Category Archives: Title VII of the Civil RIghts Act of 1964

Establishing a Prima Facie Case of Discrimination Under Title VII

Establishing a Prima Facie Case of Discrimination Under Title VII

In Latin, prima facie means at first glance. When a litigant is in court, he or she can make a prima facie case by submitting evidence that would be enough to support his or her allegations if they were believed by the jury or judge. When a worker sues his or her employer for discrimination under Title VII of the Civil Rights Act of 1964, the worker must have enough evidence for a prima facie case of discrimination. If the worker meets that initial burden, the burden of proof shifts to the employer, who must present evidence that there was a nondiscriminatory reason for the disputed employment decision. The worker will then be able to challenge the evidence offered by the employer by showing that the employer’s reasons were pretextual.

Title VII

Under Title VII of the Civil Rights Act of 1964, employers are prohibited from discriminating against members of the Title VII protected classes. This includes discrimination on the basis of sex, religion, color, race or national origin. Employers are likewise prohibited from retaliating against workers who have participated in an investigation or exercised their rights to file discrimination complaints.

What is a prima facie case of discrimination?

Workers establish a prima facie case by meeting the elements of a test that has been established by the courts. If the workers cannot meet these elements, the employers can request dismissals of the lawsuits. The employee must show all of the following:

  • The worker is a member of a protected class
  • The worker has the qualifications for the job.
  • The worker was denied the job.
  • The employer either filled the job with a worker who is not a member of a protected class or kept the position open without filling it.

What the employer must show

After a worker has established a prima facie case, the burden shifts to the employer. The employer must submit evidence showing that the decision was made because of a nondiscriminatory and legitimate reason. For instance, in a case involving an employee who claims that she was fired because she is a woman, an employer might present evidence that the woman was fired because of her poor job performance.

Rebutting the employer’s reason with pretext

After the employer has presented its evidence, the worker will then be able to rebut it by showing that the reason was actually pretextual and that the employer’s real motive was discrimination. The employee might present evidence that rebuts the employer’s reason in order to demonstrate that it indicates discrimination.

The employee ultimately has the burden of proving his or her own discrimination claim. The worker must have enough evidence to convince a jury or judge that discrimination occurred. The employer only has the burden of proving that there is some evidence supporting a legitimate purpose.

Contact an experienced employment law attorney

If you feel that your employer illegally discriminated against you, getting legal help from an experienced employment law attorney might be beneficial. An attorney at Swartz Swidler can offer you an honest assessment of your claim and how you might proceed. Contact Swartz Swidler today to schedule your consultation.

Complaints of Sexual Orientation Discrimination by Federal Employees now Cognizable Under Title VII

On July 15, 2015, the United States Equal Employment Opportunity Commission (“EEOC”), in its role as an appellate tribunal reviewing the disposition by a federal agency of a claim of discrimination, issued a decision in which it held that “allegations of discrimination on the basis of [a complainant’s] sexual orientation state a claim of discrimination on the basis of sex within the meaning of Title VII [of the Civil Rights Act of 1964]. Complainant v. Anthony Foxx, Secretary, Department of Transportation, EEOC Appeal No. 0120133080, slip op. at *14-*15 (July 15, 2015).

The EEOC’s holding is binding on all federal government departments and agencies.  By and through this holding, complaints of sexual orientation discrimination by federal employees are cognizable under Title VII.  The EEOC’s holding is not binding on private employers, but may be used by lawyers advocating in the nation’s federal and state courts for the application of the holding to private employers.

Prior to the EEOC’s holding in Foxx, complaints of sexual orientation discrimination by employees of private employers and state and municipal governments already were cognizable under state law in twenty-three states, including New Jersey, Delaware, and New York.  Such claims are not cognizable under Pennsylvania state law, but are recognized by numerous counties and municipalities within that state, including but not limited to in Philadelphia, Harrisburg, and Pittsburgh.

In Foxx, the complainant, an employee of the Federal Aviation Administration (“FAA”), filed a formal Equal Employment Opportunity (“EEO”) complaint alleging sexual orientation discrimination and retaliation, both in violation of Title VII. Id., slip op. at *1-*2.  Neither the FAA nor the EEOC reached the merits of the complainant’s claim.  The FAA held, among other things, that the EEOC had no jurisdiction over the complainant’s claim of sexual orientation discrimination. Id., slip op. at *2-*3.

