Tag Archives: discrimination

EEOC Declares that Discrimination on the Basis of Sexual Orientation is Prohibited under Title VII

By Eleanor J. Lipsky, Esq.

Recently, the United States Equal Employment Opportunity Commission (“EEOC”) officially held that Title VII’s protections against sexual discrimination also encompass discrimination on the basis of sexual orientation. [1]  This ruling is an important update because it significantly expands the scope of a 2012 decision, where the EEOC held that discrimination against a transgender individual was discrimination because of sex and was therefore prohibited under Title VII.[2]    The EEOC now takes the broader position that discrimination against an individual because of that person’s sexual orientation is a violation of Title VII as well.   The Commission will accept and investigate charges alleging sexual orientation discrimination in employment.   The EEOC has listed protection of LGBT employees as one of its target priorities for 2013 through 2016.

In Baldwin v. Foxx, the EEOC stated that sexual orientation discrimination is inseparable from sexual discrimination because it is premised on “sex-based preferences, assumptions, expectations, stereotypes, or norms.”  Further, sexual orientation, as a concept, “cannot be defined or understood without reference to sex.”   The EEOC reasoned that, “[i]t 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.”

Although this decision is not binding precedent in federal courts and it is not certain whether courts will ultimately agree with the EEOC’s position, it is likely to be considered persuasive authority.   In addition, congressional action is not required to implement the EEOC’s decision because the holding is based on extending an already existing protected Title VII class.  Litigation relying on this EEOC decision will certainly take place in the future.  In light of these legal developments, employers are advised to consider their internal anti-discrimination policies with respect to gender identity and sexual orientation discrimination.

[1] See Baldwin v. Foxx, EEOC Appeal No. 0120133080 (July 15, 2015), at http://www.eeoc.gov/decisions/0120133080.pdf for the full EEOC decision.

[2] See Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012).

Appellate Division Clarifies Party Burdens in Employment Discrimination Cases

By Samantha Sherman, Esq.

The Appellate Division recently clarified the burdens of proof associated with front pay mitigation in employment discrimination cases and referred to the Model Civil Jury Charge Committee a request to develop a charge on front pay, including instructions addressing mitigation and reasonable duration.  See Quinlan v. Curtiss-Wright Corp., 41 A.3d 739, 2012 N.J. Super. LEXIS 49, at *48 (App. Div. 2012).

Quinlan v. Curtiss-Wright Corp. concerns a plaintiff who sued her former employer for gender discrimination and retaliation pursuant to New Jersey’s Law Against Discrimination, N.J.S.A. §§ 10:5-1 to 10:5-42, after the promotion of a male employee, which made him plaintiff’s supervisor despite his having less experience, and her subsequent termination. Id.  at *3-*5.  Following the Supreme Court’s resolution of certain discrete issues, the case was remanded to the intermediate appellate court to examine various open issues that were not previously resolved on appeal.  Id. at *9.

The court concluded that the trial court’s jury instructions on front pay made two errors.  First, the instructions erroneously imposed a burden on the defendant to prove that the plaintiff would not mitigate her damages in the future following the 2007 trial.  Id. at *35.  Although the appellate court agreed with plaintiff that an employer must identify positions that the employee should have diligently pursued as part of discharging its burden to prove the former employee’s failure to mitigate her damages leading up to the time of trial, it stated that “[i]t is unfair to compel the employer to forecast what lucrative jobs will, in fact, be obtainable in the future market and to further demonstrate to the jury that plaintiff will not pursue them.”  Id. at *39-*41.

Second, the instructions failed to explicitly state that “a plaintiff has not met her initial burden of proving her lost income unless she presents evidence to prove what she would have earned had she not suffered the wrong committed by the defendant, how long she would have continued to receive those earnings, and a reasonable likelihood that she will not be able to earn that amount in the future, such as through alternative employment.”  Id. at *43.  Accordingly the plaintiff must prove that “her compensable injuries are permanent or otherwise will endure into the future for a reasonably likely time.” Id. at *44-*45.

