For the first time since 2016, Equal Employment Opportunity Commissioner Victoria Lipnic addressed the annual Industry Liaison Group meeting, which was held in Wisconsin this year.
Commissioner Lipnic addressed two pressing employment law issues: pay equity and age discrimination. Specifically, Lipnic noted the looming September 30 deadline to comply with the EEO-1. Compliance requires most companies to submit payroll data dating back to 2017. Lipnic noted that such collection “is not in any way easy,” but that is “what a federal judge has ordered.” Lipnic also observed that most Millenials were just a few years away from Age Discrimination Act coverage.
On a final note, during the subsequent Q&A session, Lipnic told federal contractors they should “lead the way in recruiting for populations you traditionally have not gone to before.”
Companies may not intentionally set out to pay women less than men, but more often than not, there is a significant pay gap. Even if there is no “smoking gun” evidence of discrimination, a legal remedy may be available.
Some companies over-rely on salary history information. They believe there is nothing wrong with using a candidate’s past salary history to set a current salary level. But many women were underpaid due to their gender, whether intentionally or not, in their prior jobs. As a result, their salaries will continue to lag behind their male counterparts, and the disparity increases over time. This is why many states are now making it illegal for an employer to ask an employee about an their prior salary history.
Other companies use job history to set salary, and this calculation could adversely affect women as well. For example, blue-collar workers, like miners, generally earn more than white-collar nonprofessional workers, like clerks, secretaries, or administrative assistants. Blue-collar workers are often male, while many white-collar nonprofessionals are female.
Pay discrimination victims are generally entitled to back pay, reimbursement of legal fees, lost benefits, and other damages, including perhaps damages for emotional distress if they prevail at trial.
Age discrimination cases are sometimes harder to win today than they were in the 1990s. The Supreme Court has ruled that age must be the sole factor, as opposed to only a motivating factor, in the action taken against the employee. For example, the corporation’s decision to terminate or demote an older employee may have been based partly due to age but also based on a performance issue, even if the performance issue was not significant. Under these facts, assuming there was a real, as opposed to a fabricated performance issue, the older worker’s dismissal may not have violated the Age Discrimination Act.
For this reason, the EEOC may not pursue age discrimination claims as often as other actions. But an assertive attorney may still be willing to pursue these claims on the employee’s behalf.
Northern Star (Pogo) LLC, an Alaska-based gold mining company, agreed to pay $690,000 and provide other relief to resolve a discrimination and retaliation action.
According to the Equal Employment Opportunity Commission, the company refused to promote a woman and instead promoted other, less-qualified male candidates. When Hanna Hurst applied for the promotion and then complained, Northern Star created additional qualifications for her to complete. But the company exempted male employees from these tests. In addition to paying money, Northern Star must adhere to a long-term consent agreement that will insure equal opportunities for promotion for females.
“Gender bias continues to be a problem in today’s workplace, certainly no less in those industries traditionally dominated by men,” said EEOC Seattle Field Director Nancy Sienko. “We commend Northern Star as the new successor company for demonstrating its commitment to see such discrimination doesn’t continue under its leadership.”
Substantive sexual harassment cases can sometimes be complex, they cautioned. There are two types of sexual harassment claims in Illinois:
Quid Pro Quo: It is illegal to condition any employment-related decision on any sexual favor. This happens more often than many people believe but is often done in a subtle manner. A female employee should be careful when her boss asks if they can discuss some matter at lunch or dinner when no other employees are present.”
Hostile Environment: This occurs when there is a severe and pervasive pattern of unwelcome sexual or gender comments or acts. A single joke or off-color remark does not constitutes sexual harassment. The conduct must be frequent enough to adversely affect a reasonable person or make it difficult for the employee to perform her normal job duties.
A single-episode of a sexual assault or an extremely aggressive attempt at a sexual overture may be sufficient.
Repeated touching to the point where it is clearly not accidental may also be enough, especially when inappropriate jokes are common. The employer’s failure to investigate a complaint or take action to stop harassment by co-workers will strengthen a sexual harassment case. A failure to conduct an adequate and diligent investigations happens all too frequently, especially in mining, construction, and other male-dominated industries. Post-complaint investigations must be done immediately, and should be comprehensive, and transparent.
