Gender/Sex Discrimination

October 3, 2018

I’m Being Discriminated Against at Work Because of My Sexual Orientation, What Are My Rights?

If you encounter sexual orientation discrimination in the workplace, you may have a legal claim against your employer. Sexual orientation discrimination in the workplace can occur in subtle and overt forms and can occur if you are lesbian, gay, bisexual, pansexual, asexual, or straight. Discrimination is any adverse action you experience at your job because of your real or perceived sexual orientation. Examples include:

being passed over for a promotion or other opportunities because of your sexual orientation;
receiving unfavorable evaluations because of your sexual orientation;
being denied benefits because of your sexual orientation;
being harassed, called names, or disciplined because of your sexual orientation; and
receiving unwanted sexual advances or contact because of your sexual orientation.

Sexual orientation discrimination also includes unfavorable treatment you experience based on your association with people of a certain sexual orientation. If you are experiencing any of the mistreatment described above, or any other unfair treatment based on your sexual orientation, a Boston employment law attorney can help you protect your rights.

Company Policy

Many companies have policies that prohibit unfavorable treatment as a result of sexual orientation. One of the first steps, if you are being harassed, is to see if your company has such a policy. Step two is to report the treatment to your manager or Human Resources Department. Keep records (such as emails, texts voice mails, etc.) of any interaction you believe was discriminatory. If you don’t have any written records, keep a log of all the interactions you believe are discriminatory. Note the date and time of the interaction, and write down the names of others who might have witnessed it. This information can prove invaluable if you decide to file a lawsuit.

Federal Law

Although federal law may provide some protection, laws in this area are a bit foggy. The United States Supreme Court in Obergefell v. Hodges recently held that same sex couples have the right to marry and receive all of the benefits of marriage. Outside of marriage, though, federal law currently does not provide explicit protection from discrimination based on sexual orientation the way it does for discrimination based on age, sex, religion, race, natural origin and disability. That being said, Title IX, a federal law which prohibits sex discrimination in the workplace, may also apply to discrimination based on sexual orientation. Complaints under Title IX may be enforced by filing a complaint with the Equal Employment Opportunity Commission (EEOC). Notably, if you work for the federal government, you should also be protected from sexual orientation (and gender identity) discrimination by an Executive Order that President Obama amended in 2014. The law in this area is changing frequently, so it is best to consult a MA employment law attorney about the protections federal laws may provide.

State Law

Even though federal law does not specifically prohibit discrimination on the basis of sexual orientation, more than 20 states do, including Massachusetts. California, Colorado, Connecticut, Delaware, DC, Hawaii, Illinois, Iowa, Maine, Maryland, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, Utah, Vermont, Washington, and Wisconsin have similar laws. If you work in Massachusetts, you may be able to sue your employer in state court for violating anti-discrimination laws. Doing so may result in compensation for harm you suffered. Continue reading

August 1, 2018

Pregnancy and New Mother Discrimination in the Workplace

by Altman & Altman

Pregnancy discrimination occurs when an employee or job applicant is treated unfavorably due to pregnancy, or a pregnancy-related medical condition. The Pregnancy Discrimination Act (PDA) prohibits this type of discrimination in the course of any aspect of employment.

When a woman is unable to perform certain job duties due to a pregnancy-related health condition, she must be treated in the same manner as any another temporarily disabled employee would be treated. Further, some impairments that are common during pregnancy, such as preeclampsia and gestational diabetes, are covered disabilities under the Americans with Disabilities Act (ADA). As such, employers may have to provide reasonable accommodations for an employee suffering from these temporary medical conditions. Reasonable accommodations could include temporary leave, or modifications to the office, duties, or schedule.

Hostile Work Environment

If a woman feels that she has been harassed, or in any way discriminated against, due to her pregnancy, she may wish to file a discrimination claim. Unlawful discrimination occurs when harassment is frequent and severe enough that it creates a hostile work environment. Discrimination can also occur in the absence of harassment, however. For example, if a pregnant woman is demoted or fired because of her pregnancy or pregnancy-related medical condition, these may be grounds for a discrimination claim. A MA employment law attorney can help you recover damages if you’ve been discriminated against in the workplace.

New Mothers

If temporarily disabled employees are permitted to take disability leave, the same policy must apply to pregnant women. The Family and Medical Leave Act (FMLA) provides pregnant employees with additional rights, and many of these rights extend to new mothers. In the past, along with the PDA and FMLA, Title VII of the Civil Rights Act has been used by pregnant employees, and those who have recently become mothers, to fight workplace discrimination. In fact, discrimination lawsuits filed by new mothers and pregnant women have seen a dramatic increase in the last decade, and these lawsuits have a higher success rate than many other types of discrimination lawsuits.

The Right to Express Milk

New mothers often have a need to express milk during working hours. Under the Fair Labor Standards Act, which is enforced by the U.S. Department of Labor, nursing mothers have the right to take breaks for the purpose of expressing milk. Employers must provide “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.” In addition, employers must provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.”

