Eric Sanders, Esq., of ¸£Àû¼§. discusses who is a ‘supervisor’ under Title VII?

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Eric Sanders, Esq., of ¸£Àû¼§. discusses how to file an employment discrimination complaint

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The main purpose of Title VII of the Civil Rights Act of 1964 was to eliminate unlawful discrimination and retaliation in the workplace. The United States Equal Employment Opportunity Commission () was given powers to enforce the laws that make it “illegal to fire, demote, harass, or otherwise “retaliate� against people (applicants or employees) because they filed a charge of discrimination.� It further states that is also illegal for an employer or covered entity to do the same because they complained about ‘discrimination on the job, or because they participated in an employment discrimination proceeding (such as an investigation or lawsuit).� A covered entity is an employer with 15 or more employees who are protected under the Title VII of the Civil Rights Act and American with Disabilities Act.

With respect to retaliation, if an employee files a complaint against an employer about workplace harassment or discrimination either to an internal body or an external body such as the EEOC, federal law “forbids retaliation when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.� The law also protects individuals who cooperate in an EEOC investigation or serve as a witness to an EEOC investigation or litigation according to a Supreme Court decision.

However, The Supreme Court of the United States in University of Texas Southwestern Medical Center v. Nassar recently revisited the issue of workplace retaliation and discrimination after a writ of certiorari (a document which a losing party files with the Supreme Court it to review the decision of a lower court) was presented before the Court. Specifically at issue, does Title VII require a plaintiff alleging retaliation to show that retaliation was the only reason for a negative employment action? In this case, the respondent, Dr. Naiel Nasser, man of Middle Eastern descent, was a faculty member of the University of Texas Southwestern Medical Center (UTSW). The doctor in charge of the clinic, Nasser’s supervisor, Dr. Beth Levine began to question the respondent’s work practices and made offensive comments about Dr. Nasser’s ethnic background to another employee. Meanwhile, during this same he sought a promotion and obtained the promotion, however, he was still under Dr. Levine’s supervision and sought a position where he would not be.

He then sought employment at a clinic and was offered a position but would have to resign from UTSW. While waiting for the position start date he wrote his resignation letter to the University of Texas Southwestern Medical Center citing the primary reason for leaving was “the continual harassment and discrimination� by Dr. Levine. He further stated that she threatened him with potential job and salary loss and her treatment of him stems from her “religious, racial and cultural bias against Arabs and Muslims that has resulted in a hostile work environment.�
The University of Texas Southwestern Medical Center through an agent of the employer, Dr. Gregory Fitz, took issue with the wording of Dr. Nasser’s resignation letter in regards to Dr. Levine and actively sought to block the respondent from obtaining employment at the clinic. After heavy opposition from UTSW faculty the clinic withdrew their offer. He filed a lawsuit submitting that UTSW constructively discharged and retaliated against him in violation of Title VII of the Civil Rights Act of 1964.

Simply put, the respondent argued that a workplace retaliation claim alone would trigger Title VII protection while UTSW held that retaliation would be in addition to a claim based upon discrimination with race, sex, and religion.

The Supreme Court of the United States decided there is separation between retaliation claims from class based discrimination claims and that retaliation claims are to be held to a stricter standard of proof which to the Court made sense given the “ever increasing frequency� retaliation claims are being filed. Thus based on the Supreme Court decision, an employee who believes that an employer has retaliated them against must show that retaliation was not the only factor in any adverse action taken by the employer.

It is a big victory for employers, which hopefully doesn’t discourage those individuals who believe that their rights have been violated or retaliated against in the workplace; this decision just made it more challenging to prove.

If you believe that, you are the victim of retaliation contact ¸£Àû¼§. in New York. We will review your claim thoroughly, providing you with an outline of possible actions you may wish to take. We are ready to be your voice for justice.

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The Employment Non-Discrimination Act (ENDA) is a bill pending before Congress that would prohibit discrimination in hiring and employment on the basis of sexual orientation or gender identity by civilian, nonreligious employers with at least 15 employees.  Religious organizations are provided an exception from this protection, similar to that found in Title VII of the Civil Rights Act of 1964.  Non-profit membership-only clubs, except labor unions, are also exempt.  ENDA has been introduced to every Congress except the 109^th since 1994 without passage.

ENDA defines gender identity as “gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birthâ€�.  Further, sexual orientation is defined under ENDA to include homosexuality, heterosexuality and bisexuality.

