Does Perception Equal Reality for Title VII Employment Discrimination?

One major difference between the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 is that the ADA explicitly protects employees who are discriminated against because of an employer’s perception that they are disabled, although in reality they may not be. Title VII employment discrimination, on the other hand, does not recognize the concept of an employer discriminating against an employee based on that employer’s perception that an employee is a member of a protected class. Accordingly, a Title VII plaintiff historically has a higher burden of proof in establishing their prima facie case. Traditionally, although the same act of “discrimination” would not be the basis for an employment discrimination cause of action where the worker is not a member of a protected class, recent case law has demonstrated a trend towards expanding protections under Title VII to include an employer’s perception that an employee is a member of a protected class.

Two recent cases in particular are illustrative of this trend in employment discrimination. In Kallabat v. Michigan Bell Telephone Co., a federal judge ordered that a Michigan man’s case on perceived religious discrimination go forward. Mr. Basil Kallabat, a dark-skinned man of Iraqi descent, and a self-proclaimed non-Muslim, suffered an adverse employment action while working as a customer service representative. Even though a Title VII claim based on his color, gender, or national origin would be unimpeachable, Mr. Kallabat’s claim centered on an element of perceived religion. The plaintiff claimed that when he wore a hat backwards and a co-worker said it looked like a “topi” (a skullcap worn by Muslim men for religious reasons) and other workers starting laughing at Plaintiff as a result. Further, on another occasion, there was graffiti etched into the door of a bathroom stall of one of Defendant’s offices depicting two buildings similar to the Twin Towers with a plane hitting one of them and a caption that stated that the plaintiff is learning how to fly. After learning of the graffiti, the Area Manager said that Plaintiff was oversensitive, emotional, and unable to take the joke during a crew meeting. The Court denied the defendant’s motion for summary judgment, holding that a reasonable jury could find that the incidents are evidence of discrimination based on the perception that Plaintiff was a Muslim. Similarly, in Arsham v. Mayor & City Council of Baltimore, an Iranian engineer’s perceived Title VII claim survived summary judgment on the basis that her supervisor’s mistaken belief that she was Indian, and not Iranian, should not save the employer from Title VII liability.

With this potentially looming expansion of workplace religious employment discrimination protection, it is imperative that both management and employees know their respective rights as they relate to federal, state, and municipal ordinances. The Gilbert Law Group can help you navigate this fast changing legal arena.

 Schedule a consultation by calling (631) 630-0100.

 Contributed by Michael B. Engle

SYSTEMATIC WAGE THEFT BY BRONX PAPA JOHN’S FRANCHISEE LEADS TO JAIL TIME, AG SCHNEIDERMAN’S FIRST CRIMINAL WAGE AND HOUR CASE

Employees who earn hourly wages are entitled to minimum wage and time-and-a-half for overtime, among other guarantees. When employers skirt this rule by misclassifying workers as independent contractors (whether intentionally or negligently), most penalties are limited to the civil realm. In other words, the employers will have to pay the difference to all affected workers, a fine to the U.S. Department of Labor, and other expenses arising out of the episode. For the first time, the Office of the New York State Attorney General recently secured criminal charges in a wage theft case, over and beyond these civil penalties.

 Abdul Jamil Khokhar owns nine Pizza Papa John’s franchises in Bronx, NY, under his company BMY Foods, Inc. Mr. Khokhar had been under investigation since 2013 for failing to pay and report overtime premiums. While his workers appear to have been lawfully paid for regular hours, Khokhar’s criminal scheme involved making overtime payments in cash, under fictitious names corresponding to the workers on the payroll, and at the regular hourly rate. Furthermore, Khokhar’s filed tax returns did not include any references to the pseudonymous workers, meaning that Khokhar represented that his workers worked up to, but not past, the overtime threshold—which Attorney General Eric T. Schneiderman disproved.

 On July 15, 2015, Khokhar pled guilty to his scheme. He will be sentenced on September 21. As a result, Khokhar will spend sixty days in jail, pay $230,000 in back pay to his employees, pay the same amount in additional liquidated damages, pay another $50,000 in other civil penalties, and BMY Foods, Inc. will have to designate an internal compliance officer and submit to independent audits.

