Snug in Florida’s deep south, Davie, Florida is a town known for its Western roots, featuring a western-themed amusement park, and more citizens with horses than you can shake a stick at. Davie’s population of about 92,000 is supported by five fire stations, nos. 38, 65, 68, 91 and 104. The hundred year old town, once an out of the way western paradise, is now hitting the news as the subject of allegations of Title VII discrimination at its fire department.
A Host of Discrimination Complaints
The discrimination claims appear not to be an isolated incident: 18 Title VII claims in total are allegedly under investigation by the Equal Employment Opportunity Commission, or EEOC (the EEOC does not publicly discuss or confirm whether complaints are being investigated). Ten of the 18 charging parties are being represented by two attorneys. The most damning complaint comes from a female firefighter who claims she was unfairly subjected to full duty during the first trimester of her pregnancy. This charging party is alleging that eight (8) days after fighting a fire with her colleagues, she miscarried.
An Alleged Culture of Sexism and Bigotry
The charges center on complaints of sexism and bigotry. The most publicized involve the above case of miscarriage, as well as the story of Linda Stokoe. Stokoe was a fire inspector for the city, but was allegedly fired due to sex discrimination. The former inspector claims she was ordered to keep records of her bathroom visits, and that women were generally believed by her peers to be unfit for firefighting. Another charge alleges discrimination against a Jewish American, who claims derogatory terms and slurs were used against him.
How Does Title VII Apply?
Title VII, as amended, directly prohibits discrimination in the workplace on account of gender, race and religion, among other protected categories. The complaints described against the Davie, Florida Fire Department include racial and gender slurs, preferential treatment, and statements (direct, not implied statements) that women and some minorities are unfit to serve in the Fire Department. Since the Civil Rights Act of 1964 was instituted, nearly every generation of EEOC leadership interpreting the Act has prohibited such treatment.
Is This Your Story?
If you feel that your race, gender, religion, national origin, disability or age have played an unnecessary role at your job, or even in your attempts to find work, then you may have a claim of discrimination. For further information and a free consultation, call the law offices of Valli, Kane & Vagnini today.
EEOC Puts New Limits on Criminal Background Checks
The Equal Employment Opportunity Commission (EEOC) has recently clarified its regulations regarding how employers use criminal background checks when making the decision whether or not to hire an individual. The EEOC’s decision to clarify those regulations apparently came about as a result of the organization’s long standing concern that criminal history and race are too often associated when employers make hiring decisions. While the EEOC issued a clarification, not a game-changing reinterpretation, it is important for employers and employees to understand these regulations.
Criminal History Should Not Affect Employment
In broad strokes, the EEOC suggests that criminal history should not be a factor in a hiring decision. However, the organization recognized that, in some cases, criminal history is a required factor of consideration in some segments of the American workplace. As such, the Equal Employment Opportunity Commission has set up a series of best practices designed to prevent or alleviate how an individual’s criminal history may affect a hiring decision.
Background Checks are Not Forbidden
According to Title VII, criminal background checks are not forbidden. In fact, it would be legally impossible to eliminate criminal history as a consideration for hiring in every job in the US economy. For instance, sex offenders must be legally screened from working as teachers in public schools, Banks might require that fraud and larceny not be a part of an employee’s recent past.
Criminal History as a Factor in the Hiring Decision
However, the EEOC’s intent in this clarification appears to be a desire to minimize the importance of criminal history in hiring decisions. But what was the driving factor behind this clarification policy, and how does it relate to Title VII, which says nothing about discriminating against employees on the basis of criminal record? The driving force, according to the Equal Employment Opportunity Commission, was race.
Criminal History and Race Discrimination
Title VII regulations’ prohibition against race discrimination may be, according to the EEOC, inexorably linked. The organization posits that criminal history may be used as a protective shield by companies so that they might discriminate racially, especially against African American and Hispanic individuals. If a company amplifies the negative impact of an individual’s criminal background as a smokescreen for racial discrimination, then Title VII regulations have been violated.
If you feel you were turned down for a job due to racial discrimination and inappropriate factoring of your criminal background, you need to speak to a lawyer. Call the law offices of Valli, Kane & Vagnini to find out how we can help.