In a survey of transgender and gender non-conforming people conducted by the National Gay and Lesbian Task Force found 90 percent of respondents experienced harassment, mistreatment, or discrimination on the job or took actions like hiding who they are to avoid it.  In comparison, a review of studies conducted by the Williams Institute in 2007 found that transgender people experienced employment discrimination at a rate 15 to 57 percent.
Generally, such cases of employment discrimination based on gender identity are rarely if ever reported to the United States Equal Employment Opportunity Commission (EEOC).  However, one such reported case may have widespread ramifications.

In , the complainant, a transgender woman, was employed as a police detective in Phoenix, Arizona. In December 2010, she decided to relocate to San Francisco for family reasons.  At the time she originally filed her Charge of Discrimination, she had not made the transition to being a female.

Complainant’s supervisor in Phoenix told her that there was an opening with the United States Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) at its Walnut Creek crime laboratory for which she was qualified.  She is trained and certified as a National Integrated Ballistic Information Network (NIBIN) operator and a BrassTrax Ballistic investigator.  On March 29, 2011, she informed Aspen DC who was performing the background check that she was transitioning from male to female and she requested that Aspen inform the Director of the Walnut Creek laboratory of this change.  On April 3, 2011, Aspen informed her that the ATF was informed of her change in name and gender.  On April 8, 2011, she received an email from Aspen’s Director of Operations stating that, due to federal budgetary reductions, the position at Walnut Creek was no longer available.

On June 13, 2011, she filed a Charge of Discrimination with the EEOC Agency and checked off ‘sex’ and the box “female,â€� then typed in “gender identityâ€� and “sex Stereotypingâ€� as the basis for her complaint.  On October 26, 2011, the EEOC Agency sent a Letter of Acceptance but indicated that “since claims of discrimination on the basis of gender identity stereotyping cannot be adjudicated before the EEOC Agency, your claims will be processed according to the Department of Justice policy.â€�  The letter provided that if she did not agree with how the EEOC Agency handled her claims, she should contact the EEOC within 15 days.  On November 8, 2011, she disagreed through her attorney with the handling of her claims by the EEOC Agency.  On December 6, 2011, she appealed the EEOC Agency’s handling of her claims to the EEOC’S Office of Field Operations the appeal was then assigned to the Commission.

The Commission found that the EEOC Agency mistakenly separated her complaints of discrimination: one described as discrimination based on “sexâ€� which the EEOC Agency accepted for processing under Title VII and the others that were alternatively described by her as “sex stereotyping,â€� “gender transition/change of sex’â€� and “gender identity.â€�  Each of the formulations of her claims of discrimination are “based on sex,â€� a claim cognizable under Title VII.

Despite these legislative initiatives discrimination in hiring and employment on the basis of sexual orientation or gender identity problems still persist.  Remember, although under Title VII claims of sexual orientation or gender identity are not cognizable you can still assert cognizable claims for “sexâ€� discrimination.  To file a “sexâ€� discrimination complaint with the , please call 800-669-4000.

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The Don’t Ask Don’t Tell Repeal Act of 2010 (Repeal Act) was enacted to repeal the former Department of Defense Don’t Ask Don’t Tell Policy (DADT) concerning the service of homosexuals in the Armed Forces.

On October 1, 1993, President William J. Clinton signed the DADT, which theoretically lifted a ban on homosexual service in the armed forces that had been instituted during World War II, though in effect it continued as a statutory ban.  Under the former DADT, gays, lesbians and bisexuals technically were not allowed to serve in the armed forces.  In order to serve their country, such individuals had to hide their true identity and sexual orientation.  If their true identity and sexual orientation was revealed or was later known to the Department of Defense, they would be summarily discharged from the military.  The Repeal Act was intended to end this separate but, unequal practice of keeping the true identity and sexual orientation of gays, lesbians and bisexuals secret.  The Repeal Act gives gays, lesbians and bisexuals the same rights to openly disclose their true identities and sexual orientation as their heterosexual colleagues while serving in the military.