 Wage theft is a crime that can result in substantial liability to the employer. Meanwhile, hourly employees are entitled to minimum wage and overtime premiums. The requirements placed on employers by the Wage Theft Prevention Act go much further however, than merely ensuring an employee is paid minimum wage and time and a half for overtime. If you need help in pursuing or defending a wage theft claim, do not hesitate in calling the Gilbert Law Group, (631)630-0100.

Contributed by Michael B. Engle

WHAT COULD BROWN HAVE DONE FOR RELIGION? EEOC BRINGS CLASS-ACTION RELIGIOUS DISCRIMINATION LAWSUIT AGAINST UPS, Contributed by Michael B. Engle

In a continuation of its evident agenda to expand protections for religious discrimination, the EEOC has set its sights on the UPS. United Parcel Services (UPS) prides itself in being masters of logistics. UPS drivers are encouraged to take three right turns instead of one left turn in order to not have to idle in traffic, are taught how to buckle their seat belts while starting their trucks in order to save time, and are held accountable for almost every action they take while on the job. In its pursuit of uniformity, UPS also has a dress code and grooming policy for its employees, but according to the U.S. Equal Employment Opportunity Commission (EEOC), UPS is unlawfully stalling on accommodating some of its drivers’ sincerely held religious beliefs. Discrimination based on religion has become a developing area of workplace law.

Last June, the EEOC won a Supreme Court case against Abercrombie & Fitch, on behalf of a young Ms. Samantha Elauf, of Tulsa, OK. In Elauf’s case, she interviewed for a position while wearing a hijab (a head covering, as worn by some Muslim females), and was not hired. Abercrombie claimed that it could not accommodate the hijab without compromising their “look book” to which its employees must adhere, but the EEOC prevailed, on the theory that this practice unduly discriminated against Muslims, in violation of Title VII of the Civil Rights Act of 1964.

 The EEOC’s new Title VII claim against UPS is a class action claim, on behalf of Muslim, Rastafarian, and other employees who have been injured by UPS’s strict grooming policy. As UPS’s policy currently stands, male supervisors, as well as male truck drivers who interact face-to-face with customers, are prohibited from wearing beards and from growing their hair below collar length.

 The EEOC cites anecdotes from two victims. In 2005, a UPS hiring official in Rochester, NY alleged told Bilal Abdullah, a Muslim, that “God would understand” if he shaved his beard to get a driver helper job, and could instead seek a package handler job that required no customer contact. UPS hired him for neither position. Meanwhile, in Fort Lauderdale, FL, a Rastafarian part-time load supervisor claims that his manager “didn’t want any employees looking like women,” in objection to his dreadlocks.

 While UPS currently claims that it “is confident in the legality of its employment practices,” it is imperative that employers act carefully in order to avoid litigation. If you feel that your employer’s rules discriminate against your religion, or if you are the employer and want guidance in your policies, contact the Gilbert Law Group today, (631)630-0100.

Department of Labor Proposes to Double Income Level for Salaried Employees to be Exempt From Overtime and Minimum Wage

On July 6, 2015, the U.S. Department of Labor announced its proposal to double the income level required for an employee to be exempt from overtime and minimum wage requirements. It is important to note that this is merely a proposal, and not an official rule. But it demonstrates how serious the DOL is as it relates to updating the exemptions. Also it should put employer’s on notice to pay attention as these changes could significantly impact business of all shapes and sizes.

Under the new proposal, the minimum weekly salary for exempt employees, presently $455 per week or $23,660 per year (http://www.dol.gov/whd/overtime/fs17a_overview.pdf), would increase to the 40th percentile of weekly earnings for full-time salaried workers in the United States, estimated to be $970 per week or $50,440 per year in 2016. Further, the minimum annual salary required for the Highly Compensated Employee exemption, presently $100,000 per year (http://www.dol.gov/whd/overtime/fs17h_highly_comp.pdf), would increase to the 90th percentile of weekly earnings for full-time salaried workers in the United States, which is currently $122,148; and these compensation requirements would automatically increase annually in the future based on a yet to be determined formula. The DOL also announced that it is considering, revising the job duties required for exempt employees, and whether non-discretionary bonus or incentive pay should be considered toward the minimum salary requirement for Highly Compensated Employees.

If you have any questions or concerns regarding how these changes can impact your business, call Gilbert Law Group today, (631)630-0100.