These breaks must be provided as frequently as the nursing mother requires, and for a reasonable amount of time. Although the FLSA does not specifically require employers to compensate nursing mothers during breaks for the purpose of expressing milk, if other types of breaks are already compensated for, the nursing mother must be compensated in the same way. A Boston employment law attorney can help you determine how to proceed if you’ve been discriminated against at work. Continue reading

March 23, 2018

Second Circuit Rules that Discrimination Based on Sexual Orientation is Prohibited Under Title VII

by Altman & Altman

Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination based on race or color, sex, national origin and religion. It does not specifically prohibit discrimination based on sexual orientation, however. In fact, in Zarda v. Altitude Express, Inc., the Second Circuit dismissed the plaintiff’s claims of sexual orientation-based discrimination since this type of discrimination is not covered by Title VII. On Monday, however, the Second Circuit reversed that decision, finding that discrimination based on sexual orientation is included under Title VII.

Due to the wording of Title VII, which did not explicitly list sexual orientation as a protected category with regard to workplace discrimination, employees have long been vulnerable to sexuality-based discrimination. To be clear, no federal law actually prohibited discriminatory employment practices against LGBT people. State laws were, and are, a different story. Even though the Equal Employment Opportunity Commission (EEOC) announced that it viewed sexual orientation-based discrimination as a Title VII violation, its interpretations have no authority with regard to federal law.

For years, sexuality or sexual orientation-based discrimination cases have been regularly dismissed. But as times change, workers have increasingly begun filing lawsuits for this type of discrimination. Last year, the Seventh Circuit Court of Appeals made a landmark decision in Hively v. Ivy Tech Community College, finding that sexual orientation discrimination is covered by the sex discrimination provision in Title VII. In the Hively case, the plaintiff “described a situation in which, holding all other things constant and changing only her sex,” the discrimination would not have occurred.

Trump Weighs In

A 2010 discrimination case involving Donald Zarda, a sky-diving instructor from Long Island, was found in favor of Altitude Express, his employer. According to the lawsuit, Mr. Zarda told his female sky-dive partner that he was “100 percent gay.” Her boyfriend complained to Altitude Express, and Zarda was terminated as a result. Zarda then filed his own lawsuit, but the Second Circuit affirmed the original decision. After Zarda’s death in a 2014 sky-diving accident, his appeal was continued by his estate. The Trump Administration even got involved, arguing that the protections of Title VII do not apply to sexual orientation. A MA employment law attorney can help you protect your rights if you’ve been discriminated against at work.

But the Second Circuit overturned its previous ruling in February, finding that sexual orientation discrimination is encompassed by the sex discrimination provision. Although the court admitted that this was likely not the provision’s original intent, deciding to include sexual orientation discrimination follows in line with the decision to expand other aspects of Title VII, such as including sexual harassment.

The Second Circuit’s decision holds that: “Title VII’s prohibition on sex discrimination applies to any practice in which sex is a motivating factor.” As such, employment discrimination based on sexual orientation qualifies as sex discrimination “because sexual orientation is defined by one’s sex in relation to the sex of those to whom one is attracted, making it impossible for an employer to discriminate on the basis of sexual orientation without taking sex into account.”

This decision is welcome news for millions of LGBT workers, but also for anyone who wishes to see an increase in workplace justice and equality. If you are being discriminated against because of your sexual orientation, you don’t need to suffer in silence anymore. A Boston employment law attorney can help you determine how to proceed if you’ve been the victim of workplace discrimination. Continue reading

November 13, 2017

New Web Portal Allows Individuals to File Employment Discrimination Charges Online

by Altman & Altman

With the Equal Employment Commission’s (EEOC) new web portal, filing a workplace discrimination charge just got easier than ever. According to the EEOC, the portal was created in response to an increasing demand for the agency’s services. In 2017, the EEOC responded to more than 140,000 inquiries and 550,000 calls. The EEOC hopes that the portal will provide a more efficient way for people to contact the agency, as well as to sign and file an employment discrimination charge.

The portal, which has been piloted in multiple EEOC offices across the country, allows the public to file a charge online. From there, the individual can provide additional information, upload supporting documents, check on status, and even agree to mediation.

“This secure online system makes the EEOC and an individual’s charge information available wherever and whenever it is most convenient for that individual,” said Victoria A. Lipnic, EEOC acting chair. “It’s a giant leap forward for the EEOC in providing online services.”

What is Employment Discrimination?

Before the Civil Rights Act of 1964 was passed, employment discrimination was legal, and occurred with shocking frequency. Although workplace discrimination and harassment are now illegal, they still rear their ugly heads from time to time. In fact, employment discrimination still affects hundreds-of-thousands of workers every year. Fortunately, today’s legal protections help bring justice to victims of workplace discrimination. A Boston employment discrimination attorney can help you determine how to proceed if you’ve been discriminated against at work.

