Fifty Shades of Gray: Employment Discrimination is Not Black and White

Discrimination is one of the most significant areas of legal exposure for employers.  Employers face potential liability for discrimination claims throughout every stage of the employment relationship, from hiring to firing, and everything in between.  Avoiding employment discrimination liability requires sensitivity to a wide variety of legally protected characteristics and employment discrimination claims are one of the most commonly litigated areas of employment law.  Employment discrimination is not black and white, however, and employers must understand the legal landscape to effectively respond to employee complaints and minimize legal risks.

The oldest and most highly litigated of employment discrimination laws is Title VII of the Civil Rights Act of 1964.  This federal law is the principal federal statute prohibiting employment discrimination.  It prohibits discrimination, as well as harassment and retaliation, on the grounds of race, color, religion, sex and national origin.  Many other statutes prohibiting discrimination are based on the same legal principles as Title VII and often follow Title VII for interpretive guidance.  Most employers that employ fifteen or more employees are covered under Title VII.  The Florida Civil Rights Act also covers employers with fifteen or more employees and includes the same protected characteristics as Title VII, but adds age, handicap, and marital status as forms of prohibited discrimination.  There are additional federal laws that prohibit employment discrimination on the basis of age, veteran status, genetic information, and citizenship.  Furthermore, many local governments, including Pinellas County and Hillsborough County, have ordinances that cover employers with five or more employees for employment discrimination claims.

It is interesting to note that Title VII protects job applicants as well as both current and former employees.  Although it does not cover independent contractors, many cases have resulted in employment discrimination claims where independent contractors were improperly classified.  In certain other situations, secondary employers have been deemed joint employers of another employer’s employee if they exercise sufficient control over the individual employee.  This often arises in the case of temporary employees hired through staffing agencies, leased employees, and professional employer organizations hired to administer human resources functions, such as payroll processing and benefits.  In addition to disciplinary personnel actions, Title VII prohibits a broad range of discriminatory conduct, including failure to hire, failure to promote, discrimination in compensation and other terms and conditions of employment, failure to prevent or eliminate harassment and, in certain settings, failure to provide reasonable accommodations.

The law in this area is ever evolving and the Equal Employment Opportunity Commission (EEOC) and the courts have issued decisions and published opinions for the past fifty years that have created and continue to create many nuances in potential discrimination claims.  For example, although sexual orientation is not expressly included as a form of discrimination under Title VII, the EEOC has ruled that discrimination based on sexual orientation constitutes sex discrimination under Title VII, rejecting a commonly made argument that because Congress has not passed legislation expressly prohibiting sexual orientation discrimination, it must have intended to exclude sexual orientation from Title VII. The EEOC has additionally opined that Title VII includes gender identity, change of sex and transgender status as a form of sex discrimination and that transgender employees may seek redress for employment discrimination.  Moreover, while the Pregnancy Discrimination Act includes express prohibitions against pregnancy discrimination, employers are often surprised to learn that these prohibitions not only protect workers from discrimination due to current pregnancies, but include past pregnancies and even potential pregnancies, based upon an employee’s intention or potential to become pregnant. The Americans with Disabilities Act further extends protections to women with pregnancy related disabilities and, in some cases, requires reasonable accommodations for pregnancy in the workplace.

In the area of religious discrimination, most employers are required by federal law to make exceptions to their usual rules or preferences to permit applicants and employees to observe religious dress and grooming practices.  In one recent case, an employer was held liable for religious discrimination when it acted with the motive of avoiding an accommodation even though the employer had no more than an unsubstantiated suspicion that an accommodation might be needed and the job applicant did not expressly state her religious preference or that she wore her head scarf as a religious practice.  This case overruled prior decisions that held that an employee must actually inform the employer of his or her religious belief in order to trigger an employer’s duty to accommodate.

Harassment is another form of discrimination under Title VII that may result in an employment related claim.  In another recent case, an anonymous note was left for an employee in her work mailbox containing numerous racist slurs and threatening deadly violence based on her race.  The court held that the conduct was sufficiently severe to create a hostile work environment and that the employer’s failure to properly address and investigate the anonymous note was an adequate basis to hold the employer liable.  The court further found that the employer’s response was not prompt or reasonably calculated to end the harassment, but was reluctant and lukewarm.  While the court did not specify exactly what the employer should have done to address the situation, the court emphasized that although the legal requirement to take measures reasonably calculated to end harassment does not require employers to respond perfectly or with best practices, there are multiple ways for an employer to reasonably respond.

This article is not an exhaustive reporting on all the recent legal decisions in the field of employment discrimination, but it is an attempt to illustrate some of the less obvious areas of exposure.  Employers sued for discrimination violations often face large financial losses and it is quite common for employers to pay thousands of dollars in legal fees defending against meritless claims and thousands more settling or litigating well-founded claims.  Discrimination does not need to be blatant or intentional to be the basis of a successful lawsuit.  Employers are usually aware that overt discrimination is prohibited, but they must also understand the more subtle forms of discrimination that fall within the many shades of gray that can present just as great a legal risk.

Joan M. Vecchioli is a partner in the Clearwater office and is Board Certified in Labor and Employment Law by the Florida Bar.  She was named Best Lawyers® 2016 Litigation – Labor and Employment “Lawyer of the Year” for the Clearwater/St. Petersburg metro area.