NLRB Expands Concept of Protected Concerted Activity

On April 30, 2015, the National Labor Relations Board handed down a decision which expanded upon a prior theory of protected concerted activity. It had already expanded the concept of protected concerted activity in the past by classifying communications which are “inherently concerted” despite not being designed to engender “group action.” This case was brought before the Board as a result of an employee being terminated after discussing her job security with another employee.

The concept of protected concerted activity gives employees the right to act together to try to improve their pay and working conditions, with or without a union. If employees are fired, suspended, or otherwise penalized for taking part in protected group activity, the National Labor Relations Board will fight to restore what was unlawfully taken away. Historically this concept as only applied to group action.

In Sabo, Inc., however, the Board determined that the discussion between the two employees was “inherently concerted” because job security “[is] a vital term and condition of employment and the ‘grist on which concerted activity feeds’” and concerns about job security have a powerful impact on the rest of a work force and are protected whether or not engaged in for the purpose of inducing group action. In the past, only such communications regarding wages were extended this protection. Now it is extended to job security. Employers should anticipate that the current Board will find other subjects of concern to employees to be likewise protected.

Should you be experiencing an issue involving protected concerted activity, call Gilbert Law Group today.

Spanish Speaking Employees Bring Lawsuit Over English-only Rule At Work

Can an employer require its employees to speak only English at work? That question will be answered in a lawsuit brought against Delta Airlines by a group of Spanish speaking airplane cabin cleaners. The employees claim that a shift manager barred workers from speaking Spanish after a company, Gate Gourmet, took over the contract to clean Delta’s planes at Los Angeles International Airport. Most of the 14 employees speak little to no English but had been performing their jobs for years.

According to the national counsel for the Mexican American Legal and Educational Fund which is representing the plaintiffs, “They’re essentially muted. They’ve got to walk around with their mouth shut. So it is humiliating and denigrating, and it makes it harder for them to do their job.” Gate Gourmet said that the comppany does not have an English-only rule. Under California law, employers can require employees to speak English only if there is a legitimate business reason.

The court complaint alleges that employees must rapidly clean airplane cabins and restock supplies before passengers board the planes. They communicate over radio regarding when and where they need to go. The employer did not warn employees what penalty would be imposed if they violated the language rule. The company may have difficulty in defending the case as it appears that the shift policy is only applied to workers on the evening shift. Morning and night crews continue to speak in Spanish, according to the complaint.

The employees assert that they complained to the human resources department but received no answer. The action seeks to require Gate Gourmet to withdraw the rule and pay damages and attorneys’ fees.

If you have any issues with a claim, potential claim, or questions regarding the issues raised by this lawsuit or other workplace policies, please calll the Gilbert Law Group at 631.630.0100.

 

 

New Kind of Employment Discrimination to be Banned

Ten states, the city of Chicago, and now, New York City will soon bar most New York City employers from using credit checks and credit history to deny hiring according to an amendment to the city’s human rights law. This new category of employment discrimination may usher in a wave of changes nationwide.

The rationale, according to its supporters, is that applicants’ consumer credit history bears no correlation to their future job performance, and can be used to discriminate. They argue that those most likely to have poor credit are people of color. City Councilman Brad Lander stated, “Credit checks for employment unfairly lock New Yorkers out of jobs for a whole set of unfair reasons: divorce, health care debt, student loans, identity theft, simple errors.” Although Mayor DiBlasio has not signed the law yet, his spokeswoman said, “Credit discrimination is oftentimes an unnecessary obstacle to New Yorkers getting jobs.” In opposition, Councilman Mark Weprin likened the restrictions to those of a “nanny state,” adding that it would be difficult to prove definitively that credit problems were the reason an applicant was rejected.

There are exemptions to the law. Positions excluded are chief financial officer-like jobs with authority over company or third-party funds, or assets worth over $10,000, police officers, elected officials, and others who must report their finances to the Conflicts of Interest Board, as well as those with access to intelligence, national security information, or trade secrets. Additional compromise language was included in an effort to protect the interests of businesses and consumers. New York City’s law is tougher on the financial industries than other similar laws nationwide.

Nonetheless, we can expect similar measures to increasingly pop up across the nation as states and other municipalities attempt to address this growing concern over employment decisions being based on credit history and/or credit problems.

If you have questions or encounter issues or problems with this or any employment-related matter, call the Gilbert Law Group at 631.630.0100.

