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Blog Update: Supreme Court Issues Decision On Religious Accomodation

Jon Allison

On Monday the Supreme Court issued its decision in the Samantha Elauf/Abercrombie & Fitch case ruling in favor of Elauf.  The Court held “Title VII forbids adverse employment decisions made with a forbidden motive, whether this motive derives from actual knowledge, a well-founded suspicion or merely a hunch.”  Abercrombie denied Elauf employment because she wore a headscarf to her interview that Abercrombie says conflicted with its dress code.  But Abercrombie did not tell Elauf of the dress code during the interview so Elauf did not know to request a religious accommodation allowing her to wear it.  Abercrombie then argued that Elauf never brought it up, so Abercrombie should be off the hook.  The Supreme Court found that Abercrombie at least suspected that Elauf wore the headscarf for religious reasons and it could have easily offered her the accommodation of allowing her to wear it.  This case makes it clear that employers can’t just put their head in the sand when it appears an applicant may request a religious accommodation.

This is an update on Jon’s original blog post from March 2, 2015 titled We Don’t Allow Hats. You Got A Problem With That? .  Click on the title to read the original post.

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A Step In The Right Direction For Working Parents

Jon Allison

Monday Blog

Massachusetts Attorney General Maura Healey will be providing to all employees in her office 6 weeks of paid parental leave.  This is a step in the right direction toward providing economic security for working mothers and fathers.  Others should follow suit and do even more.  Currently, under the Family and Medical Leave Act, which was passed in 1993, new parents in the United States are guaranteed 12 weeks of unpaid leave.  However, the United States lags far behind other industrialized nations with respect to leave provided to working parents.  We are the only nation that does not require paid leave and we offer the least amount of unpaid leave.  Most other countries require significantly more than 6 weeks of paid parental leave.  We have work to do.  Read more here.

A Literature/Gym Teacher And The Ministerial Exemption

Shaela Evenson was terminated last year from her Catholic school teaching job at Butte Central in Helena, Montana after the school learned she was unmarried and pregnant.  Evenson recently filed suit for pregnancy discrimination, sex discrimination and breach of contract.  The school and co-defendant the Roman Catholic Diocese of Helena is taking the position that Evenson cannot pursue any discrimination claims because she was a ministerial employee and the Supreme Court of the United States has recognized a ministerial exemption preventing such suits.  Evenson’s position is that the ministerial exemption only applies to employees “whose primary duties consist of engaging in church governance, supervising a religious order, or conducting religious ritual, worship or instruction.”  Evenson says the exemption doesn’t apply to her because she taught literature and physical education.  The school and diocese say the exemption applies because she led her homeroom class in a daily prayer, accompanied them to Mass, and took religious education classes.  See this article for additional information.

 

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Glass Ceiling For Asian Americans

Jon Allison

Monday Blog
According to a study conducted by Ascend Foundation (a group focused on Asian business issues) and released last week, major technology companies are much more likely to employ Asians as computer programmers than executives.  Ascend studied employment records of Google, Hewlett-Packard, Intel, LinkedIn and Yahoo from 2013.  Caucasians held 62 percent of professional jobs at the companies studied, but held 80 percent of executive jobs.  By contrast, Asians held 27 percent of professional jobs but only 14 percent were in executive positions.  The greatest disparity was between Caucasian males and Asian women.  For every 87 professional jobs held by Caucasian men, 1 was an executive job.  Only 1 out of every 285 professional jobs held by Asian women was an executive level job.  The report concluded that cultural differences may be one reason for the disparity.  Janet Wong, a co-author of the report, said her Chinese-American upbringing taught her “studying hard, getting good grades was all I needed to be successful.”  She said she then watched others climb the management ladder while she fell behind.  She attributed that to not putting time into building relationships.  Co-author Buck Gee said “Asians are perceived as better engineers but poor leaders.  Even if you want to be a leader, and show that (you can), there’s implicit bias that you aren’t.”  A spokesperson for LinkedIn said they have “work to do in order to create greater diversity at our company.”
Articles from Fast Company, The New York Times and Santa Cruz Sentinel go in to more detail on this topic.