Transgender Cases Now Included in Gender Discrimination Interpretation of Title VII
The Civil Rights Act of 1964 changed the landscape of human rights across the country. Title VII is the most hotly debated portion of that law in that it forbids discrimination based on five key metrics: race, color, religion, sex and national origin. In spite of the law’s nearly fifty years as a part of United States Code, it still requires active, repeated interpretation to ensure proper enforcement. The Equal Employment Opportunity Commission is responsible for making sure that act is enforced. Since Title VII’s inception, the EEOC has never ruled that transgender individuals are covered under the sexual discrimination cause of that Act—until April 2012.
Past EEOC Rulings Regarding Transgender Sexual Discrimination
Has discrimination on the basis of gender alignment always been a Title VII issue? Historically, it has not. In the past, when complaints were filed with the EEOC regarding discrimination against gay, lesbian, bisexual or transgender individuals, the complaint was handled as discrimination on the basis of sexual orientation. On three past occasions ranging from 1984 to 1986, the EEOC ruled that transgender discrimination did not constitute a Title VII claim. In April 2012, as the EEOC reviewed a complaint by Mia Macy against the Bureau of Alcohol, Tobacco, Firearms and Explosives, the EEOC ruled differently. As a result, transgender complaints are now considered under the purview of Title VII.
What is Gender Discrimination?
Gender discrimination under Title VII occurs when employment opportunities are denied or the terms and conditions of one’s employment are altered due to an individual’s gender. The interpretation of the law, previous to 2012, has excluded transgender individuals. The new interpretation of the law is important to the transgender community and for Title VII law. As an interpretation of an existing law, it may fundamentally modify the legal system’s understanding of gender.
When is Gender Discrimination Appropriate Under the Law?
Are there situations where gender discrimination is deemed legally appropriate? Yes, there are. Gender preferences are permissible when an employer takes an affirmative action hiring policy to rectify past discrimination. In addition, there are narrow cases where gender discrimination is inherent to the working conditions, i.e. male or female modeling, etc.
A Time of Change in Transgender Rights
With this important EEOC ruling regarding transgender discrimination under Title VII, the American legal understanding of transgender rights is in flux. If you would like to find out more about the rights and actions surrounding an act of transgender discrimination, contact Valli, Kane & Vagnini for a free consultation.
What To Do If Being Harassed At Work
Those who suffer sexual harassment in the workplace do not have to tolerate the behavior; there are options. However, people who suffer through sexual harassment in the workplace are often hesitant to report the behavior. They are intimidated by the fear that reporting this degrading and demeaning behavior could have negative consequences. These feared consequences could include termination, damage to prospects of future employment, demotions and negative transfers. These potential negative consequences can be mitigated by empowering the sexually harassed individual to stop the behavior and demand redress for the professional and emotional distress as a result of the illegal behavior.
Sexual Harassment and Employment Law
Sexual harassment falls under the federal employment discrimination laws. In many areas, it not only violates United States federal law, but state and local laws. Employers are obligated to take action to prevent sexual harassment at the workplace. If sexual harassment is reported to the employer, immediate action must be taken to deal with the situation. In addition, the employee reporting sexual harassment is legally protected from retaliation by the employer.
What is Sexual Harassment?
Sexual harassment comes in many forms. Some of these forms include:
- Being directly asked for sex or sexual contact.
- Unwanted and unwelcome sexual advances. This can be requests for dates or requests for meeting outside of the workplace.
- Sexually charged speech.
- Physical contact of a sexual nature.
- Being required to function in a hostile work environment.
- Behavior deemed inappropriate to the workplace. This includes sexist and derogatory language and pornographic images in the workplace.
- Discriminatory and unfair treatment, including denial of opportunities and promotion, based on gender.
Should I Pursue a Sexual Harassment Lawsuit?
Individuals victimized by sexual harassment are often reluctant to pursue a lawsuit. They are often caught in the dilemma of fearing the potential of negative consequences of reporting sexual harassment, while knowing that action must be taken. Attorneys experienced in sexual harassment cases take great care in the way they treat clients that have been victims of harassment. Great attention will be given to the privacy of the client. And, if possible, the case will be pursued on a completely private basis through negotiations with the employer or through filings with agencies such as the EEOC which are charged with the responsibility of investigating claims of such harassment.
Whether it is sexual harassment or other forms of discrimination in the workplace, it is important to understand the rights and legal options of the worker. If an employer has violated your rights, set up a no cost consultation with a law firm that is experienced in workplace discrimination.