 

 

Arbitrator Holds Employer MLB Did Not Have Right To Suspend Josh Hamilton For Violating Employer’s Substance Abuse Policy

             In a stunning decision laid down on April 3, 2015, an independent arbitrator ruled that baseball athlete Josh Hamilton, an outfielder for the Los Angeles Angels, would not be suspended for self-reporting a drug relapse on February 25. Major Leave Baseball as a substantive substance abuse policy in its Collective Bargaining Agreement and the slugger’s contract had specific language not permitting him to drink alcohol or ingest drugs. The decision shocked Hamilton’s employer, perhaps because he had already been in a sports treatment program due to a history of drug and alcohol issues. Instead of being suspended, Hamilton will be eligible to play and will be able to collect $23 million as part of his salary with the Angels. The matter was submitted to an independent arbitrator after a treatment board created by Major League Baseball’s joint drug program could not determine whether Hamilton’s actions were a violation of his treatment program. The arbitrator did not give any reasons for finding in favor of Hamilton.

            Major League Baseball, the party advocating for his suspension, expressed disappointment with the arbitrator’s decision and in a statement said it would “seek to address deficiencies in the manner in which drugs of abuse are addressed under the program in the collective-bargaining process.” The current collective bargaining agreement is in place until after the 2016 baseball season.

            Employers who find themselves in a similar situation to that of the Los Angeles Angels should consult an attorney for counsel as to their collective-bargaining agreements contain controlling language when matters are left to independent arbitrators.

Pregnancy Discrimination Act: Employment Retaliation Claims Are At an All-Time High

The Supreme Court will decide whether UPS violated the Pregnancy Discrimination Act (PDA) when it refused to provide a temporary light duty assignment to Peggy Young when she was pregnant 7 years ago before giving birth to her daughter, Triniti. The assignment would have allowed Young to work but avoid lifting heavy packages, as her physician had ordered. The issue is whether UPS violated the law by its policy of providing temporary light duty only to employees who had on-the-job injuries, were disabled under the Americans with Disabilities Act, or lost their federal driver certification. It is well-settled that drawing a distinction between pregnant and nonpregnant employees  is generally unlawful pregnancy discrimination, unless there is a legitimate business reason to justify the distinction.

In 1978, Congress passed the PDA in response to the Supreme Court ruling that workplace rules that excluded pregnant workers from disability benefits and insurance coverage was not sec discrimination under Title VII of the Civil Rights Act of 1964. In this case UPS argues that unless Young can show that it intentionally discriminated against her, she has no case. Young contends that UPS “told me basically to go home and come back when I was no longer pregnant.” Young is now 42 and it has taken 7 years to get before the Court.

The Obama administration and 120 Democrats in Congress have submitted a brief supporting Young’s position. Moreover, the EEOC has updated guidance to employers to clarify that they should accommodate workers like Young. Likewise, UPS has since changed its policy so that pregnant employees are eligible for the light duty assignment.

Nonetheless, the Court’s decision is expected to have far-reaching impact in workforces across the nation as 75% of women entering the workforce today will become pregnant at least once while employed, and many will be forced to work throughout their pregnancies, or face possible termination during their pregnancies or upon their return. Stay tuned for the decision.

 

Employers Be On Alert: Employment Retaliation Claims Are At an All-Time High

Employers be on alert: employment retaliation claims are at an all-time high.

The number of discrimination charges filed with the U.S. Equal Employment Opportunity Commission (EEOC) in the past year reached the lowest level since 2007, based on published statistics from the EEOC. Retaliation charges, on the other hand, are at their highest percentage ever of claims filed ever.

The EEOC’s Strategic Enforcement Plan for fiscal years 2013-2016 lists retaliation issues as one of six areas of priority for the agency. The EEOC describes this priority as “targeting policies and practices which discourage or prohibit individuals from exercising their rights under the employment discrimination statutes or that impede EEOC’s enforcement efforts.”

The 2014 statistics, and the priority placed on EEOC retaliation enforcement, are a significant reminder that employers should take the necessary steps to minimize the chance of a retaliation claim even when the underlying discrimination claim is not meritorious. Employers should make sure to consult a knowledgeable employment attorney to ensure their employment policies are up to date. Where there is an active discrimination claim against an employer, there are many acts which if taken, could constitute retaliation. In such circumstances, is important that the that an employer seek counsel before taking action.