Title VII and Sexual Orientation Discrimination: What would Justice Scalia have said?

Riverside Geyser in Yellowstone NP

On January 20, 2017, as Donald Trump was being sworn in as President, a three-judge panel of the U.S. Court of Appeals for the Second Circuit heard oral arguments regarding whether Title VII of the Civil Rights Act of 1964 prohibits sexual orientation discrimination. The case is Christiansen v. Omnicom Group, No. 16-748-cv, in which Matthew Christiansen, a marketing firm employee, has alleged that he was harassed for being gay. As discussed below, one of the arguments raised for covering sexual orientation under Title VII blatantly misappropriates the words of the late Justice Antonin Scalia and has him rolling over in his grave.

DeWitt v. Southwestern Bell Tel. Co.: When can an employer fire an employee with a disability for poor performance?

In DeWitt v. Southwestern Bell Telephone Co., No. 14-3192 (10th Cir. Jan. 18, 2017), the court held that the defendant did not deny Janna DeWitt, a customer service representative at a call center, a reasonable accommodation in violation of the Americans with Disabilities Act when it fired her for hanging up on two customers. The court reasoned that DeWitt, an insulin-dependent diabetic, did not request an accommodation to prevent her from dropping customer calls:

[I]nstead, she requested retroactive leniency for her misconduct. Specifically, Ms. DeWitt requested that SWBTC overlook that she hung up on at least two customers while on a Last Chance Agreement. Such retroactive leniency is not a "reasonable accommodation" as defined by the [ADA].

Karlo v. Pittsburgh Glass Works, LLC: The Infinitude of Disparate Impact Claims

In Karlo v. Pittsburgh Glass Works, LLC, No. 15-3435 (3d Cir. Jan. 10, 2017), the court held that the Age Discrimination in Employment Act (ADEA) covers claims of disparate impact (unintentional discrimination) involving a subset of the protected group of workers under the ADEA. This means that although the ADEA prohibits age discrimination against all workers 40 and older, an ADEA disparate impact claim can be based on the effects of an employment practice on, for example, workers 50 and older and need not be based on the effects on all workers 40 and older. This is significant because the same employment practice can have an adverse effect on older workers in the protected group but not on younger workers in the protected group.

Breasts, part 2: Is it unlawful sex discrimination to require female employees to wear bras?

Following on the heels of my recent post about breastaurants, the recent decision in Baez v. Anne Fontaine USA, Inc., No. 14-cv-6621 (KBF) (S.D.N.Y. Jan. 5, 2017), gives me an excuse to delve more deeply into the intersection of EEO law and bosoms. In Baez, Judge Katherine Forrest concluded that Rochelly Baez, a regional manager for a clothing retailer, had presented sufficient evidence for a jurgy to find that she was unlawfully fired in retaliation for complaining about rumors that she had worn a revealing shirt and no bra in a meeting with the CEO, thereby showing him her breasts.

Celebrating Breastaurants and the Trump Inauguration

With Donald Trump's inauguration as America's 45th President only two weeks away, I thought it an opportune time to highlight the 20th anniversary of the landmark 1997 settlement of sex discrimination claims brought by men denied employment by Hooters. As a result of the settlement, Hooters agreed that it would fill some positions without regard to sex, but the iconic Hooters Girl has continued to be the public face/bosom of the company.

Hale v. Johnson: National Security and EEO Law

Under EEO law, there are two primary exceptions for practices implicating national security, and in Hale v. Johnson, No. 16-5475 (6th Cir. Dec. 29, 2016), the Tennessee Valley Authority tried to stretch the bounds of both of these exceptions. In Hale, the United States Court of Appeals for the Sixth Circuit rejected the TVA's contentions that the court lacked jurisdiction over the disability discrimination claim of James Hale because the decision to terminate Hale for failing a physical fitness test was based on considerations of national security.