EDITOR’S NOTE: The following is the text of the Equal Pay Act of 1963 (Pub. L. 88-38) (EPA), as amended, as it appears in volume 29 of the United States Code Continue reading
SEC. 701. For the purposes of this title– Continue reading
Below is a list of U.S. Supreme Court cases involving gender discrimination and women’s rights, including links to the full text of the U.S. Supreme Court decisions. Continue reading
If you believe your employment rights have been violated, you may want to file discrimination charges Continue reading
If you believe you have been the victim of a civil rights violation, you most likely have the option of filing a lawsuit Continue reading
If you believe you have been the victim of a civil rights violation, you most likely have the option of filing a lawsuit against those responsible for any harm suffered as a result. Continue reading
For most cases involving civil rights violations and discrimination, one of your options is to file a complaint with the government at the federal or state level Continue reading
Below is a list of federal laws that prohibit discrimination based on race in a number of settings Continue reading
Race discrimination occurs when a member of a racial group is subjected to different or unequal treatment Continue reading
As with many other legal topics, the realm of civil rights may seem to have its own language at times. Continue reading
Below is a list of federal laws that guarantee civil rights and prohibit discrimination in a number of settings, including links to the full texts of those laws. (Note: Many states have civil rights laws of their own which mirror those at the federal level, so your state may have its own laws that are very similar to those identified below. In addition, municipalities like cities and counties can enact ordinances and laws related to civil rights.)
- Age Discrimination Act of 1975
Prohibits discrimination on the basis of age in programs or activities receiving federal financial assistance.
- Age Discrimination in Employment Act
Prohibits employers from discriminating against workers and applicants who are 40 years of age and older, based on their age.
- Air Carrier Access Act of 1986
Prohibits discrimination against individuals with disabilities in the provision of (including access to) air transportation.
- Americans with Disabilities Act (ADA)
Protects persons with disabilities from discrimination in many aspects of life, including employment, education, and access to public accommodations.
- Architectural Barriers Act of 1968
Requires that buildings and facilities designed, constructed, altered, or leased with certain federal funds after September 1969 must be accessible to and useable by handicapped persons.
- Civil Rights Act of 1964: Title VII (Equal Employment Opportunities)
Prohibits employment discrimination based on race, color, religion, sex, and national origin.
- Civil Rights Act of 1991 (Intentional Employment Discrimination)
To amend the Civil Rights Act of 1964 to strengthen and improve Federal civil rights laws, to provide for damages in cases of intentional employment discrimination, to clarify provisions regarding disparate impact actions, and for other purposes.
- Civil Rights of Institutionalized Persons Act
Protecting persons in institutions (including residents in government-run nursing homes, and prisoners) from unconstitutional conditions.
- Disaster Relief and Emergency Assistance Act
Provides for equitable and impartial relief operations, without discrimination on the grounds of race, color, religion, nationality, sex, age, or economic status.
- The Equal Credit Opportunity Act
Prohibits creditors from discriminating against credit applicants on the basis of race, color, religion, national origin, sex, marital status, age, or because an applicant receives income from a public assistance program.
- Equal Pay Act of 1963
Requires that employers pay all employees equally for equal work, regardless of whether the employees are male or female.
- Fair Housing Act
Prohibits discrimination in the sale, rental, and financing of housing based on race, color, national origin, religion, sex, familial status, and disability.
- Family and Medical Leave Act
Gives employees the right to take time off from work in order to care for a newborn (or recently adopted) child, or to look after an ill family member.
- Individuals with Disabilities Education Act
Ensuring that the rights of students with disabilities are protected, and that all children with disabilities have available to them a free appropriate public education.
- National Voter Registration Act
Establishes procedures to increase the number of eligible citizens who register to vote in elections for national office.
- Older Workers’ Benefit Protection Act
Clarifies the protections given to older individuals in regard to employee benefit plans.
- Pregnancy Discrimination Act
Prohibits employment discrimination against female workers who are (or intend to become) pregnant — including discrimination in hiring, failure to promote, and wrongful termination.
- Rehabilitation Act of 1973
Protects disabled individuals from discrimination by employers and organizations that receive federal financial assistance.
- Religious Land Use and Institutionalized Persons Act
Protect individuals, houses of worship, and other religious institutions from discrimination in zoning and landmarking laws; also protects the religious exercise of inmates and other persons confined to certain institutions.
