HR & Employment Law Conference

Philadelphia, PA

Spring, 2020

EEOC’s Perspective

Peterson v. L inear Controls , Inc.,

757 Fed. Appx. 370

(5th Cir. Feb. 6, 2019)

(a)It shall be an unlawful employment practice for an employer –

(1) 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 race, color, religion, sex, or national origin

Fifth Circuit: “ultimate employment

decisions”

hiring, granting leave, discharging, promoting,

compensating

Stewart v. Union County Board of Education, 655 Fed. Appx. 151

(3d Cir. 2016) (plaintiff had not “suffered an actionable

adverse action”)

Harris v. Attorney General United States, 687 Fed. Appx. 167 (3d Cir. 2017) (the employer had not acted

with respect to the plaintiff’s “compensation, terms, conditions, or privileges of employment.” )

And the other circuits?

Reject the restrictive approach

Davis v. NYC Dept. of Educ., 804 F.3d 231, 235 (2d Cir. 2015)

Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 594 (6th Cir. 2004)

Lewis v. City of Chicago, 496 F.3d 645, 654 (7th Cir. 2007)

Wedowv. City of Kansas City, 442 F.3d 661 (8th Cir. 2006)

Chuang v. Univ. of Cal. Davis, Bd. Of Trs ., 225 F.3d 1115, 1125 (9th Cir. 2000)

Sanchez v. Denver Pub. Schs., 164 F.3d 527, 532 (10th Cir. 1998)

Davis v. Town of Lake Park, 245 F.3d 1232, 1238 (11th Cir. 2001)

All over the map

Cham v. Station Operators, Inc., 685 F.3d 87, 94-95

(1st Cir. 2012)

Caraballo-Caraballo v. Correctional Adminis tration,

892 F.3d 53 (1st Cir. 2018)

Jensen-Graf v. Chesapeake Emp’rs ’ Ins. Co., 616 Fed.

Appx. 596, 597-98 (4th Cir. 2015)James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371

(4th Cir. 2004)

Douglas v. Donovan, 559 F.3d 549, 552 (D.C. Cir.

2009)Freedman v. MCI Telecomms. Corp., 255 F.3d 840,

844 (D.C. Cir. 2001)

Petition for Writ of Certiorari, Peterson v. Linear Controls, Inc.,

2019 WL 2024844 (May 7, 2019)

Are the “terms, conditions, or privileges of employment” covered

by Section 703(a)(1) limited only to hiring, firing, promotions,

compensation, and leave?

Altitude Express Inc. v. Zarda

Whether the prohibition in Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e-2(a)(1), against

employment discrimination “because of . . . sex”

encompasses discrimination based on an individual’s

sexual orientation.

Bostock v. Clayton County, Georgia

R.G. & G.R. Harris Funeral Homes Inc. v. Equal

Employment Opportunity Commiss ion

(1) Whether the word “sex” in Title VII’s prohibition on

discrimination “because of . . . sex,” 42 U.S.C. §

2000e-2(a)(1), meant “gender identity” and included

“transgender status” when Congress enacted Title VII in 1964; and (2) whether Price Waterhouse v. Hopkins

prohibits employers from applying sex-specific

policies according to their employees’ sex rather

than their gender identity.

Oral Argument

Held 10/8/19

(2) Prohibition on Inquiries into Wage History.

(a) It is an unlawful employment practice for an

employer, employment agency, or employee or agent

thereof:

(i) To inquire about a prospective employee’s wage

history, require disclosure of wage history, or condition employment or consideration for an interview or

employment on disclosure of wage history, or retaliate

against a prospective employee for failing to comply with

any wage history inquiry or for otherwise opposing any

act made unlawful by this Chapter.

(ii) To rely on the wage history of a prospective employee

from any current or former employer of the individual in

determining the wages for such individual at any stage in the employment process, including the negotiation or

drafting of any employment contract, unless such

applicant knowingly and willingly disclosed his or her

wage history to the employer, employment agency,

employee or agent thereof. BILL NO. 160840, as amended.

CHAPTER 9-1131. FAIR PRACTICES ORDINANCE:

PROTECTIONS AGAINST UNLAWFUL DISCRIMINATION

Signed into law 1/23/17; eff. 120 thereafter

Does the Inquiry Provision

Directly Advance the City’s Asserted Interest?

Lower court said NO.

Not one witness pointed to any study, data, statistics, report, or any other evidence to support the

proposition that initially depressed wages reflect discrimination. And, none of the testimony addressed

why asking about wage history necessarily results in the perpetuation of an initial discriminatory wage.

Moreover, no witness cited to evidence that prior wage history inquiry contributes to a discriminatory

wage gap.

(2) Prohibition on Inquiries into Wage History.

