Articles Posted in Title VII

Ellen Johnston

Dallas Employment Trail Lawyer Ellie Johnston

In the pursuit of professional success and fulfillment, the workplace should be a fair and inclusive environment for everyone. However, the persistent issue of gender discrimination continues to cast a shadow over the career paths of many individuals. In this blog post, we will delve into the nuances of  gender discrimination in the workplace, emphasizing the critical role that legal support plays in empowering victims to stand against injustice and fostering environments that champion equality.

 The Silent Struggle: Gender Discrimination Unveiled

For a long time, there was a gray area under the Americans with Disabilities Act, the Pregnancy Discrimination Act, and relevant case law when it came to accommodating pregnancy in the workplace. Under the current laws, discriminating against employees for being pregnant is illegal, but the current law’s protections do not extend far enough. The Pregnant Workers Fairness Act (“PWFA”) bridges this gap and goes into effect on June 27, 2023. Let’s explore the key provisions of this act and its significance in promoting workplace equality and supporting pregnant workers.

The PWFA requires employers to provide reasonable accommodations to pregnant employees. Examples of these accommodations include adjustments to work schedules, access to water and bathroom breaks, modified tasks, assistance with heavy lifting, and temporary transfers to less strenuous positions. The PWFA mirrors the process under the Americans with Disabilities Act for receiving accommodations. In brief, engaging in the interactive process would mean approaching your employer or putting your employer on notice of your pregnancy. Then, engaging in the interactive process by asking for accommodations and working with your employer to find a reasonable accommodation. 

The PWFA also mandates that employers provide written notice detailing their protections under the act. This includes information about the right to be free from pregnancy discrimination, the right to reasonable accommodations, and avenues for reporting violations. Additionally, employers are required to maintain records related to reasonable accommodations and make them available for inspection upon request. Both private and public employers are covered as long as an employer has fifteen employees including Congress, Federal agencies, employment agencies, and labor organizations.

The dissolution of abortion rights that should be guaranteed as substantive due process rights have a direct impact not only on healthcare, but on employment. I know that’s odd to say, but it’s a person’s personal health decision that should not be interfered with, even by their employment. However, with the Supreme Court’s decision a flurry of companies began to step in to protect abortion rights in a private sector way. This is untenable as a solution. While helpful in the short-term, it creates a complex picture for employment discrimination. 

As a hypothetical, let me set up Grayson. They are currently pregnant and would like to access abortion in a different state. Their employer is Be Free Sporting Goods who has promised that they will give time off and leave to allow Grayson the opportunity to pursue abortion access outside the restrictive laws of states like Texas. Despite this being a personal healthcare choice between them and their doctor, Grayson now has to disclose their decision to access abortion to their human resources department. Be Free is a big corporation – their decision is not communicated to one person, not even two people, but several people must work on the request before it is approved. Grayson’s request is then denied because Marla in the human resources department has a sincerely held religious belief that abortion is wrong. And this juncture is where the private sector’s “solutions” to abortion access fall short.

On one hand, Grayson should have the absolute right to make private healthcare decisions about their own body without interference. Yet, an employer’s approval process just puts more strain on their decision, one that did not exist pre-Dobbs – before the Supreme Court made a judicial decision that appeared more political. The denial of Grayson’s leave requests invokes employment law in a myriad of ways. The right to abortion only affects individuals with the ability to become pregnant, but is it pregnancy discrimination if the intention is to access abortion thus ceasing the pregnancy? Is it sex discrimination because a transman, who has the capacity to become pregnant “shouldn’t be pregnant” and so the human resources department discriminates based on sex because of this man’s decision to become pregnant? 

Suppose both husband and wife, Mr. and Mrs. Johnson, have worked for Democan in the marketing department for 15 years. The couple loves their job because they can help their pastor with his re-election campaign. For most of their career, the couple has reported to the marketing director, Joe Abbott. Mr. Abbott retired seven months ago. Democan then hired Donald Paxton as the new Marketing Director.

Since his first day, Mr. Paxton has had a crush on Mrs. Johnson. Mr. Paxton waits until Mrs. Johnson is alone then he approaches her in the backroom and begins to caress her body. Mrs. Johnson tells Mr. Paxton to stop as his actions were unwelcomed and made her uncomfortable. Mr. Paxton continued with his actions, and Mrs. Johnson continued to ask him to stop. Mrs. Johnson had enough, so she engaged in protected activity by filing multiple sexual harassment complaints with human resources. Human resources did nothing. By this point, Mrs. Johnson feared going to work, so she decided that her only option was to file a charge of discrimination (“charge”) with United States Equal Employment Opportunity Commission (EEOC). After she filed with the EEOC, she notified human resources and Mr. Paxton that she formally filed a charge with EEOC.