- Title IX of the Education Amendments of 1972
Prohibits sex discrimination in education programs that receive federal funds, to increase educational and athletic opportunities for females in schools and colleges nationwide.
- U.S. Code Title 42, Chapter 21 — Civil Rights
Title 42, Chapter 21 of the U.S. Code prohibits discrimination against persons based on age, disability, gender, race, national origin, and religion (among other things) in a number of settings — including education, employment, access to businesses and buildings, federal services, and more. Chapter 21 is where a number of federal acts related to civil rights have been codified — including the Civil Rights Act of 1866, Civil Rights Act of 1964, and the Civil Rights of Institutionalized Persons Act.
- The U.S. Constitution | Articles | Amendments
The U.S. Constitution, ratified in 1789, outlines the role and operation of government in the United States. Includes links to all articles and amendments, with annotations.
- Voting Rights Act of 1965
Prohibits the denial or restriction of the right to vote, and forbids discriminatory voting practices nationwide.
The U.S. Supreme Court recently expanded retaliation law in Thompson v. North American Stainless, LP by holding that an employee may sue for “third-party retaliation” under Title VII of the Civil Rights Act of 1964. Third-party retaliation occurs when an employer takes an “adverse employment action” (e.g., discharge or demotion) against someone other than the person who engaged in statutorily “protected activity” (e.g., filed a discrimination charge or lawsuit). Even before this decision, “retaliation” was the most prevalent charge at the Equal Employment Opportunity Commission (EEOC), representing 36.3% of total filings in 2010. Race discrimination charges ranked second at 35.9%, while sex discrimination charges were third at 29.1%.
Title VII prohibits employers from retaliating against an employee because he or she has “opposed” unlawful discrimination or “has made a charge, testified, assisted or participated in any manner in an investigation, proceeding or litigation under this chapter.” These are known as the “opposition” and “participation” clauses of Title VII. Filing a charge of discrimination is plainly “protected activity” under this definition. In Crawford v. Metropolitan Government of Nashville and Davidson County, TN, decided in 2009, the Supreme Court held that the “opposition” clause protects an employee who reports or opposes discrimination when answering an employer’s questions during an internal investigation. The Supreme Court has not yet addressed whether an employee’s mere participation in an internal investigation constitutes “protected activity” under the “participation” clause of Title VII when the employee has no knowledge of discrimination and the investigation is purely internal (i.e., unrelated to a discrimination charge or lawsuit).
For employers, the Supreme Court’s Thompson decision has ramifications for you in circumstances you may not have foreseen. For example, if one of your female employees files a sex discrimination charge with the EEOC and you fire her brother six weeks later, that could give rise to a third-party retaliation claim. Assume the brother had been verbally counseled for repeated performance issues. However, at the time his sister filed her EEOC charge, you had not given her brother a formal disciplinary write-up. Can the fired brother assert a third-party retaliation claim against your company for firing him in order to retaliate against his co-worker/sister for her EEOC charge? Based on the Thompson decision, the answer is yes. It remains to be seen whether the decision extends to an employee who answers questions as part of an internal investigation of alleged discrimination, or a co-worker who is in a relationship with that employee.
Thompson: Analyzing the Supreme Court’s Third-Party Retaliation Decision
In Thompson, North American Stainless, LP (NAS) fired Miriam Relalado’s fiancé and co-worker, Eric Thompson, three weeks after she filed a sex discrimination charge with the EEOC. Thompson filed his own charge and a subsequent lawsuit asserting that NAS fired him to retaliate against Relalado for her charge.
The United States District Court for the Eastern District of Kentucky granted NAS summary judgment on the grounds that Title VII does not permit third-party retaliation claims. It held that Thompson did not engage in any statutorily “protected activity” to support a retaliation claim such as filing a charge prior to his discharge. The Sixth Circuit Court of Appeals initially reversed but later affirmed the district court’s ruling.
The Supreme Court reversed and held that if the facts Thompson alleged are true, his firing constituted unlawful retaliation. The justices remanded the case to the district court for trial, explaining that Title VII’s anti-retaliation provision must be construed to cover a broad range of employer actions that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Applying this test, the Supreme Court deduced, a “reasonable worker obviously might be dissuaded from engaging in ‘protected activity’ if she knew that her fiancé would be fired.” The Supreme Court held that Thompson fell within the “zone of interests” protected by Title VII because (1) he was an NAS employee, (2) Title VII’s purpose is to protect employees from employers’ unlawful acts and (3) NAS’s alleged conduct was not accidental but unlawful retaliation intended to punish Thompson’s fiancée.