The EEOC reversed the FAA’s holding that it had no jurisdiction over the complainant’s claim of sexual orientation discrimination, noting that it “appl[ies] the words of the statute Congress has charged us with enforcing.” Id., slip op. at *13.  It held that

Title VII’s prohibition of sex discrimination means that employers may not rel[y] upon sex-based considerations or take gender into account when making employment decisions.  This applies equally in claims brought by lesbian, gay, and bisexual individuals under Title VII.

When an employee raises a claim of sexual orientation discrimination as sex discrimination under Title VII, the question is not whether sexual orientation is explicitly listed in Title VII as a prohibited basis for employment actions.  It is not.  Rather, the question for purposes of Title VII coverage of a sexual orientation claim is the same as any other Title VII case involving allegations of sex discrimination – whether the agency has relied on sex-based considerations or take[n]  into account when taking the challenged employment action.

In the case before us, we conclude that Complainant’s claim of sexual orientation discrimination alleges that the Agency relied on sex-based considerations and took his sex into account in its employment decision[.] . . . The Complainant, therefore, has stated a claim of sex discrimination.  Indeed, we conclude that sexual orientation is inherently a “sex-based consideration, and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.  A complainant alleging that an agency took his or her sexual orientation into account in an employment action necessarily alleges that the agency took his or her sex into account.

Discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms.  “Sexual orientation” as a concept cannot be defined or understood without reference to sex.  A man is referred to as “gay” if he is physically and/or emotionally attracted to other men.  A woman is referred to as “lesbian” if she is physically and/or emotionally attracted to other women.  Someone is referred to as “heterosexual” or “straight” if he or she is physically and/or emotionally attracted to someone of the opposite sex.  It follows, then, that sexual orientation is inseparable from and inescapably linked to sex and, therefore, that allegations of sexual orientation discrimination involve sex-based considerations.

Id., slip op. at *5-*6 (citations, internal quotations and footnotes omitted).

The EEOC further held that “Sexual orientation discrimination is sex discrimination”, Id., slip op. at *6, because (1) “it necessarily entails treating an employee less favorably because of the employee’s sex”, Ibid.; see also Id., slip op. at *6-*7, (2) “it is associational discrimination on the basis of sex.  That is, an employee alleging discrimination on the basis of sexual orientation is alleging that his or her employer took his or her sex into account by treating him or her differently for associating with a person of the same sex”, Id., slip op. at *8, see also Id., slip op. at *8-*9, and (3) “it necessarily involves discrimination based on gender stereotypes.” Id., slip op. at *9, see also Id., slip op. at *9-*11.  It concluded by acknowledging that

Congress may not have envisioned the application of Title VII to these situations.  But as a unanimous [Supreme] Court stated in Oncale v. Sundowner Offshore Services, Inc., “statutory prohibitions often go beyond the principal evil [they were passed to combat] to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” 523 U.S. 75, 79, 78-80 (1998) (holding that same-sex harassment is actionable under Title VII).  Interpreting the sex discrimination prohibition of Title VII to exclude coverage of lesbian, gay or bisexual individuals who have experienced discrimination on the basis of sex inserts a limitation into the text that Congress has not included.”

Id., slip op. at *13 (footnote omitted).

The EEOC issued its decision in Foxx less than three weeks after the Supreme Court issued its decision in Obergefell et al. vs. Hodges, Director, Ohio Department of Health, et al., in which the Court held that same sex couples have a right to marry that is secured by the Fourteenth Amendment to the United States Constitution.  Our analysis of the Obergefell decision, with a link to the Supreme Court’s decision, may be found here.

We at Swartz Swidler applaud the EEOC’s decision in Foxx.  If you believe that you have been discriminated against or subjected to a hostile work environment because of your sexual orientation, please contact one of our employment attorneys today for a detailed, free legal consultation.

The Foxx decision may be found here.

Employer must reasonably accommodate religious practices under Title VII regardless of actual knowledge of belief

On June 1st, The Supreme Court issued an opinion in the case Equal Employment Opportunity Commission v. Abrecrombie & Fitch Stores, Inc; an employment discrimination lawsuit in which Abercrombie refused to hire Samantha Elauf, a practicing Muslim, because the headscarf that she wore pursuant to her religious obligations conflicted with Abercrombie’s employee dress policy.