Nooses in the Workplace: A Disturbing Trend
A noose is placed on a desk or a chair, or on a door or in a locker. The symbolism is clear. Nooses in the workplace are meant to intimidate because of race. The noose of the hangman is meant to be a frightening visual representation of the harassment that included thousands of black people who died at the hands of lynch mobs following the civil war and on into the twentieth century. This history has led to symbolic use of a noose. It has long been a tool of various hate groups. The turning up of nooses in the workplace has been having an affect on black employees, and that affect has been spilling over to affect other minorities.
Equal Employment Opportunity Commission (EEOC) officials and law enforcement officials report on this trend. While companies routinely try to settle nooses in the workplace cases out of court, the EEOC are always pursuing dozens of such cases. The EEOC point out that, when in seen light of their overall caseload, these cases are disproportionally high. The EEOC maintains that nooses in the workplace is a growing trend.
Every case of nooses in the workplace has its own distinctive characteristics, but there seem to be elements common to most of the cases brought forward. The noose is almost never the only method of intimidation. Racist slurs, racial epithets, racist jokes, racist graffiti and other ongoing intimidation and harassment usually accompany the noose.
No one knows for sure why these racist incidents have risen lately. Some discrimination attorneys have speculated that there may be a growing intolerance by younger workers not familiar with the civil rights movement and struggles of the 1950’s and 1960’s. The incident may grow out of resentment of some whites over the implementation of affirmative action resulting in diverse workplaces where blacks and minorities were previously excluded.
Another reason cited for the rise in such incidents reported to EEOC is a growing number of employers fighting it in court. Some employers are referring to the incidents as banter and horseplay between employees without harmful intentions.
There have been some accusations of minority workers filing false claims for purpose of collecting money. Employment and discrimination attorneys generally agree that a false claim of racially related harassment, violence and misconduct in the workplace is extremely rare. History has borne out that out; there have been only a handful of false claims involving nooses in the workplace. Employment and discrimination attorneys also point out that, when subjected to scrutiny, the false claims are easily brought to light.
The Fair Employment Opportunity Act of 2011 – Eliminating a Catch-22
NYC employment attorneys have pointed out that the Equal employment Opportunity Commission (EEOC) held a public hearing. A disturbing trend triggered this hearing. Several companies had been discriminating against job applicants who were unemployed. These job applicants had been excluded from any hiring consideration. Some even ran ads saying that a candidate would only be considered if employed. Ads would have statement like “Unemployed candidates will not be considered at all” or “No candidate will be considered by client if not currently employed, whatever the reason.” The same NYC employment attorneys also point that however disturbing and discriminatory this may seem, it is legal. At least for now.
The Fair Employment Opportunity Act of 2011 is designed to prohibit employers and employment agencies from using unemployment as a sole factor to screen out or exclude job candidate.
In this time of severe recession, many workers are merely victims of the economy. However, as NYC employment attorneys have noted, many employers hang on to the outmoded idea that unemployed people are somehow damaged, are poor workers and weak links.
Employers and staffing firms are not correcting this issue on their own. In fact, the NELP says that these firms are continuing to deny job openings to unemployed candidates.
This is a demoralizing double whammy to those who have lost a job and learn they will not be considered for new openings because they are not working. This old Catch 22 states that you have to have a job to get a job. The fact is there are currently highly qualified, skilled, experienced workers who cannot seem to get their foot in the door because they lost a job through no fault of their own. The NYC employment attorneys state that this makes no sense from a business standpoint.
The Fair employment Opportunity Act of 2011 is designed to stop employers and employment agencies from discriminating against job candidates who are not working. The job search environment is already tough. The Bureau of Labor Statistics states that there is one job opening for every five unemployed workers and the job crises has a long way to go.
The NYC employment attorneys are confident that this new legislation will eliminate the discriminatory practices that are making a long term unemployment problem even worse. Apparently, this legislation has strong support and, if enacted, unemployed job candidates should get a fairer shot at job openings.
Employment and the Expansion of Disability Claims
The rules issued by the Equal Employment Opportunity Commission (EEOC) expand the protection granted employees under the Americans with Disabilities Act (ADA). These rules were authorized by the ADA Amendments (ADAA) and were passed by Congress in 2008. The results are a significant expansion of the number of individuals claiming ADA protection.