Mr. Paxton called Mr. Johnson into his office and asked Mr. Johnson if he would instruct his wife to withdraw her charge of discrimination. Mr. Johnson refused. The following day, Mr. Paxton wrote up both Mr. and Mrs. Johnson for insubordination. They asked Mr. Paxton how they were insubordinate, and Mr. Paxton had no response. The following week, Mr. Paxton terminated Mr. Johnson for eating chips at his desk. Mr. Johnson does not believe Mr. Paxton terminated him for eating chips because his other colleagues were eating chips at their desk as well. Mr. Johnson believes that he was terminated because his wife filed a charge.

The Muslim holy month of Ramadan is observed by 1.6 billion people around the world. Practicing Muslims will be fasting from dawn until dusk (approximately 6 a.m. to 8 p.m.) beginning on April 2, 2022 and ending on May 2, 2022. Fasting means no food or liquid of any kind. Yes, that includes water! Ramadan is meant to be a time of spiritual discipline – of deep contemplation of one’s relationship with God, extra prayer, increased charity and generosity, and intense study of the Quran. It is a joyous month meant to be shared and celebrated with loved ones.

Fasting during Ramadan is one of the five pillars – or duties – of Islam, along with the testimony of faith, prayer, charitable giving, and making a pilgrimage to Mecca. The practice of fasting is intended to be a reminder of human frailty and dependence on God for sustenance. It reduces the distractions of life to allow time to focus on our relationship with God. Importantly, it provides an example of the hunger and thirst the poor experience, which is intended to encourage empathy for and charity to the less fortunate.

During Ramadan, it is not unusual for Muslims to be up past midnight for prayer and then get up around 5 a.m. to eat the first meal of the day, which must last until sunset. This means lots of high-protein food and drinking as much water as possible until dawn, after which we cannot eat or drink anything. At dawn, Muslims will perform their first prayer of the day, followed by four additional mandatory prayers throughout the day and an optional late-night prayer, which is typically only preformed during Ramadan. Many Muslims, myself included, are typically more devoted to their prayers during this month and try to set time aside throughout their day to timely complete each of the five scheduled daily prayers. For me, that means blocking time on my work calendar to ensure I am not scheduled for meetings or appointments during the various prayer times that fall within work hours.

Employment issues will again take center stage at the U.S. Supreme court on January 7, 2022, and appeals related to vaccine mandates are sure to be the main attraction. Alas, vaccine mandates will be squarely before the Court and audiences nationwide will soon receive some clarity from the nation’s highest Court regarding vaccine mandates in the workplace.   

Enforcement of the Biden Administration’s vaccine mandates applicable to government contractors, CMS and large employers had been stayed or partially stayed by various federal courts.  The OSHA Emergency Temporary Standard (ETS) applicable to most employers having 100 or more employees was stayed by the Fifth Circuit Court of Appeals prohibiting enforcement of the rule.  However, on December 17, 2021, the Sixth Circuit Court of Appeals, which was chosen by lottery to hear the consolidated appeals challenging the ETS, dissolved the stay that the Fifth Circuit put in place. Thus, employers with 100 or more employees that are not specifically exempt from the standard due to disability or religious belief must now take steps to comply with the emergency rule. Judge Stranch delivered a gripping opinion addressing the question that has been vexing employers since the beginning of the pandemic:

Recognizing that the “old normal” is not going to return, employers and employees have sought new models for a workplace that will protect the safety and health of employees who earn their living there. In need of guidance on how to protect their employees from COVID-19 transmission while reopening business, employers turned to the Occupational Safety and Health Administration (OSHA or the Agency), the federal agency tasked with assuring a safe and healthful workplace.

Beginning in January 2020, the state of Texas increased the number of people who are considered “mandatory reporters” under Title IX. The mandatory reporters are tasked with immediately reporting Title IX related incidents like dating violence and stalking when they become aware of it. If a mandatory reporter fails to make this report, they are subject to criminal and employment penalties. When this law went into effect, it was looked at as a great step forward in universities combatting sexual violence on their campuses by tasking more people with reporting duties and having penalties for those who do not. Sexual violence, dating violence, and stalking have always been huge issues on college campuses, and it is only recently that the law has made a stride to try and close out loopholes in university reporting requirements. The flip side is that not reporting or being named in a Title IX complaint can have adverse consequences on a person’s employment. These adverse consequences are where Title IX and Title VII clash, and the fall-out can have damaging effects on both. 

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