The case started in 2008 when Ms. Elauf applied for a job in a child’s clothing store owned by Abrecrombie & Fitch at Woodland Hills Mall in Tulsa, Okla. She wore a black head scarf but did not say why.

The company refused to hire her on the ground that her scarf violated the company’s “Look Policy,” or dress code.

The Equal Employment Opportunity Commission (EEOC) filed suit on Elauf’s behalf, alleging a violation of Title VII of the Civil Rights Act of 1964. The Title VII makes it illegal for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s religion.” 42 U.S.C. 2000e-2(a)(l). “Religion” includes “all aspects of religious observance and practice” unless “an employer demonstrates that he is unable to reasonably accommodate” a religious observance or practice “without undue hardship on the conduct of the employer’s business.” 42 U.S.C. 2000e(j).

The company’s allegation was that it was not aware that Ms. Elauf wore the headscarf because of religious reasons and that the company’s dress code is a neutral policy.
Ms. Elauf was awarded $20,000 by a jury in District Court, but the United States Court of Appeals for the 10th Circuit, in Denver, overturned the award, stating that Abercrombie didn’t reject Ms. Elauf’s application on the ground of her religious affiliations because she never informed Abercrombie before its hiring decision that she wore her head scarf, or ‘hijab,’ for religious reasons.”
The question presented to the Supreme Court was whether an employer can be liable under Title VII for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer’s actual knowledge resulted from direct, explicit notice from the applicant or employee.
Justice Scalia, writing for seven justices, said Ms. Elauf did not have to make a specific request for a religious accommodation to obtain relief under Title VII. “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.” Justice Scalia added “An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.”
The company, he said, at least suspected that the applicant, Samantha Elauf, wore the head scarf for religious reasons. The company’s decision not to hire her, Justice Scalia said, was motivated by a desire to avoid accommodating her religious practice. That was enough, he concluded, to allow her to sue under a federal employment discrimination law.
Religious freedom played a large role in the founding of the United States of America and continues to be one of the Americas’ key tenets. The First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Laws governing religious freedom and equality in the United States, however, go beyond these First Amendment prohibitions
Title VII of the Civil Rights Act of 1964 is one such attempt by Congress to reinforce religious rights by forbidding employers from discriminating against their employees or prospective employees on the basis of religion. This statue extends the First Amendment’s protections of religious minorities by prohibiting private employers from discriminating against their employees and applicants on the basis of religion.
Since 2010, the Equal Employment Opportunity Commission has filed 68 lawsuits involving claims of religious discrimination under Title VII of the Civil Rights Act of 1964. Those lawsuits have involved workers in all segments and sectors of the workforce – e.g., in healthcare, social services, hospitality, retail, energy, and food/beverage service, among others.
Violations have involved a variety of fact patterns, including

  •  Refusing to hire or firing religious workers after learning their religion;
  •  Discharging workers who take leave for religious-related events (such as observing the Sabbath);
  • Failing to accommodate religious-related garb choices;
  • Retaliating against employees who requested a reasonable accommodation or complained about religious discrimination.

If you believe that you have been discriminated due to your religion beliefs, please contact Swartz Swidler at 856-685-7420 today to speak to one of our New Jersey employment attorneys. There is no cost for the consultation, and we typically accept cases on a contingent basis, meaning there is no upfront cost to you, and we only get paid if we obtain a recovery in your favor.

Sexual Harassment and Discrimination in New Jersey

Sexual harassment is a specific type of workplace discrimination based on sex . It includes: unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature in which submission to or rejection of such conduct explicitly or implicitly affects and individual’s work or creates an intimidating, hostile, or offensive work environment.

Title VII of the Civil Rights Act of 1964 (Title VII) protects employees from sexual harassment, making illegal to discriminate against someone on the basis of sex, among others facts.

