But Your Husband Has A Job…

But Your Husband Has A Job…

For decades, companies paid female employees less because “her husband has a job” or because a male coworker “has a family to support.” Finally, a court called this pay practice what it is:  blatant discrimination.

 In Kellogg v. Ball State University d/b/a Indiana Academy for Science, Mathematics, and Humanities, Cheryl Kellogg was hired to be a teacher. The hiring director told her that she “didn’t need any more [starting salary] because he knew her husband worked.” Kellogg suffered the effects of this “outdated and improper approach” to her starting salary for the next 12 years.

When Kellogg finally sued for pay discrimination under Title VII and the Equal Pay Act, the Academy said that the pay differential was not discriminatory.  Instead, it claimed Kellogg’s lower pay was because of  (1) salary compression (paying newer hires more) and (2) difference in Kellogg and the male coworkers’ qualifications.

 In granting a motion for summary judgment, the district court ruled these two reasons were “undisputed” gender-neutral explanations for the salary disparity. 

 On appeal, Seventh Circuit said that the Academy “blatantly discriminated against Kellogg by telling her that, because her husband worked, she did not need more starting pay.” Such clear discrimination calls the sincerity of the Academy’s rationales into question.” It then reversed and remanded the case.

 This sharp rebuke was well deserved. 

 The district court erred in two significant ways.  First, it did not consider the statement that Kellogg did not need more pay because her husband worked.  It characterized that statement as a “stray remark.” The Seventh Circuit quickly dismissed that argument, noting that this statement “was not water cooler talk.” Instead, it was a straightforward explanation by the Academy’s director, who had control over setting salaries, as to why Kellogg did not need more money.  As it said, “few statements could more directly reveal the Academy’s motivations.”

 Second, the district court did not consider the discriminatory statement because it had been made outside of the statute of limitations period.  The Court of Appeals reminded that under the paycheck accrual role, as codified by the Lilly Ledbetter Fair Pay Act of 2009, a new cause of action for pay discrimination arises each time a plaintiff gets a paycheck resulting from an earlier discriminatory compensation practice—even one that occurred outside of the statute of limitations.

And, even apart from the paycheck accrual rule, it held Kellogg could rely on the statement’s to show that the Academy’s explanation for the pay disparity is pretextual because “time-barred acts [are allowed] as support for a timeline claim.”

Because the blatantly discriminatory statement that Kellogg did not need more pay because her husband worked put the Academy’s stated reasons for the pay different in dispute, the Seventh Circuit remanded this case.

That companies still make decisions about what to pay female employees based on a perception of whether a woman “needs” the money “because her husband works” or because her male coworker has a “family to support” is disheartening.

Let’s hope employers start to recognize this for what it is:  blatant discrimination.

Racial Slurs in the Workplace

Racial Slurs in the Workplace

Discrimination takes many forms.  One form is a hostile work environment created when an employee is subjected to racial slurs and a racially intimidating, hostile, or offensive working environment because of the employee’s protected characteristic –such as race, sex, or age.

To prove this discrimination, the employee must show the harassment was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.

With racial slurs, the question arises:  how many racial slurs does it take to prove such a hostile work environment?

This question is particularly troubling when the employee has been called the N-word.  Some courts, recognizing the N-word as one of the most odious racial epithets,  have held that even one use of the N-word might be enough to create a hostile work environment. Other courts, including the Fifth Circuit Court of Appeals, disagree.  While the Fifth Circuit agrees that the N-word is a highly offensive term, under its precedent, one use of the N-word alone (or with other racial slurs) may not be enough for an employee to even create a fact issue as to whether the employee was subjected to a hostile work environment.

On January 15, 2021, Robert Collier asked the U.S. Supreme Court to answer the question of how many racial slurs it takes to create a hostile work environment.  Robert Collier v. Dallas County Hospital District d/b/a Parkland Hospital, Case No. 20-1004. A copy of the petition for certiorari is at:  https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/20-1004.html.

Robert Collier worked at Parkland Hospital in Dallas as an operating room aide. During his employment, he was called a “boy” by white nurses. He had to use an elevator in which the N-word was etched into the wall of an elevator. Two swastikas were painted on the wall of a storage room.  Collier complained about the N-word etched in the elevator and the two swastikas to Human Resources and his department head, but no immediate action was taken.  Though the N-word was eventually scratched out in the elevator, Collier believed it was done by “some black person who was tired of seeing it” because it was not done professionally.  Parkland’s Operating Room Director knew of the swastikas and testified that he planned to cover them up “at some point,” but the two swastikas remained on the walls for nearly two years. 