(a) It is an unlawful employment practice for an

employer, employment agency, or employee or

agent thereof:

(i) To inquire about a prospective employee’s wage history, require disclosure of wage history, or

condition employment or consideration for an

interview or employment on disclosure of wage

history, or retaliate against a prospective employee

for failing to comply with any wage history inquiry or

for otherwise opposing any act made unlawful by

this Chapter.

Greater Philadelphia Chamber of Commerce v. City of

Philadelphia, 949 F.3d 116, 147(3d Cir. 2020)

“To survive that inquiry, the City must show that ‘the harms it recites are real and that its restriction will in

fact alleviate each of them to a material degree.’ ‘Speculation or conjecture’ cannot satisfy this burden. A court’s inquiry under this prong ‘is not a license to reweigh the evidence de novo, or to replace

[legislators’] factual predictions with our own.’ Rather, a court’s task is merely to determine whether the

legislature has ‘drawn reasonable inferences based on substantial evidence.’”

PilaC

.

Connecticut &

Massachusetts &

Vermont & NY

Puerto RicoRico

Prior Salary as Any Other

Factor Other than Sex

Superior creds don’t matter in setting pay

Prior salary is all that matters Step 1/Level 1

Steps 7/9

“[P]ast salary may not be used as a factor in initial wage setting, alone or in conjunctionwith less invidious factors.”

887 F.3d 453 (9th Cir. 2018)

nono

no nonono

No but

No but

No but

No but

No but

586 U.S. 706 (2/25/19)

Rizo v. Yovina

950 F.3d 1217, 1232 (9th Cir. 2020)“only job-related factors qualify under the EPA’s fourth

affirmative defense and … prior pay is not one of them” cert. filed: 3/24/20

“A worker challenging employment discrimination often must

demonstrate her employer’s illegal intent. That is not easy. Employers

ordinarily are not so daft as to create or keep direct evidence of

discriminatory purpose.”

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)

1. Employee is in protected class, 2. Employee applied for promotion, 3. Employee was qualified/performing

in accordance with expectations, etc., 4. promotion given to someone outside employee’s class …..

Common articulated legitimate

nondiscriminatory reasons

𝑥 + 𝑎 𝑛 =

𝑘=0

𝑛𝑛

𝑘𝑥𝑘𝑎𝑛−𝑘 1 + 𝑥 𝑛 = 1 +

𝑛𝑥

1!+𝑛 𝑛 − 1 𝑥2

2!+ ⋯

2000-2009

Unlawful discrimination!

We promoted people

better qualified.

Plaintiff – YOU LOSE!

F igueroa v. Pompeo, 923 F.3d 1078 (D.C. Cir. 2019)

“The evidence must present a clear and reasonably specific explanation…. A plaintiff

cannot be expected to disprove a defendant’s reasons unless they have been articulated

with some specificity.”

“Still, with subjective standards, we also perceive an intolerable risk that a nefarious employer

will use them as cover for discrimination. ….Plaintiffs lack the resources (and the clairvoyance)

to guess at how their respective decisionmakers interpreted the criteria and to explain away

each standard at trial. We also expect that no reasonable jury would accept a vague and

slippery explanation.”

• Interview scores without explanation or evidence for why others were

evaluated more favorably

• “employee did not meet the requirements”• “we did what we thought was best for the employer”

• “we did not want the worker after we completed a subjective

evaluation procedure”

• “we selected better qualified candidates – look at our formulas andcharts and graphs showing this”

“Moreover, we won’t ignore the fact that the very nature of discrimination

in employment is such that showing discrimination by negative inference is

often necessary. … ‘The instances in which employers … openly

[discriminate against] employees appear to be declining. Regrettably,

however, this in no way suggests that discrimination based upon an

individual’s race, gender, or age is near an end.’ ‘It has become easier to

coat various forms of discrimination with the appearance of propriety, or to ascribe some other less odious intention to what is in reality

discriminatory behavior.’”

Greater Philadelphia Chamber of Commerce v. City of Philadelphia, 949 F.3d at

153 (3d Cir. 2020)

Cullen v. Select Medical Corp., 2019 WL 3976433 (3d Cir. Aug. 22, 2019)

v.

Different reasons

for termination

Different dates

when decision

was made

Different decision

makers

Hot Issues Re: ADA Reasonable Accommodation

12 weeks FMLA

EEOC v. Connections, CSP, 1:17-cv-00862

(D. Del. 9/10/19): consent decree + $550,000

EEOC v. M&T Bank,

2019 WL 4305365

(D. Md. 9/10/19)

$100,000 + full consent

decree (1/21/2020)

EEOC v. Divers ified Maintenance S ystem, LLC,

C.A. 8:17-cv-01835 (11/22/2019)

Full consent decree + $750,000

Questions?