The law also makes it illegal to retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. Most states have rules that protect individuals from sexual harassment too. For instance, The New Jersey Law Against Discrimination (N.J.S.A. 10:5-12) (LAD) makes it unlawful to subject people to differential treatment based on race, creed, color, national origin, nationality, ancestry, age, sex (including pregnancy), familial status, marital status, domestic partnership or civil union status, affectional or sexual orientation, gender identity or expression, atypical hereditary cellular or blood trait, genetic information, liability for military service, and mental or physical disability, perceived disability, and AIDS and HIV status. Whereas, the Rule 202 of the Pennsylvania code prohibits discrimination and harassment because of race, color, sex, sexual orientation, national origin, age, disability or religion.

Although the law does not prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).

There are different types of sexual harassment recognized by the United States Supreme Court and the EEOC.  The two most common types of sexual harassment are:

  1. Quid pro quo– Quid pro quo sexual harassment occurs when a beneficial condition of employment is premised upon an employee’s submission to sexual advances. Frequently, that claim is also raised when an employee rejects a sexual advance, and claims a connection between that rejection and a subsequent adverse job action. That action might be a denial of a raise or promotion, a termination, or a “constructive discharge” where an employee claims that the retaliation made his or her job conditions intolerable. This type of harassment is less common.
  2. Hostile environment– When unwelcome, severe and persistent sexual conduct on the part of a perpetrator creates an uncomfortable and hostile environment (e.g., jokes, lewd postures, leering, inappropriate touching, rape, etc.). This type of harassment constitutes up to 95% of all sexual harassment cases. However, there is no clear definition of  “hostile environment workplace”. It can occur where jokes, suggestive remarks, physical interference with movement (such as blocking one’s path), pictures, cartoons, or sexually derogatory comments alter the circumstances of the workplace. Generally, repeated conduct is required to prove a hostile work environment, and a “stray comment” has been held not to alter the working conditions sufficiently to create a cause of action. However, some comments or conduct can be so severe that a single incident can create liability.

Research into sexual harassment provide that that there are a variety of circumstances involved in a case of sexual harassment:

  • Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex.
  • The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.

The Equal Employment Opportuniy Commission, received 6,862 charges of workplace sexual harassment in 2014, a number that has been fairly stagnant over the past few years. 17.5% of it, are charges filed by males.

Statistics in sexual harassment since 2010

According to the United States Department of Justice, only approximately 30% of sexual assault cases are reported to authorities.   Though a significant number of Americans are victims of sexual harassment in the workplace, many don’t report it out of fear of retaliation, worries their co-workers will make them feel ashamed by the experience and other concerns.

Suffering harassment at the workplace not only affects the person’s ability to work but creates emotional distress and physical reactions. The most common ones are:

  • Poor concentration at work
  • Stress on personal relationships
  • Fear/anxiety
  • Debilitating depression
  • Sleep/weight problems
  • Alcohol or drug use
  • Staff turnover
  • Increased absenteeism
  • Tarnished company reputation
  • Increased payouts for sick leave and medical benefits
  • Vulnerability to hostile confrontations
  • Legal and consultant costs
  • Lower staff productivity
  • Poor staff morale
  • Less teamwork

Employers have the obligation to act if a sexual harassment incident occurs. An important component of harassment prevention is the creation and dissemination of a sexual harassment prohibition policy and reporting procedure. This policy is critical because under federal case law, an employer fulfills its obligation if it takes all reasonable steps to prevent harassment before it occurs, and to take effective steps to remedy harassment after it takes place. If an employer demonstrates those attempts at prevention and remediation, it might not be found liable for the act of harassment itself.

Elements of a proper sexual harassment policy are the following:

A policy statement. This is a document that prescribes acceptable methods or behaviors. It should set forth a broad definition of sexual harassment. It must ban all behavior that has the purpose or effect of unreasonably interfering with an individual’s work performance, or creating an intimidating, hostile, or offensive work environment. It should make clear that submission to any type of that conduct cannot be made, explicitly or implicitly, a term or condition of employment, or used as a basis for any employment decisions. It must be a non-retaliation policy, meaning that the company must practice and protect complainants and witnesses from any retaliation from any source as a result of initiating or supporting a sexual harassment allegation. It is important that it designates several appropriate individuals authorized to receive the harassment complaint. This will prevent the situation in which the alleged harasser is the person to whom the complaint would logically be addressed.