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Retaliation At Al Jazeera

Jon Allison

Monday Blog
Last week, Matthew Luke, a former employee of Al Jazeera America, filed a lawsuit in New York alleging retaliation for complaining of discriminatory conduct on the basis of gender and religion.  According to the lawsuit, Osman Mahmud, senior vice president of broadcast operations and technology, engaged in discriminatory conduct toward female employees, including terminating them without any legitimate reason, taking them off projects and excluding them from meetings, emails and other company communications directly related to their work.  He also allegedly made anti-Semitic comments.  At a December 2014 meeting, high ranking officials within the company discussed the fact that “they had no choice but to accept and deal with Mr. Mahmud’s offensive and discriminatory conduct because he was so well connected within the company.”  In February 2015 Luke began reporting to Mahmud and began receiving direction to remove work from female employees and take them off of email chains.  Luke complained to Diana Lee, executive vice president for human resources.  The company acknowledged that numerous other similar complaints had been made about Mahmud.  Just 10 days later Luke was terminated and told he did not fit into the company’s culture.  After the lawsuit was filed early last week, the company abruptly announced that Lee and Dawn Bridges, executive vice president for communications, were leaving the company.  Sounds like they didn’t fit in either.  For more information read this blog.

No Equal Pay At Farmers

Last week a class-action lawsuit was filed in Northern California on behalf of female attorneys against Farmers Insurance claiming it pays female attorneys significantly less than male attorneys for the same work.  According to the lawsuit, male attorneys are paid more, given higher profile work assignments, and more frequent pay raises and promotions.  Named Plaintiff Lynne Coates says she is being paid less than male attorneys with “decades less” experience.  She says one male attorney with similar experience is being paid nearly twice as much for the same work.  She also says that when she complained to her boss she was demoted to a paralegal position.  Read more here.

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Complaining About Harassment To The Harassing Supervisor Is Protected Activity

Jon Allison

Monday Blog
The Sixth Circuit last week affirmed a jury verdict of over 1.5 million dollars in a sexual harassment and retaliation case against New Breed Logistics, a Tennessee supply-chain logistics company.
New Breed has a warehouse in Memphis, Tennessee where temporary employees made up 80% of its workforce during the relevant time frame.  These temporary employees were not given the company handbook containing the company’s sexual harassment policy.
James Calhoun, a New Breed Supervisor, sexually harassed three female temporary employees by regularly making sexual comments and sometimes making sexual contact with them, including pressing his “private parts” against them.  The three women and one male who witnessed the conduct complained to Calhoun and asked him to stop his behavior.  Calhoun told them he would not get in trouble and if anyone went to human resources to complain he would have them fired.  All four were then terminated in quick succession either directly by Calhoun or by someone else after Calhoun claimed there was a performance issue.
After a 7-day jury trial the jury found New Breed liable for sexual harassment and retaliation and awarded over 1.5 million dollars in compensatory and punitive damages and other monetary relief.  New Breed requested a new trial but that request was denied resulting in the appeal to the Sixth Circuit.
With respect to the retaliation claims, on appeal, New Breed argued that complaining only to the harassing supervisor and telling him to stop was not enough to constitute protected activity.  The Sixth Circuit had never addressed this issue before, but the Fifth Circuit had surprisingly found this argument persuasive when it addressed the question previously in 2004.  The Sixth Circuit found that oral complaints about harassment made to the harassing supervisor did constitute protected activity under Title VII.  It noted, “[i]mportantly, the language of the opposition clause does not specify to whom the protected activity must be directed.”
With respect to the harassment claims, the Sixth Circuit found that New Breed could not avoid liability using the Faragher/Ellerth affirmative defense which allows an employer to avoid liability for harassment where it can show that it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior,” and the plaintiffs “unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.”  The Court said this defense is simply not available where employees suffer a “tangible employment action” such as termination.  New Breed probably would have had a tough time proving the defense anyway in light of the fact that it failed to distribute its handbook containing the sexual harassment policy to temporary workers and because a call to the complaint hotline about Calhoun was not properly investigated.
The Court also left in tact the punitive damages award finding the evidence sufficient that the employer engaged in the conduct with malice or with reckless indifference to the federally protected rights of the plaintiffs.

The opinion is attached here.

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