Voluntary Benefits Provided in a Discriminatory Manner May Constitute an Adverse Employment Action

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Published on Wednesday, 21 March 2012 01:04

A recent decision by the U.S. Court of Appeals, 4^th Circuit, emphasizes that if an employer provides benefits in a discriminatory manner that may constitute an adverse employment action even if the employer is not required to provide the benefits. Further, Title VII protects both current and former employees from discriminatory employment actions. The case involves Karla Gerner, who sued her former employer, Chesterfield County, Virginia ("County"), claiming that the County unlawfully discriminated against her by offering her a less favorable severance package than that offered male employees holding similar positions. Gerner worked for the County for more than twenty-five years and always received “positive performance evaluations.”  In 2009, County officials advised Gerner that due to reorganization, her position was being eliminated. They asked her to sign a severance agreement that included three months of pay and health benefits in exchange for a voluntary resignation and waiver of any cause of action against the County. Gerner refused to sign the agreement, and upon receipt of her right to sue letter from the Equal Employment Opportunity Commission (EEOC) she filed a lawsuit against the County alleging disparate treatment on the basis of sex in violation of Title VII. Specifically, Gerner alleged that the County did not offer her the same “sweetheart” severance package offered to her male counterparts, which included offers of transfers to other positions with less responsibility (and the same salary and benefits) or being kept on the payroll with benefits of up to 6 months to enhance their retirement benefits. The district court dismissed Gerner’s complaint, on the ground that she failed to allege a Title VII claim because the County’s allegedly discriminatory denial of severance benefits did not constitute an adverse employment action unless the benefits were a “contractual entitlement.”

On appeal, the court held that if a benefit is part of the employment relationship it may not be “doled out in a discriminatory fashion” even if the employer is not required to offer the benefit.  Thus, benefits that an employer is not required to provide, such as a severance package, may still qualify as a privilege of employment and as such provide the basis for a Title VII action if the benefits are provided in a discriminatory manner thereby constituting an adverse employment action. The court emphasized that if the “employee did not volunteer for a change in employment benefits or retain a job in lieu of a new benefit, courts have consistently recognized that the discriminatory denial of a non-contractual employment benefit constitutes an adverse employment action.” The court further highlighted that “Title VII protects both current and former employees from discriminatory adverse employment actions. Title VII makes it an unlawful employment practice for an employer "to discriminate against any individual" on the basis of membership in a protected class. Courts have consistently interpreted this intentionally broad language to apply to potential, current, and past employees.” Read More. 

Employers Must Avoid Discriminatory Hiring Practices

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Published on Tuesday, 31 January 2012 21:53

Title VII of the Civil Rights Act of 1964 prohibits discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment. In terms of hiring, employers must ensure that they are not excluding a particular class of protected individuals in violation of Title VII, such as all women. In a recent case, the Equal Employment Opportunity Commission (EEOC) charges that Mavis Discount Tire refused to hire women for a wide variety of positions even though some of the applicants had superior qualifications. The Millwood, New York-based company, which also operates as Mavis Tire Supply Corporation and Mavis Tire NY, sells tires and a variety of other automotive parts and services. The case involves the Mavis job positions of tire installers, mechanics, assistant managers, managers, and related positions. The EEOC alleges that since at least 2008, only one woman was employed in any of these positions out of approximately 800 employees. The EEOC also alleges that out of approximately 1,300 hires that Mavis made between 2008-2010 for the above listed positions, not one was female. Additionally, even though Mavis allegedly failed to properly maintain applications—which is itself a separate violation of federal law—the applications that were available indicated that Mavis rejected women with superior credentials and experience, and less qualified men were hired.

Anna M. Pohl, EEOC trial attorney, commented that “Women have been working in traditionally all-male fields like automotive services and sales for quite a while, but Mavis seems to be stuck in the past.”

For employers concerned about possible discriminatory hiring practices in their workplace, the Office of Federal Contract Compliance Programs (OFCCP) has created a Guide for Small Businesses with Federal Contracts, which contains helpful information even for those employers who are not dealing with federal contracts. Specifically, the OFCCP created a self-audit for employers to take in order to assess their hiring practices in the workplace, to ensure that discrimination is not occurring. On the issue of discriminatory hiring practices, the self-audit asks: (1) Were there women and minority applicants? (2) What were their qualifications? (3) How did their qualifications compare to the qualifications of the people who were hired? (4) Why did the decision-makers select those hired and not the women and minority applicants who seemed to have comparable qualifications? (5) Were all the qualifications necessary for successful performance of the job? Employers would be wise to keep this checklist as a guide when hiring and to take the self-audit created by the OFCCP to help ensure that they are not engaging in discriminatory workplace practices. For more information on the self-audit, click here.

Female Employees Seek $100 Million for Gender Discrimination

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Published on Thursday, 12 January 2012 18:34

Female sales representatives for Quest Diagnostics have accused the diagnostic testing company of gender discrimination in a $100 million federal lawsuit. The lawsuit was filed Thursday in U.S. District Court in Newark, N.J., by two employees of the company's AmeriPath division, Erin Beery and Heather Traeger. They allege a wide range of discriminatory practices by the Fortune 500 company, including that high-ranking company officials fostered an "old boys' club" environment which forced women to work under less favorable circumstances than men and denied them equal advancement opportunities. Read More. 

Employers Must Implement Consistent Disciplinary Policies and Procedures

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Published on Tuesday, 15 November 2011 16:59

A recent case, Eaton v. Indiana Department of Corrections, illustrates how important it is for employers to implement consistent disciplinary policies and procedures. The case involves Autumn Eaton who worked for the Indiana Department of Corrections (DOC) as a correctional officer. She was first assigned to watch tour duty, which involved walking. The DOC then reassigned her to the control room which did not require walking. Eaton also had a schedule in which she rotated between a “short week” and a “long week.” During this time, the DOC warned Eaton about excessive absenteeism. Subsequent to that the DOC switched Eaton to a five day a week, 8 hour shift which she claimed was due to her absences which she had taken as sick leave. Immediately after being reassigned, Eaton took a 2 month leave of absence under the Family and Medical Leave Act (FMLA). Thus, she never worked the new shift because when she returned the DOC put her back on the alternating shift schedule. Shortly after returning, Eaton was in a car accident which aggravated her back condition and resulted in work restrictions. Subsequently, the DOC reassigned her to the control room. When Eaton repeatedly refused the new assigned her supervisor asked for her belt and badge. She ultimately turned these over to her supervisor and left the facility. Subsequently, Eaton attempted to return to the facility for her next shift but the DOC barred her from entering. Eaton filed a lawsuit claiming violations of Title VII, the Americans with Disabilities Act and the FMLA asserting that she met her employer’s expectations and had been subjected to an adverse employment action based on her sex. The district court granted summary judgment on all of her claims except Title VII, on the basis that Eaton failed to identify a similarly-situated male that had been treated differently, even though Eaton offered evidence regarding a male co-worker, Dennis Curtis, who had not been terminated under what Eaton claimed were similar circumstances. Curtis had also refused assignment to a new position and left the facility after being asked to turn in his belt and badge. He then returned to the facility forty five minutes later and the DOC permitted him to resume working without any discipline. Eaton appealed and the Seventh Circuit reversed holding that the district court erred in holding that the two situations were not comparable. Read More.