Specific procedures for prevention. The policy should make sexual harassment a disciplinary offense, and reserve the right to terminate an employee found in that conduct. It is recommended to establish training programs in sexual harassment prevention,

Urge employees to raise and resolve their concerns at an early stage: The policy must actively encourage victims of sexual harassment to report the behavior.

Once a complaint is arisen, employers must establish a formal investigative process to find out more about the facts. This might include interviewing the complainant, the alleged harasser and any possible witnesses.  If the investigation finds that sexual harassment has occurred, some level of formal sanctions should be imposed. The range of sanctions could include a written reprimand, removal of management authority or duties, suspension, or termination; the proper remedy has to be determined on a case-by-case basis.

If you think you have been a victim of sexual harassment, the following actions may help, though you should contact one of our employment attorneys so that we can advise you further.  Depending on the specific situation, other action may be more prudent:

  • Say “no” clearly: Express verbally that behavior must stop.
  • Document the harassment: Keep a written log, keep track of dates, times, and behavior.
  • Look for co-workers that can act as witness of your situation at work.
  • Talk to the individuals authorized to receive the harassment complaint in your company. They can be your supervisor, the Human Resources manager, the director or even the president. They should know about your situation and take immediate action. It is highly recommend it to write them about the incident/incidents and keep a copy for your records.
  • Use e-mail to document your concerns where possible.
  • Call us to receive a free assessment on your case.

Equal Employment Opportunity Commission (EEOC) reaches settlement with Toys “R” Us in Employment Discrimination Lawsuit

The Equal Employment Opportunity Commission (EEOC) has reached a settlement with Toys “R” Us in an employment discrimination lawsuit. Toys “R” Us is one of the world’s largest retailers of toys and children’s products in the world, and has multiple retail locations in Pennsylvania, New Jersey, and all around the United States. The disability discrimination lawsuit filed at the Philadelphia EEOC district office against Toys “R” Us, Inc. has resulted in a $35,000 settlement and payment of significant equitable relief for employment discrimination. The settlement is one in a number of rising employment discrimination lawsuits settling in the EEOC district offices of New Jersey and Pennsylvania.

Reports of Religious Discrimination Rising in New Jersey

Religious discrimination in the workplace continues to rise in New Jersey and around the country.  As the Wall Street Journal recently reported,  reports of employment-based religious-discrimination are sky rocketing.  The Equal Employment Opportunity Commission (EEOC) has reported a surge of wide-ranging employee claims of religious discrimination as expressions of faith have grown more diverse. The EEOC defines religious-discrimination as “treating a person (applicant or employee) unfavorably because of his or her religious beliefs. The law protects not only people who belong to traditional, organized religious … but also others who have sincerely held religious, ethical or moral beliefs. Religious discrimination can also involve treating someone differently because that person is married to (or associated with) an individual of a particular religion or because of his or her connection with a religious organization or group.”

New Jersey Supreme Court rules against Discrimination as New Jersey becomes 14th State to Legalize Same Sex Marriage

TRENTON, NEW JERSEY (NJ): On October 18, 2013, the Supreme Court of New Jersey (NJ) unanimously ruled to enforce the Mercer County Superior Court Judge’s decision declaring the state’s marriage law banning same-sex marriage to constitute unlawful discrimination and accordingly, unconstitutional. Judge Mary Jacobson of Mercer County Superior Court ruled on September 27, 2013 in favor of same-sex couples who challenged the law regarding civil unions, arguing the law restricted federal benefits given to heterosexual married couples. For example, under federal and New Jersey (NJ) employment laws, legally married couples may take leave to provide care to a spouse with a serious medical condition (under the Family Medical Leave Act, “FMLA”, and the New Jersey Family Leave Act, “NJ FLA”). However, couples not legally married are not entitled to such protections.

Swartz Swidler files Sexual Harasment and Wrongful Termination Employment Lawsuit in Philadelphia, Pennsylvania

On May 6, 2013, New Jersey (NJ) and Pennsylvania (PA) employment attorneys Swartz Swidler, LLC, on behalf of a former female employee of Tosoh Bioscience, LLC filed a federal lawsuit in Philadelphia asserting that the employee was subjected to severe sexual harasment and fired for complaining of same, in violation of Title VII of the Civil Rights Act of 1964 and the Pennsylvania Human Relations Act. (“PHRA”).