Collier was terminated and sued, arguing he had been subjected to a hostile work environment while he worked at Parkland. He lost. 

The district court granted a motion for summary judgment.  It held that, while the N-word is racially offensive and universally condemned and that the swastikas could be interpreted as offensive, under guiding Fifth Circuit precedent, no reasonable jury could find Parkland’s conduct to be sufficiently hostile or abusive.  The Fifth Circuit affirmed this ruling.

Had Collier lived in a different part of the country where courts recognize that one use of a racial slur might create a hostile work environment, Collier might have won his lawsuit.

Now, Collier and his attorneys are asking the Supreme Court to answer these questions:

  • Whether an employee’s exposure to the N-word in the workplace is severe enough to justify sending his hostile work environment claim to a jury?
  • Whether and in what circumstances racial epithets in the workplace are “extremely serious” incidents that are sufficient to create a hostile work environment.

We do not know if the Supreme Court will take this case and answer these questions.  However, given the split of authority between the circuits, getting clear answers to these questions would benefit both companies and employees.

Stay tuned.

Equal Pay:  It is Fundamental

Equal Pay: It is Fundamental

The importance of equal pay just got a shout out in a recent Fifth Circuit case. The money quote is:

“Equality of opportunity is fundamental to who we are, and to who we aspire to be, as a nation. Our commitment to this ideal is deeply engrained in our Constitution and in numerous state and federal laws. And a core component of our promise of equal opportunity, regardless of the circumstances of one’s birth, is non-discrimination in pay. … But what we do not accept are pay disparities due to the employee’s race or sex.”     Lindsley v. TRT Holdings, Inc. 2021 WL 62251(5th Cir. 2021).

Here, Sarah Lindsley was Food & Beverage Director at the Omni Hotel in Corpus Christi.  Her starting pay was $11,649 lower than that of her male predecessor. Her starting salary was also lower than his two male predecessors.  

Lindsley sued for pay discrimination under the Equal Pay Act, Title VII, and Texas Labor Code Chapter 21. To establish a prima facie case under the Equal Pay Act, Lindsley had to show that “she performed work in a position requiring equal skill, effort, and responsibility under similar working conditions” and that she was paid less than members of the opposite sex.  To establish her prima facie case under Title VII and Texas Labor Code Ch. 21, Lindsley had to show she was paid less than members of the opposite sex for “work requiring substantially the same responsibility.”

Lindsley showed that the three men who held the exact same job she held before her were all paid more than she was paid. Yet, the district court concluded Lindsley introduced no evidence to show that her job as Food & Beverage Director was similar to her predecessors aside from having the same job title.

The Fifth Circuit made short shrift of that argument, saying “far from failing to show that her job was in any way similar, Lindsley showed that she held the same position  as Walker and Pollard did, at the same hotel, just a few years after that did—and that she was paid less than they were.”  It concluded that “no more is needed to establish a prima facie case.”

Because Omni had not put forth a non-discriminatory reason to explain the pay disparity, the Fifth Circuit reversed and remanded the case.

Here, Lindsley’s predecessors were paid more than she was paid.  One often forgotten fact is that a successor in a job can also be cited as an appropriate comparator.  See 29 CFR sec. 1620.13(b)(4). 

The Fifth Circuit got this case right.  If a woman is paid less than the men who preceded her in the same job, a claim exists.

What remains to be seen in further litigation is how the company will explain the reason for the pay difference.  Stay tuned.

The COVID-19 Vaccines

The COVID-19 Vaccines

With the first vaccines approved to fight the COVID-19 virus, many ask if an employer can require a COVID-19 vaccination as a condition of employment.

The answer is complicated.   

The first place to look for an answer to this question is the EEOC’s COVID-19 Technical Assistance Questions and Answers.  This guidance is available at www.eeoc.gov.  The EEOC regularly updates this guidance as we obtain new information about COVID-19 and the vaccines.

As a general rule, an employer can require employees to get vaccinated. However, there can be exceptions to this general rule because of ADA disability concerns and religious discrimination concerns. 

ADA Issues

An employee may have a disability that prevents the employee from getting the vaccine. There, two things could happen. First, an employer may argue that the employee could be terminated because the employee is not a “qualified employee” under the ADA.  Employees who directly threaten the health or safety of individuals in the workplace are not “qualified employees” under the ADA.  However, the employer would have to actually show that the employee poses a direct threat to others.

Before concluding that an employee who is not vaccinated poses a direct threat to other employees, the employer must individually assess the risk to others.  This assessment considers factors such as: (1) the duration of the risk, (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.

