule addresses pay discrimination, harassment, pregnancy accommodations, gender identity bias, family caregiving discrimination, and more. The OFCCP website provides additional information, including a fact sheet.

It’s a long road. The takeaway here is cup-half-empty or cup-half-full. We may have “come a long way,” but all you need to do is view political commentary on the approaching election to realize women still have a long way to go.

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Caution: NLRB GC treats employee misclassification as an unfair labor practice

September 13th, 2016  |  David Stephanides  |  Add a Comment

In an Advice Memorandum released on August 26, 2016, the NLRB General Counsel determined that a Regional Office should issue a complaint alleging that an employer violated the National Labor Relations Act by misclassifying its drivers as independent contractors.

According to the General Counsel’s Division of Advice, Pac-9 Transportation told its drivers that they were independent contractors and had no right to form a union, requiring them to execute a “lease and transportation agreement,” but according to the advice memo, treated them as employees in virtually every respect. This misclassification of its drivers as independent contractors interfered with and restrained the drivers in their exercise of Section 7 rights in violation of Section 8(a)(1) of the Act.

8(a)(1) violation. After spending the bulk of its discussion on why the drivers were statutory employees, the advice memo turned to the Sec. 8(a)(1) violation. “Although the Board has never held that an employer’s misclassification of statutory employees as independent contractors in itself violates Section 8(a)(1), there are several lines of Board decisions that support such a finding,” it said.

  1. First, the Board has held that an employer violates Section 8(a)(1) when its actions operate to chill or curtail future Section 7 activity of statutory employees.
  2. Second, employer statements to employees that engaging in Section 7 activity would be futile violate Section 8(a)(1).
  3. Third, the Board has also found misstatements of law to constitute an unlawful interference with employees’ Section 7 rights if the statement reasonably insinuates adverse consequences for engaging in Section 7 activity.

Here, misclassification of Pac-9’s statutory employees as independent contractors operated as a restraint on and interference with its drivers’ exercise of their Section 7 rights. The employer continued to insist in its communications with drivers that they were independent contractors, even after the Region determined that the drivers were statutory employees, which the Division of Advice suggested was “without any legitimate business purpose other than to deny the drivers the protections that inure to them as statutory employees, and operates to chill its drivers’ exercise of their Section 7 rights.” Misclassification also suppresses future Section 7 activity by imparting to employees that they do not possess Section 7 rights in the first place. And, it works as a preemptive strike to chill employees from exercising their rights under the Act during a period of critical importance—the union’s organizing campaign, according to the Division of Advice.

The Division of Advice also cited a memo from the employer conveying that “unionization would be futile.” The memo stated that the employer “only contracts with owner operators and independent contractors[,]” that it “[d]oes not have any employee drivers[,]” and that only “employees (not owner operators or independent contractors) have the right to form a union[.]” This memo was issued after the employer had purportedly settled prior unlawful activity, and it demonstrated to employees that “resort to the Board’s processes are futile.” Finally, in light of the employer’s awareness that the Region already determined that its drivers were statutory employees, the employer’s continued insistence to its drivers that they are independent contractors was “akin to a misstatement of law that reasonably insinuates adverse consequences for employees’ continued Section 7 activity,” the memo concluded.

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