History of the DADT

• In 1950, President Harry S. Truman signs the Uniform Code of Military Justice, which established discharge protocols for homosexual service members
• In 1982, President Ronald Regan further enhanced President Truman’s ideals that “homosexuality is incompatible with military serviceâ€� therefore, people who engaged in homosexual acts or stated that they were homosexual or bisexual will be discharged
• In 1992, during the presidential campaign, then candidate William J. Clinton promised to lift the ban if he is elected President of the United States
• In December 1993, President William J. Clinton issues a defense directive that military applicants should not be asked about their sexual orientation, later known as DADT
• In June 1994, former Colonel Margarethe “Gretheâ€� Cammermeyer was reinstated to the Washington National Guard after a federal court ruled that her dishonorable discharge and the ban on gays and lesbians serving in the military were unconstitutional
• In 2003, former President William J. Clinton called for an end to DADT
• In 2008, during the presidential campaign, then candidate Barack H. Obama promised a full repeal of DADT if he is elected President of the United States
• On December 18, 2010, the Senate voted to repeal DADT

On December 22, 2010, President Barack H. Obama signed the Repeal Act into law, which effectively ended DADT on September 20, 2011.  At the time of the signing, President Obama made the following observations and comments: “We are not a nation that says, ‘Don’t ask, don’t tell’.  We are a nation that says, Out of many, we are one.  We are a nation that welcomes the service of every patriot.  We are a nation that believes all men and women are created equal.  Those are the ideals that generations have fought for.  Those are the ideals that we uphold today, and now it is my honor to sign this bill into law.â€�
In is important to note that the Repeal Act did not change the language of Article 125 of the Uniform Code of Military Justice which bans sodomy by service members.

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Over the past ten years, there were several legislative initiatives enacted in the State of New York prohibiting various forms of discrimination.  These legislative initiatives were designed to fill in the gaps not covered under the Civil Rights Act of 1964 aka Title VII that prohibits discrimination on the basis of race, sex, color, religion and national origin.

The New York’s Sexual Orientation Non-Discrimination Act (SONDA) was enacted in Late 2002, effective on January 16, 2003.  SONDA was enacted “to prohibit discrimination on the basis of actual or perceived sexual orientation in employment, housing, public accommodations, education, credit, and the exercise of civil rights.â€�  The term ‘sexual orientation’ is defined under SONDA to include heterosexuality, homosexuality, bisexuality and asexuality.

On December 16, 2009, the Governor of the State of New York signed Executive Order No. 33 which “prohibits discrimination in State employment on the basis of gender identityâ€�.  The said Order defines gender identity as “having or being perceived as having a gender identity, self-image, appearance, behavior or expression whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the sex assigned to that person at birthâ€�.

On May 20, 2009, the New York State Assembly passed Assembly Bill No.: A.5710 aka the Gender Expression and Non-Discrimination Act (GENDA).  GENDA was introduced to fill in the gaps currently not covered under SONDA.  When SONDA was enacted, the legislators failed to include protections against discrimination based upon gender identity and expression.  GENDA extends the protections of SONDA prohibiting discrimination on the basis of gender identity and expression.  Thus far, Senate Bill No.: S.2406 remains in legislative committee; therefore, GENDA has not been enacted.  However, such protections under GENDA are covered under Executive Order No.: 33.

On June 24, 2011, the Marriage Equality Act (MEA) was enacted, effective July 24, 2011, which provides legal status to same sex marriages and allows such marriages to be performed in the State of New York.  Further, the MEA entitles same sex marriages to the same protections as heterosexual married couples: state tax benefits; insurance benefits; healthcare and family leave; inheritance, property ownership and transfer rights; parental rights; workers compensation and wrongful death claims; cemetery plots; spousal privilege and family law.

Despite these legislative initiatives discrimination problems persist.  Remember, laws enforced under the New York State Human Rights Law (NYSHRL) may be adjudicated administratively at the New York State Division of Human Rights (NYSDHR).  The NYSHRL may also be enforced by filing a lawsuit in federal or state court.  The time limit for filing an administrative charge with the NYSDHR is one year from the date of discriminatory act.  If you choose to enforce the NYSHRL by filing a lawsuit in federal or state court, you must do so within three years from the date of the discriminatory act.

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In addition to the laws that are enacted and are applicable throughout the State of New York, the City of New York has been very progressive enacting several expansive anti-discrimination laws.  In many respects, the New York City Human Rights Law (NYCHRL) and the New York State Human Rights Law (NYSHRL) are very similar in structure, legislative intent and application.  Laws enforced under the NYSHRL may be adjudicated administratively at the New York State Division of Human Rights (NYSDHR).  The NYSHRL may also be enforced by filing a lawsuit in federal or state court.  Laws enforced under the NYCHRL may be adjudicated administratively at the New York City Commission on Human Rights (NYCCHR).  The NYCHRL may also be enforced by filing a lawsuit in federal or state court.

