EEOC Signals Intent to Process and Litigate Claims of Sexual Orientation Discrimination Under Title VII


Signaling its intent to pursue its viewpoint that Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sexual orientation (including transgender identity), the Equal Employment Opportunity Commission has taken several recent steps to advance its theory that Title VII’s statutory term “sex” has broad application within the meaning of the federal employment discrimination law. According to the EEOC, Title VII’s general prohibition against discrimination on the basis of sex encompasses more specific prohibitions on certain acts of sexual orientation discrimination under a sex stereotyping theory and prohibits employers from taking sex or gender, as well as perceptions regarding gender roles, into consideration when making employment decisions. Continue reading this entry

The Line Out of This Place Is as Long as the River


This month, the U.S. Supreme Court heard argument in a case that would seem to raise easy enough questions: When does an employee’s workday begin and end? What activities count as “work”? However, these questions have given way to tortured analysis and fairly arbitrary results.

Over the years, courts have ruled pre-shift and post-shift activities are compensable if they are “integral and indispensable” to the principal activity of the employment, whereas activities falling outside this definition are considered “preliminary” and “postliminary” and therefore not compensable. Of course, these definitions raise as many questions as they answer. What is “integral and indispensable”? What is the “principal activity of employment”? Not surprisingly, given this nebulous standard, court holdings vary widely even when fact patterns are very similar. Continue reading this entry

Contemporary Clothing’s “Look” Collides With Title VII


There is more than a little bit of irony when a clothing company with a target market of teens and young adults has a fashion dilemma. However, a national retailer has just such a dilemma arising from a potential religious accommodation dispute that has just taken a front and center position in the national legal landscape.

All the way back in 2008, a young woman applied to the company to be a “model” (the employer’s term for salesperson) at its Tulsa, Oklahoma store. She arrived at her interview appropriately attired but, in keeping with her Muslim upbringing, wore a traditional hijab. During her interview, the candidate did not mention her religion or that she wore the hijab for religious purposes. Likewise, the interviewer did not mention the hijab or ask about her religion. The company did not hire the job seeker because she lacked the “Look” as set forth in its “Look Policy” which did not include a hijab. Continue reading this entry

When Xs and Os Go Awry: Recent College Coach Lawsuits Emphasize the Importance of Good Contract Language Even for “Intramural” Employers


The recent flurry of scandals in professional sports, particularly those from the NFL that dominated headlines in recent weeks, are not without their counterparts in the college ranks. Indeed, in the past year there have been an increasing number of controversies involving college coaches, which in turn have led to terminations and wrongful termination lawsuits. These lawsuits have exposed some poorly drafted “for cause” termination and morals clauses that have forced the schools to litigate and, at times, left them on the hook for some or all of the remaining contract.

Over the past few years, college coaches, particularly the successful ones, have demanded longer and more lucrative contracts. As the highest paid college football coach, Alabama’s Nick Saban will make more than $6.9 million per year for the next eight years. Issues arise when a successful program struggles to win (the seat of Brady Hoke, head coach of Michigan’s football team, seems to be the hottest right now…) or, as is the case of recent lawsuits, incidents occur that are unrelated to the team’s success which leads to the employer (university or college) to terminate the contract. Continue reading this entry

Hurry Up and Wait: Court Decision Gives No Substantive Guidance on the EEOC’s Challenges to Standard Separation Agreement Provisions


As we noted last month, a federal district court in Illinois announced it was dismissing a controversial lawsuit brought by the EEOC against a nationwide pharmacy chain challenging that employer’s separation agreement containing standard provisions used by many employers. However, at that time, the court had not yet issued its written decision explaining the dismissal. Employers had hoped the court would provide guidance in its written ruling as to the proper content of separation agreements, in light of the EEOC’s attempt to persuade the courts to find that such separation agreements violate Title VII and potentially other federal anti-discrimination laws. Continue reading this entry