If an employer determines there is a direct threat from an unvaccinated person that cannot be reduced to a reasonable level, the employer can exclude the person from entering the workplace.  However, the company cannot just automatically terminate the employee.  Instead, the company must explore where there are other reasonable accommodations (such as working remotely) that would allow the employee to perform his or her job duties.

The second scenario—and the one likely to be far more common—is that an employee who cannot get the vaccination asks for an exemption from that requirement as a reasonable accommodation under the ADA. Again, an employer must assess each requested accommodation on an individualized basis.  If the employee can easily work remotely, that would be one easy accommodation.  In other cases, it might be trickier.  However, the employer could consider other steps (such as private office spaces, plexiglass dividers, etc.) that could protect the employees.

Sincerely held religious beliefs

The second area where claims may arise from a mandatory vaccine requirement is with employees whose sincerely held religious beliefs prevent the employee from receiving the vaccine. 

If an employee tells the employer he or she has a sincerely held religious belief preventing the employee from obtaining the vaccine, the employer must reasonably accommodate that religious belief unless it poses an “undue hardship.” An “undue hardship” is something having more than a de minimis cost or burden on the employer. 

Just like with the ADA, if an employee asks for an accommodation due to sincerely held religious beliefs, the company and the employee should together explore what reasonable accommodations can be made to accommodate that belief. 

Though a company may exclude the employee from the workplace if the employee cannot get vaccinated, it does not mean that the company can automatically terminate the employee.  Again, the company must explore other potential accommodations, such as remote work.

After such a hard year, companies and employees want things to return to normal.  The push to vaccinate employees soon is expected.  However, there may be legitimate reasons for some employees to request to be exempted from a vaccination requirement. 

This will be a tricky area to navigate in the coming months. If we can help, please contact us. 

Goals Gone Bad

Goals Gone Bad

Most people are ready to see the end of 2020 and are actively looking forward to the new year.  As with any new year, many people will be setting personal and business goals for 2021.

I am a firm believer in the importance of setting goals.  Many companies also believe in setting goals using the SMART goals framework.  This requires the goals to be Specific, Measurable, Achievable, Realistic, and Timely.

One thing that many people rarely talk about is the pitfalls in setting goals and how goals cause unethical behavior or unintended consequences. 

Wells Fargo is a perfect example of this. Sales employees who opened accounts for new customers were strongly encouraged to cross-sell credit cards and other banking products.  They were under intense pressure by their managers to meet these very aggressive (and sometimes mathematically impossible) sales goals.

What happened?  Employees under severe pressure to either meet those goals or be fired opened accounts without customer consent and issued credit cards without customer authorization.  This was all fraudulent activity.

When the scandal broke, Wells Fargo fired 5300 employees because of fraudulent sales activities and discontinued its sales quotas.  After legal costs, settlements, and regulatory penalties, this scandal cost Wells Fargo close to $3 billion.

Clearly, this is an example of goal setting gone awry.

Setting incentives for employees can be a good thing.  However, the incentives need to be sensible.

I once watched a television show featuring a concrete truck driver trying to get through heavy city traffic to deliver a load of fresh concrete.  If he got to the site too late, the concrete would have gone bad.  He then would have been fired because it would have been his third late load. At his company, once you delivered three loads late, you were fired.  The result was that he felt pressured to dangerously speed through crowded city side streets because he did not want to get fired.  Luckily, he did not get involved in a traffic accident and no one got hurt.  However, the pressure he felt to break traffic laws to save his job always stuck with me.

Companies do need to have goals and incentives for employees.  But companies also need to make sure those goals and incentives do not encourage employees to break laws or safety rules just to protect their jobs.  Companies must make sure they do not incentivize bad behavior. In this time of the pandemic and high unemployment rates, anyone with a job will do whatever he or she can do to keep that job. 

Smart companies will put these steps in place to protect both the company and the employee:

  • Create realistic goals and incentives.
  • Watch for managers pressuring employees to meet unrealistic goals.
  • Carefully consider rules and incentives to see if employees will feel pressured to engage in unethical conduct just to meet the goals.
  • Analyze the goals and incentives to make sure employees do not feel pressure to break safety rules or laws just to preserve their jobs. Employees should not be penalized or fired for things that are outside of their ability to control.
  • Listen carefully to employee expressions of concern about the goals or incentive programs and how realistic those programs and goals are. Do not just assume that the employees expressing concerns are disgruntled, low performers. 
  • Do not retaliate against or fire the employees who report problems with the goals and unethical behavior by managers and co-workers.

Putting these steps in place is just good business.  Otherwise, a company risks being the next Wells Fargo.