Statistically, the EEOC usually handles more retaliation claims than anything else. This includes retaliation for making a complaint for sexual harassment.
Retaliation occurs when an employer punishes an employee who participated in a protected activity. Protected activities include the following:
Filing a complaint or serving as a witness in an employment discrimination claim,
Lodging an informal discrimination complaint,
Resisting sexual advances or other discriminatory conduct,
Intervening to help others in these situations, and
Refusing to follow discriminatory orders.
Even if the underlying complaint of discrimination does not prove that the law was violated, an employee is still protected from retaliation as long as the complaint was made in good faith. Contact Goldman & Ehrlich to discuss your discrimination case today.
Chicago Mayoral Candidate was targeted recently over her support of anti-discrimination legislation introduced in Congress to protect members of the LGBTQ community against employment discrimination.
According to a March 19, 2019 NBC News report, a distribution of homophobic flyers across Chicago’s South Side portrayed mayoral candidate Lori Lightfoot as supporting a ‘Gay Equality Act’ in Illinois. While the front side of the flyers design looked as if it was being distributed by Lightfoot’s campaign election committee, the other side claimed, “All Contracts, Jobs and employment newly assigned exclusively to gay people!”
While there is no such thing as a ‘Gay Equality Act’, the flyer is likely in reference to a federal bill introduced by Democrats the previous week.
The Equality Act would amend existing civil rights legislation to ban discrimination in employment, housing, education, and other areas on the basis of gender or sexual orientation. Lightfoot was likely targeted as she is openly homosexual. Both she and her opponent in the mayor’s race, fellow Democrat Toni Preckwinkle, denounced the flyers, as did other community leaders.
“Targeting this particular candidate in this manner is a clear illustration as to why protections against employment discrimination are so important,” says attorney Jonathan C. Goldman of the Chicago employment law firm Goldman & Ehrlich.
There are several federal laws, including the Civil Rights Act of 1964, the Fair Housing Act, and the Equal Credit Opportunity Act. Meant to protect people against discrimination based on race, color, religion, sex, or national origin. However, the Equality Act goes a step further in specifically addressing unfair actions taken against the LGBTQ community.
According to research by the American Center for Progress, close to half of all gay people report experiencing some form of harassment or discrimination in the workplace.
Among transgender individuals, an alarming 90 percent report discrimination. “Screening applicants, withholding jobs and promotions, or engaging in other forms of discrimination and harassment against members of the LGBTQ community is against the law,” says Goldman. “While tougher protections are still needed, when it occurs employers can be held accountable.” Contact Goldman & Ehrlich today to discuss your case.
EEOC Announces Major Pay Discrimination Settlement
Multistate diesel engine manufacturer Cummins, Inc. agreed to pay $77,500 to settle a pay discrimination suit out of court. According to the Equal Employment Opportunity Commission, a Nashville worker received less than her male co-workers. Cummins officials reviewed the woman’s salary and concluded that there was a gender gap. But they refused to adjust the woman’s pay. S part of the settlement, Cummins, which also operates in Illinois, agreed to two years of court supervision.
“Employers should provide men and women in the same workplace with equal pay for equal work” because it’s not only fair, “it’s the law,” proclaimed EEOC Memphis Regional Attorney Faye Williams. “Technological and legal advances have made equal pay cases easier than ever to win,” remarked Chicago employment law attorney Jonathan Goldman. “But the EEOC still does not take on this issue very frequently.”
The Equal Opportunity Commission, or a similar state agency, usually has first crack at unequal pay and other employment discrimination cases, he explained.
First file an unequal pay claim with the EEOC before filing in court in order to fully exhaust administrative remedies. There are occasions when the EEOC will take these claims to court, but those occasions are rare. Once the EEOC concluded its investigation, it will issue a Right to Sue letter, which gives the employee 90 days to file in court. When attorneys take these cases, technology often comes into play. Until fairly recently, large companies could bury claimants in papers during discovery. There may be a smoking gun in there somewhere, but it was almost impossible to find. Now, attorneys can feed documents into high-speed scanners, enter search terms, and easily view relevant documents.
If you bring an unequal pay claim in Chicago, the law is on your side.