Applying the Decision to Future Claims: What Does “Zone of Interests” Mean?
The Supreme Court rejected NAS’s concern that it would be at risk for a retaliation claim from any employee who has a relationship with employees engaging in “protected activity.” It explained that an individual’s interests cannot be “so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.” However, the Supreme Court declined to “identify a fixed class of relationships” for which third-party retaliation is unlawful. Does third-party retaliation apply only to family and couples who are engaged to be married? Does it apply to those who are merely dating? To friends in the workplace? To work acquaintances?
What we do know from the Thompson decision is that the “zone of interests” extends beyond an employee who engages in protected activity to her fiancé. Given that, the protected zone most likely extends to immediate family members. It is unlikely that courts will extend the “zone of interests” to mere work acquaintances. However, as the Supreme Court explained, retaliation claims are highly fact-dependent. Exactly who falls within the protected “zone of interests” will be determined by subsequent cases over the next few years. Given that, it behooves employers to consult with their labor and employment counsel to ascertain whether termination decisions now expose them to future third-party retaliation claims and whether those claims are readily defensible.
Anthem College Online Tolerated a Hostile Workplace, Federal Agency Charged
PHOENIX – High-Tech Institute, Inc., doing business as Anthem College Online, will pay $260,000 as part of a settlement of a sexual harassment lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today. In its suit in U.S. District Court for the District of Arizona (Civil Action No.CV-09-2041-ROS), the EEOC charged that Anthem College subjected female employees to repeated sexual harassment by supervisors.
According to the EEOC, six female admissions representatives working at the Phoenix, Ariz., location were frequently sexually harassed by three supervisors. The EEOC’s allegations included that the supervisors engaged in unwanted sexual touching and comments, writing sexually suggestive e-mails and soliciting sex from employees during unwelcome visits to the employees’ homes in the early morning hours. Some of this abusive behavior was witnessed by other Anthem College employees, the EEOC said.
The EEOC maintained that Anthem College knew or should have known about and tolerated this sexually hostile work environment caused by its supervisors. The agency said the company’s former human resource manager wrote that Anthem College employees were fearful to come forward because an alleged harasser was seen drinking and socializing with upper management and that there was blatant disrespect to employees and rampant poor management.
According to the EEOC, the company unreasonably delayed removing a class member from under the supervision of an alleged harasser who, the company’s own former human resources manager testified, was a “psychopath.” The EEOC argued that despite Anthem College’s knowledge about the harassment, the company failed to take reasonable steps to investigate and remedy the harassment.
“Employees who have an official or strong duty to communicate to management are considered part of management,” said EEOC Regional Attorney Mary Jo O’Neill of the Phoenix District Office, which originated the legal action. “Here, there was a breakdown in reporting by persons whose job descriptions required them to report any issues affecting the normal operation of the admissions department, including sexual harassment. They failed to do so, with serious consequences.”
Sexual harassment violates Title VII of the Civil Rights Act of 1964. The EEOC filed suit after first attempting to reach a pre-litigation settlement through its conciliation process.
In addition to the settlement requiring Anthem College to pay $260,000 to the former employees, Anthem College also must investigate any further complaints of sexual harassment, provide training for managers and supervisors on conducting sexual harassment investigations and post a notice that harassment of Anthem College’s employees will not be tolerated.
EEOC Phoenix District Director Rayford O. Irvin added, “We insist that companies fulfill their obligation to protect employees from sexual harassment and provide the necessary training to ensure this protection.”
CHARLOTTE, N.C. – A North Carolina ambulance service violated federal law by discriminating against several female employees because they were pregnant, the Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed today.
According to the EEOC’s complaint, SDTM Investments, Inc., doing business as Tarheel Medical Transport, subjected Samantha Holder and other pregnant employees to different terms and conditions of employment from its non-pregnant employees. The complaint alleges that upon learning that an employee was pregnant, Tarheel required the employee to take a leave of absence or be discharged. The EEOC contends that around March 2009, the company refused to let Holder work in her job as an emergency medical technician and discharged her because she was pregnant.