Common Types of Employment Discrimination

Employment discrimination takes many forms. If you are discriminated against based on your membership in a protected class, you may have a successful discrimination lawsuit on your hands. The most common types of unlawful employment discrimination are based on:

Age: Individuals age 40 and above are protected against age-based discrimination by the Age Discrimination in Employment Act (ADEA).
Disability: Employees with qualifying disabilities are protected by Title I of the Americans with Disabilities Act (ADA).
National origin: It is unlawful under Title VII of the Civil Rights Act to discriminate against an employee or prospective employee based on their country of origin, accent, or ethnic background.
Pregnancy: Pregnancy discrimination is a form of sex discrimination, and is prohibited under the Pregnancy Discrimination Act.
Race: Under Title VII of the Civil Rights Act, employees are protected from race-based discrimination, including harassment or discrimination related to the employee’s skin color, perceived race, and interracial relationships.
Religion: According to Title VII of the Civil Rights Act, employers may not treat employees differently based on their religion, religious beliefs, or participation in religious activities.
Sex: In addition to sexual harassment, sex-based discrimination includes any type of different treatment related to the employee’s sex, such as paying a woman less than her male counterpart. Sex-based discrimination is prohibited under Title VII of the Civil Rights Act.

Fortunately, it is also unlawful for an employer to retaliate against an employee for filing a discrimination claim, testifying, or participating in an investigation into employment discrimination. A MA workplace discrimination lawyer can help you recover damages if you’ve been the victim of discrimination at work. Continue reading

November 6, 2017

Former Netflix Employee Wins Sexual Harassment Lawsuit Against the Company

by Altman & Altman

Barry Coleman was hired as HR director at Netflix in early 2016. The streaming giant offered Coleman the job after seeing his presentation on doing business in China, in 2015. Shortly after receiving the offer, Coleman learned that his son had been murdered. Distraught over the tragic loss of his son, Coleman suffered from severe depression. But Netflix maintained their offer of a $500,000 annual salary to be the director of employee services.

Coleman alleges that his recruiter, Barbie Graver, former VP of talent at Netflix, said that Netflix would accommodate his situation: “If you work at half your normal speed for the first six months, I’m okay with that.” However, Coleman says that this special treatment was quickly replaced with harassment. He claims to have been ostracized for not working the “Netflix Way,” and for being disengaged. But that wasn’t the worst of it.

Coleman claims that a male superior began making inappropriate advances in April 2016. He initially asked Coleman to join him for a rendezvous with another male business exec. Coleman politely declined the offer, but the invitations didn’t stop. As stated in the complaint filed in Los Angeles Superior Court: “Being heterosexual, [Coleman] was uncomfortable with [the superior’s] advances and attempted to keep some distance so as not to offend his superior. However, the invitations to go out continued.”

Not “Netflix Enough”

Then came the gossiping. According to Coleman, the superior began talking about him with other employees, saying that Coleman wasn’t “Netflix enough,” and calling him arrogant. When he brought the issue to Graver’s attention, not only did she not initiate an investigation, she claimed to be “cool” with this type of behavior. A MA employment law attorney can help you determine how to proceed if you’ve been the victim of workplace sexual harassment.

The complaint went on to say that: “During [Coleman’s] employment, Ms. Graver discussed her handling of a prior sexual harassment claim at Netflix. She told [Coleman] that the accused employee had a history of making inappropriate comments and had been warned on numerous occasions. Ms. Graver also told [Coleman] that many Netflix executives would make inappropriate sexual comments and that [she] was ‘cool’ with it, but understood that others may not be. Ms. Graver, in communicating these and other examples of Netflix unwritten policy of tolerating harassment and discrimination, made it clear to [Coleman] that he should not be ‘over-sensitive’ even when he was being harassed by his superior.”

Apparently the situation only continued to get worse until Graver took a new job. According to Coleman, Graver’s replacement did not wish to accommodate his continued psychological needs from the death of his son. As such, his employment was terminated in May 2016. Netflix holds that Coleman’s termination was based on poor performance. The company claims that he was rarely in the office, and that he was often condescending to his subordinates. Continue reading

October 13, 2017

Gender Bias in the Workplace

by Altman & Altman

Despite the significant advancements and legal protections of recent years, gender discrimination is still a major problem in the workplace. Laws such as Title VII and the Equal Pay Act of 1963 were enacted to prevent gender bias, but issues including unequal pay and sexual harassment continue to harm women in industries across the country.

The issue is especially prevalent, and easy to overlook, in male-dominated industries, such as IT. Gender bias is a form of discrimination, and is therefore a prohibited practice in the workplace. Some forms of bias are obvious, while others may be harder to recognize. So how do you determine whether you’ve been a victim of gender bias in the workplace? In addition to protecting yourself from further discrimination, calling attention to gender bias helps other employees who may also be suffering.

Common Types of Gender Bias