The NYCHRL prohibits discrimination in employment, housing and public accommodation on the basis of race, color, sex, religion, national origin, marital status, citizenship status, gender, gender identity, sexual orientation, disability, etc.  The NYCHRL also prohibits discrimination in employment on the basis of arrest or conviction record.  The NYCHRL prohibits retaliation.  Recently, through the New York City Local Civil Rights Restoration Act of 2005, the NYCHRL was enacted to further enhanced and broadened  protections relative to both the federal laws and the NYSHRL counterparts.

In Gina Williams v. New York City Housing Authority, et al., 61 AD3d 62 January 27, 2009.  The Court held that, the Restoration Act notified courts that (a) they had to be aware that some provisions of the NYCHRL were textually distinct from its state and federal counterparts, (b) all provisions of the NYCHRL required independent construction to accomplish the law’s uniquely broad purposes, ^[and (c) cases that had failed to respect these differences were being legislatively overruled. In short, the text and legislative history represent a desire that the NYCHRL “meld the broadest vision of social justice with the strongest law enforcement deterrent.â€�  The Court then affirmed the lower Court’s dismissal because the Pro See plaintiff did not raise the misapplication of the law during her appeal.

In Howard Hoffman v. Parade Publishing, et al., 2010 NY Slip Op 05706 decided July 1, 2010, the court held that the protections of the NYCHRL would be available to an employee that resides in the City of New York, even if the employer is located outside of the City of New York if, its’ decision had an “impact� within the City of New York.

In Daniel M. Maffei v. Kolaeton Industry, Inc. et al., the court held that the NYCHRL applied to prohibited discrimination against transgendered individuals.
To file a discrimination complaint with the New York City Commission on Human Rights, please call 311 if you are located within the City of New York or 212-306-7450

CCHR Community Service Centers

Manhattan
40 Rector Street, 10^th Floor
New York, N.Y. 10006
212-306-5070
Brooklyn
275 Livingston Street, 2^nd Floor
Brooklyn, N.Y. 11217
718-722-3130
Bronx
1932 Arthur Avenue, Room 203A
Bronx, N.Y. 10457
718-579-6900
Queens
153-01 Jamaica Avenue, Room 203
Jamaica, N.Y. 11432
718-657-2465
Staten Island
60 Bay Street, 7^th Floor
Staten Island, N.Y. 10301
718-390-8506

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Under Federal, State and some local laws, it is illegal to discriminate against an individual for their:
• Ethnicity
• Skin color, or related facial features
• Country of origin
• Age
• Sex
• Religious beliefs
• Political alignment
• Arrest and conviction record

What constitutes discrimination?

An act constitutes discrimination if you are subjected to treatment that is different from that way others are treated. The differentiation must be in a negative or adverse manner to be considered discrimination; if, due to your race, religion, or status, you are subjected to extra special service, or some other positive act, although you may have been treated differently, the act does not constitute discrimination. Examples of discrimination include:
• Being refused service at a restaurant due to your skin color
• Not being hired for a job due because of your religious beliefs
• Other employees are promoted over you, despite your being more qualified due to your race
• Being refused entrance into an establishment due to your country of origin
• Having to resign from your employment, due to unwarranted sexual gestures and advances towards you
• Being fired from your job after your employer learns that you have different political views
• Being fired from your job due to your sexual orientation
• Not receiving service from an employee or business with anti-war views, upon their learning of your status as a veteran
• Being turned down for a job, despite being qualified, due to your marital status
• Not being allowed to enter a church after being charged with a crime

What do I need to file a discrimination complaint?

If you plan on filing a discrimination complaint, it is imperative that you document as much as possible. For example, if you have been discriminated against while applying for a job, prepare all the documents relevant to your job application process. If you were treated unfairly at a business establishment, keep receipts or other relevant material. If you are able to take photographs or video, related to the act of discrimination against you, due so. Write down the names of the offender as well as witnesses including the surrounding circumstances.

How do I file a discrimination complaint?

Before filing your complaint, you may want to consult with an attorney. When considering legal advice, it would serve you well to consult with an attorney that handles discrimination cases. The attorney will consider your claims then suggest ways to meet your legal needs.
Complaints about discrimination covered under may be filed with the federal government. To file a complaint with the , please contact the online. In New York, you may file in person at 33 Whitehall Street, 5th Floor New York, N.Y. 10004.

Complaints about discrimination covered under New York State Executive Law 296, may be filed with the state government. To file a complaint with the , please contact the online. You may file in person but, see the website for further information as the filing locations vary depending on the type of discrimination and the location.

