Race/Sex/Religion Discrimination  Articles

Supreme Court Makes it Harder to Prove Supervisory Harassment

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           The U.S. Supreme Court recently held that a “supervisor” is someone with the power to take “tangible employment actions” against an employee.  Such actions include the right to hire, fire, promote, demote, reassign to a position with significantly different responsibilities, discipline, or significantly change benefits.  Vance v. Ball State University.  In doing so, it rejected the EEOC’s broader definition, which treated any person with the authority to direct another’s tasks, as a supervisor.  The case is important because under the well known Faragher/Ellerth decisions employers are vicariously liable for supervisory harassment, unless they prove they exercised reasonable care to prevent and correct the harassing behavior, and the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities provided by the employer.  Conversely, if the harassment is conducted by a non-supervisor, including a co-worker, the plaintiff must prove the employer was negligent by failing to take appropriate corrective action when it knew or reasonably should have known the harassing conduct was taking place.  The Supreme Court’s decision now firmly places the burden on the employee in harassment cases to prove employer negligence, unless she can prove the harasser meets the new definition of “supervisor.”

Listing All Reasons for Discharge Can Help Employers Win Discrimination Cases

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     When communicating the reasons for a discharge, employers sometimes believe less is more.  While “at will” employees can be terminated for any reason, or none at all, and are not legally entitled to a reason, it often makes sense to provide the specific rationale for the separation.  Not only may it convince the employee that the decision is legitimate and business related, but in the event legal action against the employer is taken, early and consistent communication of the reason adds credibility in the defense of the claim.  Moreover, where more than one reason for the decision exists, each reason should be articulated.  Doing so provides multiple opportunities to overcome claims of discrimination, and as the Appellate Court of Connecticut recently ruled, only one of the proffered reasons need be legitimate to overcome a discrimination claim.  Callender v. Reflexite Corp.

Connecticut Recognizes Sexual Orientation Hostile Environment Claims

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            The Connecticut Supreme Court ruled that the Connecticut Fair Employment Practices Act covers hostile environment claims based on sexual orientation. Patino v. Birken Manufacturing Co., SC 18441 (May 15, 2012). This is an important development for gay and lesbian employees, as federal law does not prohibit discrimination based on sexual orientation.

EEOC Issues Guidance on Use of Arrest and Conviction Records

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            On April 25, 2012, the Equal Employment Opportunity Commission (EEOC) issued its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. The EEOC also provided a Q+A document that provides a good overview of the more lengthy Guidance.

EEOC Rules Transgender Claims Covered under Title VII

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            The Equal Employment Opportunity Commission (EEOC) recently ruled that claims of transgender discrimination are covered under Title VII’s gender discrimination provisions. Macy v. Holder, EEOC Appeal No. 0120120821 (April 20, 2012). This brings federal anti-discrimination law in line with Connecticut’s Fair Employment Practices Act (CFEPA), which already prohibits discrimination on the basis of gender identity or expression.


 

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