The court noted that the absence of a model jury charge on front pay burdens of proof and the dearth of New Jersey case law squarely addressing the issue were largely to blame, id. at *46-*47, and referred a request for such a charge to the Model Civil Jury Charge Committee. Id. at *48-*49.

As a result of its findings, the court vacated the front pay award and ordered a new trial on that issue with updated proofs on plaintiff’s post-2007 efforts to mitigate her damages and with proper jury instructions. Id. at *56. The court also vacated the award of punitive damages as the amount is inextricably intertwined with the front pay issue and remanded it for retrial. Id. at *62. In addition, the court noted that the awards of prejudgment interest, counsel fees, and the precise amount of negative tax consequences must abide the new trial. Id. All other aspects of the final judgment were affirmed with the understanding that the “front pay” period from the February 2007 verdict through the date of its April 5, 2012 opinion will now be included within the “back pay” period when the case is retried. Id. at *62-*63, n.15.

Federal Appeals Court: Company May Fire HR Director Conducting Investigation; Harassment/Discrimination Policies Not a Defense Where Alleged Harasser is High-Ranking Supervisor

By Andrew M. Moskowitz, Esq.

Martha Townsend was an office manager and receptionist.  She alleged that, over a near two-year period, Hugh Benjamin, a vice-president, shareholder and husband of shareholder Michelle Benjamin, had sexually harassed her.  On March 17, 2005, Ms. Townsend reported the sexual harassment to the company’s HR Director, Ms. Grey-Allen.  Five days later, the company fired Ms. Grey-Allen, allegedly because she had discussed Ms. Townsend’s allegations with an outside party.  A day after Ms. Grey-Allen’s termination, Ms. Townsend resigned.

In Townsend v. Benjamin Enterprises (2d Cir. May 9, 2012), the Second Circuit Court of Appeals—which covers federal district courts in New York, Connecticut and Vermont—  addressed the above scenario..  The Court held that the HR Director’s initiation of an internal investigation did not constitute participation “in an investigation, proceeding, or hearing” as defined by Title VII of the Civil Rights Act of 1964.  The Court therefore affirmed the dismissal of the HR Director’s claim.

The Towensend Court also addressed when an employer may claim the Faragher/Ellerth affirmative defense.  This defense permits an employer who has not fired, suspended, or demoted an employee to assert as a defense its implementation of appropriate HR policies and the employee’s failure to avail herself of these policies.  The Towensend court held that, where the supervisor holds a sufficiently high position in the organization, the Faragher/Ellerth defense is not available.The Towensend Court noted that Title VII prohibits an employer from retaliating against an individual who has opposed an unlawful practice or who has participated in any manner “in an investigation, proceeding, or hearing.”  The HR Director, Ms. Grey-Allen, had not alleged that she had opposed an unlawful practice.  Instead, she argued that, by conducting an investigation into Ms. Townsend’s allegations of sexual harassment, she had “participated” in an investigation.

Although the U.S. Equal Employment Opportunity Commission (EEOC) had submitted a brief in support of Ms. Townsend’s position, the Towensend Court nevertheless held that participating in an employer’s internal investigation conducted apart from a formal charge with the EEOC was not an “investigation” as defined by Title VII.

The Towensend Court also addressed whether the Faragher/Ellerth affirmative defense remained available when, by virtue of his high position in the organization, Hugh Benjamin, the alleged harasser, functioned as the employer’s “proxy” or “alter ego.”  The Court held that, under such a scenario, this defense was unavailable.  The Court held that the jury did not err in holding that, as the company’s only corporate vice president, second-in-command and shareholder, Mr. Benjamin served as the employer’s proxy or alter ego.

Therefore, under the holding in Towensend, an employee who conducts an internal HR investigation of a claim that is not the subject of a formal charge with the EEOC does not possess a valid retaliation claim under Title VII.  Moreover, pursuant to Towensend, where a supervisor with a sufficiently high position in a company is the alleged harasser, an employer may not claim as a defense that it exercised reasonable care to prevent and correct sexual harassment and that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.