Complaints about discrimination covered under New York City Administrative Code 8-107, may be filed with the City of New York. To file a complaint with the New York City Commission on Human Rights, please contact the online. You may file in person but, see the website for further information.

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Construction has always been a male dominated industry. This has long opened females up to the risk of sexual harassment. Today, sexual harassment is no longer limited to male-on-female harassment there are instances of male-on-male harassment as well. Because construction-related workforces have traditionally been composed primarily of male employees, it has created an air of machismo that may cause some men to be insensitive, rude, or even harassing towards female employees and other male employees who may find their behavior offensive.

Women who seek employment in construction often face gender discrimination in the hiring process. Hiring managers—especially those with traditional or “old-school� views on labor and women—often look down on women as inferior candidates, regardless of their qualifications. Women who work on construction sites often have to deal with inappropriate comments, gestures, unwarranted sexual advances, and in some cases, sexual abuse and rape. Unfortunately, many male employees do not consider female employees as their colleagues, and instead simply see them as “women� to flirt with or harass. Women who reject this unwanted conduct usually receive more abuse, leading to their resignation and in some cases they are terminated.

Male workers can also be the victim of gender discrimination in the construction industry. Men who are perceived to be effeminate or “not man enough� may be harassed by male co-workers. Some workplaces may have a tradition of hazing that is sexual in nature, which may be condoned by foreman and managers as harmless. They may feel that “boys will be boys� and therefore, such conduct is “no big deal.� For example, if a group of men grab a newcomer and pretend to rape him as a joke, while this may seem like nothing but a big joke to them, the act itself may constitute sexual harassment. Homosexuals and men who are perceived to be homosexuals are at great risk of being sexually harassed. Sometimes, other male workers who either dislike homosexuals, feel that they are incompetent or unworthy of their jobs, or simply do not want to work with homosexuals, may harass their homosexual co-workers in the hopes of making them resign or quit.

Fortunately, in recent years, more and more women and men have had the courage to complain about sexual harassment in the construction industry. Sexual harassment is a demeaning and humiliating experience that takes away the victim’s control. With more proactive action within the industry including workplace safety assessments and worker education, the construction industry will reduce the instances of sexual harassment in the workplace.
 

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The LGBT Pride Month is drawing to a close but New York City will continue its observance of lesbian, gay, bi-sexual, and transgender citizens’ rights. In accordance with its courtesy, professional, and respect strategy, the New York Police Department has begun instituting significant reforms designed to protect the civil rights and dignity of transgender and gender non-conforming people

During the LGBT Pride Event at the Great Hall, Cooper Union on June 12th, the Speaker Christine C. Quinn, Police Commissioner Raymond W. Kelly, Council Members and the NYPD LGBT Advisory Panel announced significant reforms to the NYPD Patrol Guide that formally outlines discrimination or harassment based on actual or perceived gender is prohibited by the New York City Human Rights Law (NYCHRL). The new Patrol Guide section specifically addresses the treatment of transgender and gender non-conforming (TGNC) citizens. TGNC as defined is analogous to LGBT.

The NYPD Patrol Guide changes are significant and specifically address a range of issues interacting with the TGNC community establishing search procedures for TGNC arrestees to requiring police officers to address TGNC citizens by their preferred name. The revisions include:

• Prohibiting the use of discourteous or disrespectful remarks regarding a person’s sexual orientation or gender identity/expression.

• Instructing police officers refer to transgender citizens by names, honorifics and pronouns that reflect their gender identity (even if it does not match the information on their ID documents) and amending forms so that an arrestee’s       “preferred nameâ€� can be recorded and used while they are in police custody.

• Prohibiting police officers from conducting any search for the purpose of determining a person’s gender. This also applies to School Safety officers that are assigned to the city’s public schools system.

• Arrestees in police custody will be searched by an officer of the gender they specifically request. If their request is not honored, the basis for not honoring such request will be noted in the command log.

• Defining “gender� to include gender identity and expression, consistent with NYCHRL. This means that self-identification is the primary consideration even if it differs from their genetic gender assigned at birth.

• Arrestees in police custody will be assigned to holding cells according to their gender identity, even if it differs from their genetic gender assigned at birth, unless there is a concern for the arrestees’ safety, in which case they will be considered “special category prisoners� and segregated accordingly.

• “Special category prisoners,� including transgender people, will not be cuffed to handrails, bars or chairs for unreasonable periods of time.
If you are a TGNC or LGBT citizen and interested in determining whether your civil rights have been violated, call ¸£Àû¼§. for a free consultation. Your voice for justice.

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