Several months after Tarheel discharged Holder, EEOC alleges that the company also forced office manager and emergency medical technician Christina Berdan to take medical leave from her job. Tarheel informed Berdan that she could not return to work until after the birth of her child in spite of the fact that Berdan was physically fit, had no medical restrictions and could fully perform the duties of her job. As a result of this practice, Holder, Berdan and other pregnant employees were either terminated or forced to take a leave of absence despite the fact that they were fully capable of performing their job duties.
Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act, prohibits employers from discriminating against pregnant employees. The EEOC seeks back pay, compensatory damages and punitive damages for Holder and the other affected employees, as well as injunctive relief. The EEOC filed suit in U.S. District Court for the Eastern District of North Carolina (Equal Employment Opportunity Commission v. SDTM Investments, Inc. d/b/a Tarheel Medical Transport, Civil Action No. 4:11-CV-00080) after first attempting to reach a pre-litigation settlement through its conciliation process.
“Working women who chose to have children cannot be penalized or treated differently from other employees simply because they are pregnant,” said Lynette A. Barnes, regional attorney for the EEOC’s Charlotte District Office. “Employers must remember that paternalistic attitudes toward pregnant employees can result in unequal treatment at work, which violates federal law.”
SDTM Investments, Inc. doing business as Tarheel Medical Transport, operates an ambulance service in Beaufort, Wilson and Craven counties in North Carolina, transporting non-emergency patients from their care facilities or homes to medical appointments. It employs approximately 40 people.
Has your company adopted a records management and document retention program that will pass legal muster? Does your company have a protocol in place to ensure that a litigation hold is issued at the right time and to track compliance after the hold is issued? If not, a recent federal court decision serves as a stark reminder that employers must issue litigation holds on a timely basis and track compliance with the directives found in the hold. In Green v. Blitz U.S.A., Inc. (E.D. Tex. 2011), the court sanctioned the defendant in a products liability case when it learned, more than two years after the case had closed, that the defendant declined to issue a litigation hold and destroyed potentially relevant documents.
In Green, the jury returned a verdict in favor of the defendant, but discovery in a related case later revealed that the defendant had failed to produce a number of relevant documents. Further inquiry revealed that the defendant had never issued a litigation hold, had placed a self-confessed “computer illiterate” in charge of its document retention efforts, had declined to conduct an electronic word search for relevant e-mails and had failed to suspend its standard document destruction policy. In addition to imposing a $250,000 sanction, the court also required the defendant to provide a copy of the court’s order and opinion to every plaintiff in every lawsuit pending against it in the past two years, and to file a copy with its first responsive pleading in every new lawsuit for the next five years.
Although employers and attorneys have become increasingly familiar with the duty to preserve relevant evidence, Green demonstrates that some companies continue to get it wrong. It is increasingly important to understand what events will likely trigger the duty to preserve in the context of an employment-related dispute, and what types of documents must be protected.
An employer has a duty to preserve documents when it knows or should know that evidence is relevant to a current or future legal action. This duty arises automatically when an employer reasonably anticipates litigation. An employer can reasonably anticipate litigation when it receives notice that it is party to a legal or administrative proceeding. See, e.g., Jones v. Bremen High Sch. Dist. 228, No. 08-CV-3548, 2010 WL 2106640, at *6 (N.D. Ill. May 25, 2010) (“Defendant clearly had a duty to preserve documents relevant to plaintiff’s claims when it received notice of plaintiff’s EEOC charges.”); Mosaid Tech. Inc. v. Samsung Electronics Co., 348 F. Supp. 2d 332, 336 (D.N.J. 2004) (“[T]he duty to preserve exists as of the time the party knows or reasonably should know litigation is foreseeable. At the latest, in this case, that time was . . . when [the plaintiff] filed and served the complaint.”).
An employer may also have a duty to preserve evidence before any formal proceeding has begun. For example, some courts hold that an employer can reasonably anticipate litigation when it receives a letter threatening potential legal action and requesting the preservation of relevant information. See, e.g., D’Onofrio v. SFZ Sports Group, Inc., No. 06-687, 2010 WL 3324964, at *7–8 (D.D.C. Aug. 24, 2010) (holding that the employer had a duty to preserve relevant evidence when it received a letter from the plaintiff stating that she intended to initiate litigation, and requesting that electronically stored information be preserved); Sampson v. City of Cambridge, 251 F.R.D. 172, 181 (D. Md. 2008) (stating that “[i]t is clear that the defendant had a duty to preserve relevant evidence . . . when plaintiff’s counsel sent the letter to defendant requesting the preservation of relevant evidence, including electronic documents. At that time, although litigation had not yet begun, defendant reasonably should have known that the evidence described in the letter ‘may be relevant to anticipated litigation.’”)
