What to Know About Route EEO

Transcription

1 What to Know About Route EEO A look in the rear-view mirror, monitor the crossroads, check for blind spots, and look ahead at developments in the enforcement of laws prohibiting employment discrimination. Kristin H. Johnson, Executive Director, Iowa Civil Rights Commission

2 U.S. Supreme Court

3 EEOC v. Abercrombie & Fitch Stores, Inc. U.S., 135 S.Ct (2015). Hani Khan, 19, worked at Hollister, an Abercrombie subsidiary, and was fired for wearing her hijab. She is one of three women who sued Abercrombie for failing to accommodate their religious requirements.

4 [A]n applicant need only show that his need for an accommodation was a motivating factor in the employer s decision. The intentional discrimination prohibition of Title VII disallows certain motives, regardless of the employer s actual knowledge.

5 Young v. United Parcel Serv., Inc., U.S., 135 S.Ct (2015).

6 There is no independent duty to reasonably accommodate pregnancy under Title VII. The Court established a modified McDonnell Douglas burdenshifting analysis for claims arising under the PDA rather than a failure-to-accommodate analysis as traditionally used for disabilities. The prima facie case requires: A showing that the employer s policies impose a significant burden on pregnant workers and its reasons are not sufficiently strong to justify the burden. A showing that the employer accommodates a large percentage of non-pregnant employees while failing to accommodate a large percentage of pregnant employees. A showing that the policies of the employer operate discriminatorily in practice.

7 Iowa Supreme Court

8 McQuistion v. City of Clinton 872 N.W.2d 817 (Iowa 2015)

9 Holding: There is no stand-alone duty to reasonably accommodate pregnancy under Iowa Code Chapter 216. Iowa courts will apply the same McDonnell-Douglas burden-shifting analysis used in Young v. UPS.

10 Baker v. City of Iowa City 867 N.W.2d 44 (Iowa 2015)

11 Under the facts of the case, enforcement of an antidiscrimination ordinance did not violate the employer s rights of freedom of association, freedom of speech, due process, and equal protection under the U.S. Constitution.

12 Dindinger v. Allsteel, Inc. 860 N.W.2d 557 (Iowa 2015)

13 Iowa Code 216.6A only applies prospectively, to conduct that occurred after its effective date of July 1, An employee can assert a wage discrimination claim under Iowa Code

14 Iowa Court of Appeals

15 Polk v. Dep t of Admin. Servs. N.W.2d, 2015 WL (Iowa Ct. App. April 22, 2015) (unpublished)

16 Defendants failed to preserve the issue for its review because the defendants did not present this argument to the district court. The Court specifically noted the defendants failure to even mention significant factor in either its proposed jury instructions or in its objection.

17 Wright v. Ross Holdings, LLC N.W.2d, 2015 WL (Iowa Ct. App. April 22, 2015)

18 The conduct did not affect the terms or conditions of her employment as required to establish a hostile work environment claim. Wright was not constructively discharged.

19 Federal 8 th Circuit

20 Minnihan v. Mediacom Commc ns Corp. 779 F.3d 803 (8th Cir. 2015)

21 Driving was an essential function of position. Minnehan was unable to perform the essential function with a reasonable accommodation. Mediacom made a good faith effort to assist in finding a reasonable accommodation.

22 Hilde v. City of Eveleth 777 F.3d 998 (8th Cir. 2015)

23 Hilde s retirement eligibility not a nondiscriminatory reason for failing to promote. Fact issues precluded summary judgment.

24 Walz v. Ameriprise Fin., Inc. 779 F.3d 842 (8th Cir. 2015)

25 Walz failed to demonstrate that she was able to perform essential functions of her position. Ameriprise was not liable under ADA for its failure to accommodate employee.

26 Sellers v. Deere & Co. 791 F.3d 938 (8th Cir. 2015)

27 No demotion as adverse employment action. Increased duties did not constitute adverse employment action. Failed to establish prima facie case of harassment.

28 Iowa District Court Jury Verdicts

29 Sexual harassment Retaliation Sexual discrimination/constructive discharge Plaintiff's verdict as to defendant CDI only. Back Pay - $50,000 Past Emotional Distress $75,000 Future Emotional Distress - $100,000. Tibodeau v. CDI, LLC

30 Employment Discrimination - Plaintiff alleges defendant failed to hire her for position based upon her actual disability Directed verdict for Defendant holding Plaintiff was not disabled as defined in Iowa Code Chapter 216 Plaintiff has appealed Hollinger v. State

31 Employee was terminated for failing to provide Dr.'s note stating that he did not have AIDS Verdict for Plaintiff - $26,283 4,283 (past earnings); $22,000 (emotional distress) Huber v. Krestena

32 Sexual orientation harassment, retaliation Jury verdict for defense Schilling v. Saur Danfoss

33 Sex and age discrimination Jury verdict for defense Gray-Fisher v. State of Iowa

34 Sexual Harassment National origin harassment Retaliation Back Pay: $446 Past Emotional distress: $150,000 Future Emotional distress: $350,000 Schemel v. Laxmee

35 Sexual Harassment National origin harassment Retaliation Back Pay: $16, Past Emotional distress: $200,000 Future Emotional distress: $400,000 Work Comp punitive damages: $100,000; Oyler v. Laxmee

36 Disability Discrimination Verdict for Plaintiff - $599, Vetter v. State of Iowa

37 2016 Legislative Efforts

38 SF 313 HF 2165 SF 2098 Reasonable Accommodation of Pregnancy

39 Simply provide an employer shall provide reasonable accommodations for pregnancy Provides examples of reasonable accommodation Excludes from reasonable accommodation any action that would impose an undue hardship on the employer HF 2165 also gives examples of actions constituting prohibited discrimination, such as reassignment to avoid job modifications, retaliation, and requiring leave where reasonable accommodation could allow the employee to continue to work. SF 313 and HF 2165

40 Much more extensive Requires accommodating lactation/pumping Defines undue hardship in detail Lists specific prohibited actions Creates a rebuttable presumption than an accommodation does not impose an undue hardship if the employer provides a similar accommodation to another class of employees Notice requirement SF 2098

41 SSB 3071 HF 2159 Wage Gap Task Force

42 New subsection with 7 new discriminatory practices: Prohibit employees from sharing compensation information Require employees to sign a waiver agreeing not to share compensation information Retaliate against an employee for sharing compensation information Seek salary history about prospective employees from former employers Release salary history information about former employees to their prospective employer Advertise a job opening anywhere without including minimum pay rate for the position Paying a new hire less than the advertised minimum pay rate

43 Increases the employer s burden to prove bona fide factor other than protected classification for a wage disparity. Provides an affirmative defense shall not apply if the employee demonstrates that an alternative business practice exists that would serve the same business purpose without producing the wage disparity. Provides that the affirmative defense is not available if the bona fide factors cited by employer account for the entire pay differential.

44 Also Creates an Equal Pay Task Force to study: Extent of wage disparities Factors that cause the wage disparities Economic consequences of the wage disparities Actions likely to lead to the elimination and prevention of such disparities.

45 Questions?