The Windy City recently passed an ordinance which bans salary history inquiries. That issue may seem unrelated to pay discrimination, but there’s actually a very close link. When they start their careers, many women accept lower wages than their male counterparts. The pay gap gets even larger over time. A woman’s salary may increase, but not as much as a man’s. So, in an unequal pay case, it may not be necessary to look beyond the initial interview and resume requirements. If there is anything illegal, substantial compensation may be available.
That compensation generally includes both back pay, and will require future pay adjustments to match male employees performing the same work. These lost wages are from the date of employment to the current date. A judge will award a reasonable amount of money that the claimant would have earned had she stayed at that job and earned an equal wage. Contact the lawyers at Goldman & Ehrlich to discuss your case.
The U.S. Supreme Court will hear three cases this fall concerning LGBT employment discrimination, according to aCBS Chicago report.
Each of the three cases arise under Title VII of the Civil Rights Act of 1964, a federal law. Ultimately, the Court’s ruling may affect LGBT employees’ rights. The outcome will determine whether LGBT workers can file a federal claim for sexual orientation or gender identity discrimination in federal court. In 2017, the U.S. Court of Appeals for the 7th Circuit heard a related case. In an 8-3 decision, the 7th Circuit ruled that Title VII protects LGBT employees. Chief Judge Diane Wood emphasized that sexual orientation discrimination cannot occur without unlawful discrimination on the basis of sex. However, the U.S. Supreme Court’s ruling could reverse that decision.
Chicago LGBT employees currently have protections against employment discrimination under the Illinois Human Rights Act.
Currently, the Illinois Human Rights Act applies to employers with at least 15 employees. LGBT rights advocates sought recently to repeal that requirement so that the law would apply to all Illinois employers. The Illinois Legislature even passed a bill to do so. Yet Governor Bruce Rauner vetoed it. While many LGBT employees in Chicago have rights under state law, and under City laws, their protections under federal law will depend on the Supreme Court ruling.
Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sex.
However, that federal law does not explicitly prohibit sexual orientation or gender identity discrimination. Courts like the 7th Circuit have ruled that sex discrimination includes sexual orientation discrimination. Similarly, the U.S. Equal Employment Opportunity Commission (EEOC) says that Title VII guarantees protections against LGBT discrimination at work.
Yet other courts have disagreed.
Indeed, an example appears in one of the cases that will come before the Supreme Court this fall. In one of those cases, the 11th Circuit ruled that Title VII does not prohibit discrimination against LGBT employees. The other two cases that will come before the Court found in favor of the LGBT employee who alleged discrimination. Those cases arose out of the 2nd Circuit in New York and the 6th Circuit in Cincinnati.
Goldman remarked, “the Court could determine that Title VII does not apply to sexual orientation or gender identity discrimination.” Such a decision could mean that LGBT employees have no protections against discrimination under federal law. In such a situation, LGBT employees in Chicago would only have protections against employment discrimination under state law, Cook County law, and City law. Contact Goldman & Ehrlich today to discuss your case.
Employees and employers alike in the Chicago area should know about a recent class action lawsuit filed against the University of Illinois-Urbana Champaign (UIUC).
The case,Brown v. Board of Trustees of the University of Illinois, alleges employment discrimination on the basis of race under Title VII of the Civil Rights Act of 1964, a federal law, and the Illinois Civil Rights Act of 2003, a state law. The plaintiffs in the case specifically allege that racial discrimination and harassment are part of the University of Illinois’s “standard operating procedure. The case is likely to highlight the harms of racial discrimination in employment. And also underscore the steps that employers must take in drafting and enforcing a non-discrimination policy.
In the complaint, the plaintiffs cite overt and pervasive incidents of racial discrimination and harassment on the basis of race.
For example, the complaint describes threats of racial violence. Including the appearance of nooses, KKK paraphernalia, confederate flags, racist graffiti, and swastikas. Other overt acts of racism, according to the complaint, include racial slurs. Which the plaintiffs allege other employees used against them. Moreover, the complaint also alleges that racial discrimination persisted in more subtle forms. Such as black employees subjected to disrespect from supervisors and coworkers. As well as, being subject to excessive monitoring and scrutinizing from supervisors.
The University has a written non-discrimination policy.