An employer may even have a duty to preserve relevant evidence, based simply on the totality of the circumstances. In one case, a federal court in Connecticut upheld a $2.6 million jury verdict and held that it was proper to instruct the jury to draw an adverse inference against the employer for failing to suspend its standard document destruction policy three months before the plaintiff filed the complaint. The court reasoned that several factors demonstrated that the employer could have reasonably anticipated litigation well before the complaint was filed, including: the nature and severity of the plaintiff’s injury, the employer’s pre-litigation retention of a medical expert and claims manager to evaluate the scope of the plaintiff’s injury, and the use of video surveillance to monitor the plaintiff’s activities. While the court declined to cite a single triggering event, it concluded that the totality of the circumstances indicated the employer had a duty to preserve documents at the time it destroyed certain reports.
These cases make clear that employers should routinely evaluate what events trigger the duty to preserve. Moreover, simply issuing a litigation hold or asking employees to preserve documents, without actively monitoring compliance, is insufficient to avoid legal liability. Employers should develop a standardized process to identify triggering events and ensure that key players understand their preservation obligations. Many employers, for example, issue a legal hold and require recipients to certify in writing that they have identified all relevant information. Other employers periodically circulate legal holds to notify new employees and remind existing employees of the ongoing duty to preserve. In light of the potential sanctions that can be imposed on noncompliant companies, it is essential that employers implement a standardized process for issuing legal holds and ensuring compliance.
Types of Documents to Preserve
As a general rule, an employer need not preserve “every shred of paper, every e-mail or electronic document, and every backup tape.” Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 217 (S.D.N.Y. 2003). Rather, an employer need only preserve “unique, relevant evidence that might be useful to an adversary.” Id. The scope of this duty will vary depending on the nature of the claim, but information must be preserved that an employer knows or should know is relevant to the action, is reasonably calculated to lead to the discovery of admissible evidence, is reasonably likely to be requested during discovery, or is the subject of a pending discovery request. This includes electronic and hard copy documents that are in existence at the time the duty attaches, and all relevant documents created thereafter.
Typically, in an employment discrimination case, an employer must preserve the claimant’s personnel file, e-mail account for the time in question, and correspondence to and from supervisors and other key players, including human resources professionals involved in the adverse employment action. The employer should also preserve information related to potential comparators. This may include employees who worked in the same position as the claimant, reported to the same supervisor or were subject to the same type of treatment or adverse action. Information related to the nature, timing and resolution of any other recent discrimination claims filed against the employer should also be preserved.
There is no one-size-fits-all approach to issuing legal holds, and applying the duty to preserve to real-world situations often presents a challenge.
Female Drafter Paid Less Than Male, Then Fired for Complaining, Federal Agency Charged
CLEVELAND — Hyundai Ideal Electric Company (HIEC), located in Mansfield, Ohio, will pay $188,000 to settle a sex discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.
In its lawsuit, the EEOC charged that Tabatha Wagner, an experienced female drafter, was hired for a job preparing drawings and sketches for batteries and engines, but at a lower salary than that of a similarly situated male who was hired only months later. Upon learning of the disparity in wages, Ms. Wagner complained to HIEC’s then human resources manager, and was subsequently fired as retaliation, the EEOC said.
Wage discrimination and retaliation for complaining about it violate the Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964. The EEOC filed suit, No. 1:10-cv-1882, in U.S. District Court for the Northern District of Ohio, Eastern Division, after first attempting to reach a pre-litigation settlement.
In addition to the monetary relief, the two-year consent decree settling the suit provides for training for all human resources personnel and employees at its Mansfield, Ohio, facility and posting an anti-discrimination notice to all employees. The training will focus on complying with federal anti-discrimination laws, including but not limited to Title VII and the EPA, and preventing discrimination in pay and terms and conditions of employment as well as retaliation.
“The EEOC will not tolerate discriminatory pay practices,” said Debra Lawrence, regional attorney for the EEOC’s Philadelphia District. “To help build public awareness of this continuing problem, EEOC offices are holding Fair Pay Day events throughout the country.”
According to its web site (www.hyundaiideal.com), Hyundai Ideal Electric Co. is the market leader in medium power generators for gas, steam and hydro turbines, and diesel engines. The Mansfield facility is the company’s home office.