Americans with disabilities are a large and economically disadvantaged group. The goals of ADA mandates are similar to civil rights. One goal is to make sure people with disabilities have access to employment. In the past, employers traditionally shut out disabled people from employment. A second goal is to increase job opportunities for disabled. As a group, people with disabilities earn less than people without disabilities. Employers that will be affected. Employers that employ 15 or more employees who work for at least twenty calendar weeks within a year. The EEOC points out that tracking this can become rather complicated and recommends staying in close communication to ensure compliance. Broad is the protection. The ADAA has expanded the definition of “disability”. As a result, employees will have a much easier time when seeking the law’s protection.
Do I fall under this broad coverage? According to the EEOC, an individual with a disability is a person who:
- Has a physical or mental impairment that substantially limits one or more major life activities;
- Has a record of such an impairment; or
- Is regarded as having such an impairment.
The key is how limited you are in performing your major life activities. For example, doctors may have diagnosed you as being clinically depressed. However, you may not be qualified for coverage because you are not substantially limited in performing major life activities.
What are my rights?If you are covered under the ADA, your employer must make “reasonable accommodations” as long it does not cause the employer “undue hardship”. Undue hardship for the employer means it would cause significant difficulty or expense. Reasonable accommodation can take many forms, but some common examples are included here:
- Part time and job sharing
- Flexible schedules
- Time off for doctor’s appointments, support groups and therapy
- Flexible break time to meet individual needs
- Additional leave time
Filing a Charge. If you think an employer has discriminated against you because of your disability, you may file at the nearest EEOC office or find an experienced employment attorney. If you have no office in your area, it can usually be over the phone.
Retaliation – Employees Should Not Fear Reporting Discrimination –
Employees who have been discriminated or harassed against in the workplace should not be hesitant to report these claims. Retaliation laws are in place to protect the employee from being harassed or targeted after they exercise their right to report discrimination. When an employee reports discriminatory acts to the Equal Employment Opportunity Commission, their respective state equivalent, the Department of Labor, or even internally to their employer, retaliation laws are in place to stop the employer from taking adverse action against the wronged employee.
Retaliation laws protect against all forms of retaliation. Retaliatory actions include, but are not limited to:
– Disparate Hiring Practices
– Unwarranted Firing
– Pay Reductions
– Change in Job Assignments
– Promotion Discrepancies
– Layoffs
– Unwarranted Training Procedures
– Denial of Fringe Benefits
– Alteration of any other Term or Condition of Employment.
The Equal Employment Opportunity Commission is a federal agency in place to protect the rights of employees. It is “an unlawful employment practice for an employer to discriminate against any of his employees…because the employee has opposed any practice made unlawful employment practice by Title VII.” 42 U.S.C. § 2000e-3(a). EEOC Retaliation laws bar the employer from exercising any retaliatory acts, even retroactively, against an employee after they file an EEOC Charge of Discrimination. Employees should not fear reporting discrimination because the EEOC is an agency to rectify these wrongs.
Most states have a functional state equivalent to the EEOC and this is another avenue for discriminated employees to use to remedy the harassment they have endured. In New York specifically, New York Labor Law Article 20-C § 740 is in place to forbid an employer from taking retaliatory actions against an employee who reports discrimination in the work place. New York employees have protection at both the Federal and State level when exercising their right to be free of discriminatory actions taken by their employer. For employees working in New York City, they even have a third layer of protection under the New York City Human Rights Law.
Employees do not have to report acts of discrimination to one of these agencies in order to be afforded protection under these anti-retaliation laws. An employee is safeguarded against retaliation in any form when they complain about discrimination or harassment directly to their employer by complaining to Human Resources, management or some equivalent. It is vital, however, when complaining directly to your employer, that the aggrieved employee document their complaint of discrimination or harassment in some manner, whether through a formal document, email, or in the presence of a trusted witness.
For an employee to prove they have been retaliated against, they only need to show that the retaliation has produced “an injury or harm.” Burlington Northern & Sante Fe Ry. V. White, 548 U.S. 53, 67 (2006). The injury or harm requirement must however stem from or convey a feeling or perception of discrimination. Employees should not be weary of reporting acts of retaliation, but should exercise their right to be free of these acts. Retaliation can also occur if someone has been negatively affected by your report of discrimination. The EEOC’s Retaliation laws protect the rights of third–parties, even though they have not made claims of discrimination themselves. Thompson v. North American Stainless, LP (2011). For a more detailed discussion on how third-parties are protected by the law, check back to see further blog discussion on our website.