Tuesday, November 12, 2024
- EEOC: 216-page “Enforcement Guidance on Harassment in the Workplace,” effective April 29, 2024, replaces the EEOC’s five prior harassment guidance documents issued between 1987 and 1999 and has descriptions and examples addressing: the different protected bases from harassment, including race, color, national origin, religion, sex (including sexualized conduct, pregnancy, and sexual orientation/gender identity), age, disability, genetic information, retaliation, and cross-bases issues; various ways to meet the requirement that harassment be caused by plaintiff’s protected class; the differences between disparate treatment sexual harassment (also known as “quid pro quo”) and hostile work environment claims, making clear that a “hostile work environment claim also can include conduct that is independently actionable as disparate treatment,” although a later section references an EEOC Compliance Manual provision stating that certain damages, such as lost wages, for disparate treatment occurring outside the statute of limitations are not available even if included in a hostile work environment claim; conduct that meets the requirements of being both subjectively and objectively hostile, including actionable single incidents such as sexual assault, physical violence or threat of physical violence, displaying hate symbols such as a swastika, use of denigrating animal imagery, threats to deny job benefits for rejecting sexual advances, and use of the “n-word”; unlawful conduct that is not directed at the complainant, such as offensive comments in complainant’s presence or the complainant being forced to participate in the harassment of another; unlawful conduct occurring outside of the workplace, such as at holiday parties, employer-provided housing, or sent from work email; when social media posts outside of work may be unlawful, such as when complainant becomes aware of coworkers discussing offensive posts about complainant at work; the various standards for employer liability for harassment, including automatic liability for harassment by a “proxy or alter ego of the employer” such as owners and partners, vicarious liability in the case of harassment that includes tangible employment actions, vicarious liability for harassment by supervisors if the employer cannot establish the Faragher-Ellerth affirmative defense, and negligence for harassment by coworkers; systemic harassment, meaning affecting multiple complainants; pattern and practice harassment, meaning the employer’s “standard operating procedure”
- First Circuit: Rejecting its earlier standard for retaliatory harassment under Title VII articulated in Noviello v. City of Boston, the court noted that materially adverse actions that “could well dissuade a reasonable worker from making or supporting a charge of discrimination” are prohibited retaliation even if they do not “alter the conditions of the victim’s employment”
- First Circuit: The court held that otherwise time-barred discrete acts of retaliation are not rendered timely by including them in a hostile work environment claim that continues into the limitations period
- First Circuit: In vacating 12(b)(6) dismissal of Title VII religious accommodation claim brought by hospital worker who was fired for refusing COVID-19 vaccination, the court held, in part, that a religious practice or belief does not need to be accepted by others within the same religion for it to be protected, and the hospital’s undue hardship defense of safety and requiring in-person work required further factual development
- First Circuit: While the majority opinion affirmed it, dissenting judge would have vacated summary judgment for employer on Title VII coworker sexual harassment claim on the ground that an employer’s inadequate investigation may subject it to liability even if the poor investigation did not cause subsequent harassment
- First Circuit: With respect to the above case involving Judge Thompson’s dissent, in denying appellant’s petition for rehearing en banc, the court stated that it was not a “case in which the allegedly harassing employee was proximate to the plaintiff during or following the investigation . . . such that the failure to investigate harassment that was not previously known to the employer could cause a hostile work environment going forward,” and that the majority in the three-judge panel decision did not hold that “reharassment of a sexual assault victim is a prerequisite for a finding of co-worker sexual harassment, even where the employer’s investigation into the allegations is negligent”
- First Circuit: In affirming jury verdict for employer on Equal Pay Act claim, the court, in part, held that the trial court did not err in refusing to disqualify or question a juror based on his “liking” a conservative website on Facebook and (according to employee’s counsel) demonstrating hostility towards employee and her counsel during trial
- US District Court ME: Summary judgment granted for plaintiffs on Equal Protection claim challenging military healthcare program exclusion for surgical “sex gender changes,” where intermediate scrutiny applied because exclusion facially classifies based on transgender status (and therefore sex) and defendants offered no governmental interests to justify the exclusion
- US District Court ME: Former city employee’s Title VII and MHRA claim dismissed because it would not be sex discrimination even if plaintiff were fired because his former boss wanted to replace him with a woman with whom he sought a close, romantic relationship; and procedural due process claim dismissed because Maine Rule of Civil Procedure 80B provides an adequate post-deprivation remedy even if plaintiff were fired without explanation, advance notice, or a pre-termination hearing
- US District Court ME: 12(b)(6) motion to dismiss Title VII and MHRA sex discrimination claim denied where plaintiff plausibly alleged she was fired based on the sex stereotype that women will “stand by your man” and employer believed she would abandon her employment after her male partner was fired
- US District Court ME: In denying employer’s motion for summary judgment on former employee’s “failure to recall” claim (apparently the first in Maine or the First Circuit), the court rejected employer’s argument that it did not discriminate against former employee on the basis of pregnancy in by failing to recall her after layoff because she was ineligible for recall, it did not recall any other laid off workers in plaintiff’s job category, and that it hired from outside
- US District Court ME: The court denied request for a preliminary injunction barring Maine Human Rights Act enforcement against religious entities and certain individuals based on Free Exercise of Religion, Free Speech, and Establishment Clause grounds
- US District Court ME: The court denied hospital’s and chief of surgery’s motion to dismiss former surgeon’s breach of contract and intentional infliction of emotional distress claims
- Law Court: In reversing summary judgment for employer on Title VII and § 1981 race associational employment discrimination claim, the court found sufficient genuine issues of material fact that employer terminated plaintiff because her husband was Black and Nigerian
- EEOC: “High Tech, Low Inclusion: Diversity in the High Tech Workforce and Sector from 2014 – 2022″ study includes that women fill just 22.6% of the high tech workforce in all industries and only 19.4% of the high tech workforce in the high tech sector
- MHRC: 2024 Annual Report includes that 20% of the 154 Investigators’ Reports issued in the past fiscal year resulted in reasonable grounds findings