However, as the recent lawsuit alleges, the policy only prohibits racial harassment if it is “sufficiently severe or pervasive”. Is “objectively offensive,” and “unreasonably interferes with, denies. Or if it limits a person’s ability to participate or benefit from employment opportunities, assessment or status at the University.” Accordingly, the plaintiffs argue that the non-discrimination policy permits a hostile work environment that violates both federal and state law.
It is important to note that this lawsuit comes at a point in which Illinois legislators recently amended the Equal Pay Act of 2003. Which prohibits employers from discrimination against African American employees by paying African American employees lower wages for substantially similar work. This recent change to the law; along with the recent lawsuit against UIUC; should make clear that employment discrimination, on the basis of race, is taken very seriously in Illinois.
Just as the partial government shutdown shuttered the doors at the Equal Employment Opportunity Commission, the agency announced a $4.9 million settlement in a religious discrimination case.
According to the agency, the shipping company refused to hire persons with long hair or beards, even if their appearance had a religious reason. Furthermore, UPS delayed religious accommodation requests or denied them outright, according to court documents. The company did not admit liability and characterized the settlement as a business decision. We want “to focus our energy on our hiring and promotion process, rather than lengthy and costly court proceedings,” UPS said in a statement.
The settlement is just the latest in a series of employment discrimination claims against UPS.
The company settled a multimillion-dollar disability discrimination action in 2017, and another religious discrimination action in 2013. “Failure to make a reasonable accommodation is the most common type of religious discrimination in Illinois,” commented Chicago employment law attorney Jonathan Goldman. “But this term confuses many workers. As a result, they give in too quickly and give up too much.”
Most people assume that a phrase like reasonable accommodation means give and take, he explained. But in this context, and as far as the employee is concerned, this process is basically all taking and no giving. If the worker requests a religious accommodation, the employer must grant it unless the request would cause an undue hardship.
For example, assume David works in retail. He is a Christian and he wants Sundays off. His boss is also a Christian, but he feels that the religion does not specifically prohibit working on Sundays. Nevertheless, David’s boss offers to let him off every other Sunday. David might be tempted to take that offer.
But the “not officially recognized” bit is irrelevant. If David’s religious beliefs about Sundays are sincere, the law protects him. In fact, even if David started his own church and embraced certain beliefs, the law would still protect him. It does not matter if the belief was dogmatic or not.
Second, in the “reasonable accommodation” department, David and other workers meet their initial burden by demonstrating their religious beliefs and needs. They do not have to negotiate further unless the employer establishes an undue hardship. Assuming there are other employees who are available to work on Sunday, that defense probably does not apply. That’s true even if the other workers are not as qualified as David. A marginal loss is not the same thing as an undue hardship.
The second form of religious discrimination is decisions that are based, at least in part, on religion.
Typically, these decisions include hiring/firing and promotions/demotions. One would think that employers know the law and would not engage in this activity, but it happens often. For example, an employer could refuse to hire a woman who wears a hijab or give a woman a promotion on the condition that she begin attending church.
A few religious discrimination cases involve employee harassment. If that happens, the employer has a duty to promptly and thoroughly investigate the matter, and then take appropriate action based on the investigation’s results. A breakdown in any phase could give rise to a legal claim.
Contact us today at 312.332.6733 to schedule a free consultation.
Chinatown’s Xing Ying Employment Agency promised workers good wages and pleasant employment conditions.
But instead, according to court documents, the company “essentially acted as central a supply house for a buffet restaurant industry seeking to profit from illegal and exploitative wages and conditions of employment.”
Again according to court documents, the Agency ran advertisements in Chinese-language newspapers targeting immigrant workers. Once these individuals enrolled with the company, the promised lavish wages never appeared. Neither did the promised housing. Many Xing Ying workers lived under an 18th Street bridge. According to a media investigation, Xing Ying was part of a much wider ring of similar exploitative employment services.
These issues are widespread, as “our Civil Rights bureau and workplace rights bureau are always taking complaints,” remarked an Illinois Attorney General spokesperson.
Types of Illegal Discrimination
Like most other jurisdictions, Illinois is an at-will employment state. For the most part, employers may hire and fire employees at any time for good reason, bad reason, or no reason at all. However, even in this environment, workers have legal rights.
“Workers cannot be fired for an illegal reason, and they must be treated fairly at work,” said Chicago employment law attorney Jonathan Goldman. Fair treatment means minimum wage, no unauthorized paycheck deductions, and no illegal conduct. The types of illegal discrimination include:
Some forms of discrimination are in a grey area.
For example, the Supreme Court has yet to rule whether transgender discrimination falls into the “sexual orientation” discrimination category under federal law. However, several courts, including the 7th Circuit Court of Appeals, have found that “gender stereotyping”, expecting a female or male to conform to their gender identities and expected gender character, are illegal. Illinois state law also prohibits transgender discrimination.
To establish an employment discrimination case, the victim must present enough evidence to suggest that the adverse action against the employee was based on discrimination.
Replacing an older employee with a younger employee is often sufficient. The employer must then provide a nondiscriminatory reason for the adverse action. That burden is often easy to meet. Most cases are then fought on the issue of whether the employer’s claimed reason was just a pretext or an excuse for discrimination.
Damages in most employment law cases include both monetary and injunctive relief.
Back wages are often the biggest category of monetary damages. Usually, the parties do not resolve their dispute for many months. Other types of economic damages may be available as well, such as lost health insurance benefits. Additional noneconomic damages may be available as well, such as compensatory damages for the stress and anxiety that a victim of discrimination may suffer.
Injunctive relief is available as well. Sometimes, that could mean reinstatement. Other injunctive relief includes antidiscrimination programs on the job, so other employees are not victimized in the same way.
Many EEOC cases involve sexual harassment claims. The EEOC is anxious to resolve these cases, and that attitude sometimes works in the defendant’s favor.
On June 25, 2017, the Equal Employment Opportunity Commission announced that Anchor Staffing would pay $30,000 to settle sexual harassment and retaliation allegations. Court documents state that the temporary agency refused to give Ana Magdana more work after she complained about sexual harassment. In addition to paying money, Anchor Staffing must abide by a two-year consent decree.
About a month earlier, the EEOC announced a similar settlement with a Downers Grove Burger King franchise. Heartland Food LLC agreed to pay $55,000 and furnish similar non-monetary relief to resolve sexual harassment claims. The agency said little about that case, besides the fact that a female employee complained about a male manager.
“These two cases are significant for two reasons,” offered Chicago employment attorney Jonathan Goldman. “First, these settlements are not big dollar amounts for big companies. But for regional businesses and small franchisees, $50,000 may be almost a year’s profits. Second, the government is very aggressive in sexual harassment cases, largely because they are easy to prove.”
The Anchor Staffing settlement did not even involve sexual harassment, Mr. Goldman noted. Instead, the EEOC pursued a retaliation claim. As a result, the agency does not need to prove sexual harassment, age discrimination, or anything else. It simply must establish that the defendant took some action against the employee because of the complaint.
Generally, the EEOC need only establish a temporal relationship. If the complaint was on June 1 and the action was on June 15, an employer will be hard-pressed to defeat a retaliation claim. So, we take a very proactive approach and try to resolve these cases as quickly and cheaply as possible.
Details were so sketchy with regard to the Burger King settlement because the employer probably included a confidentiality clause in the settlement, Mr. Goldman speculated. In many cases, the EEOC insists on a slightly larger monetary settlement before it agrees to such a clause. But in many cases, such language is worth a little extra money.
A confidentiality clause makes the EEOC’s evidence appear weak. The bellicose quote in the press release, which is something like “that company got what it deserved,” then seems rather empty. Furthermore, it is easier for the defendant to characterize the settlement as a business decision. That’s normally the case, because it would cost a lot more than $30,000 or $50,000 to litigate such a claim. Furthermore, if anyone presses the company for details, the spokesperson simply cites the confidentiality clause and drops the matter. Contact us today at 312.332.6733 to discuss your case.
OUR OWN ARTHUR EHRLICH, WILL BE GIVING A LECTURE ON EMPLOYMENT LAW AT THE EVANSTON PUBLIC LIBRARY, 1703 ORRINGTON AVE, EVANSTON, IL ON THURSDAY, APRIL 12, 2018, FROM 7:00 – 8:00 P.M.. MR. EHRLICH HAS OVER 30 YEARS OF EXPERIENCE LITIGATING EMPLOYMENT DISCRIMINATION CASES
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