Blow Out Your Candles…and Clean Out Your Desk: The Dangers of Firing an Employee after Her 65th BirthdayNothing ruins a birthday celebration faster than a pink slip. Karen Ruerat, a receptionist, was terminated from her position at Professional Endodontics, P.C. four days after her 65th birthday. She alleges it was because of her age, and the EEOC is suing on her behalf, alleging violations of the Age Discrimination in Employment Act (ADEA).

The Details

Ruerat began working for Professional Endodontics in 1978 as a window greeter/receptionist. In January 2016, following 37 years of employment and, coincidentally, her 65th birthday, they terminated her. The EEOC complaint alleged that Professional Endodontics maintained an employment policy requiring its employees to retire at the age of 65, and Reurat’s termination was the result. Unsurprisingly, Professional Endodontics, in its answer, denied any and all contention that such a policy existed, as well as the claim that it treated Ruerat unfairly because of her age.

The Bigger Picture

Under the ADEA, it is unlawful to discriminate against a person because they are 40 years or older. In some limited instances, employers may avoid ADEA liability: (1) where age is a bona fide occupational qualification reasonably necessary to the normal operation of the par­ticu­lar business, and/or (2) where the differentiation is based on reasonable factors other than age. Generally speaking, however, any mention of age in relation to employment practices is likely to create red flags and employer headaches.

Fortunately, Professional Endodontics was able to resolve this claim by agreeing to not take any employment actions on the basis of age…and pay Ruerat $47,000. Professional Endodontics also agreed to supplement and re-distribute its existing policy with ADEA-specific language clearly stating that there is no mandatory retirement age and provide anti-discrimination training for the next two years.

What Does This Mean for Employers?

While there are clearly two sides to Ruerat’s story, employers can still take this opportunity to prevent future liability and litigation. Professional Endodontics likely did not have a mandatory retirement age; however, it also may not have clearly communicated its expectations/policies to its employees. Here, then, are a few items to help your company avoid a similar spat with the EEOC:

Avoid mentioning age (when possible) in your policies. The ADEA doesn’t have an upper age limit. Employers, then, should understand that you absolutely cannot institute a mandatory retirement age or anything that suggests people should retire. Age is a dangerous topic to broach, and for that reason employers should take care to thoughtfully review their current practices and policies.

Document employment decisions. In the normal course of business, there are countless personnel decisions made on a daily basis. It can be easy to lose track of what decision was made and why it was made. So employers should document all of their legitimate, non-discriminatory reasons when engaging in employment decisions. Create a strong paper trail so you can show that you fired an elderly employee because she couldn’t or wouldn’t do her job, not because of her age.

Use neutral communication. A lot of the tension created by employment decisions can be attributed to lapses in communication. As an employer, it is your duty to let your employees know where they stand. Whether that means reiterating performance standards or engaging in conversation over the seniority/merit/non-age based factors that you use to determine employment, be clear and stay neutral.

Provide training. With an increase in employee protections, it is never fruitless to invest in additional training opportunities for your staff. An ounce of prevention is truly worth a pound of cure. Whether the trainings are in person or through an online platform, ensure that your workers interact with anti-discrimination content regularly to help avoid any hostility, confusion, or miscommunications in the workplace.

As your employees gain experience, they gain years on the age clock. Old or young, be sure to manage all of your employees the same way.

Remember: Pregnant Employees Are Entitled to Reasonable Accommodations Too!It should come as no surprise that employers must treat pregnant employees just like everyone else when it comes to reasonable accommodations. We’ve blogged on this topic several times before, but a recent lawsuit by the EEOC in North Carolina merits a renewed focus on the issue.

The EEOC has sued Century Care of Laurinburg, Inc. d/b/a Scottish Pines Rehabilitation & Nursing Center over its treatment of two pregnant certified nursing assistants (CNA). According to the complaint, both CNAs requested accommodations to not lift more than a certain weight—an accommodation allegedly given to other employees who had been injured on the job. The EEOC says that the employer said such light duty was only available to employees with on-the-job injuries and denied the accommodations. When the CNAs’ doctors would not revoke the lifting restrictions and they had no more leave available, they were terminated. The complaint is seeking injunctive relief (including company policy changes), back pay, compensatory damages, and punitive damages on behalf of the terminated nurses.

Although the end result is yet to be seen, this case serves as a good reminder to employers to be careful when considering accommodations, especially when dealing with pregnancy-related accommodations. The Pregnancy Discrimination Act (PDA) prohibits discrimination on the basis of pregnancy, childbirth, and related medical conditions and provides that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.” This means that employers must treat pregnant employees the same as other employees. If a pregnant employee requests accommodation, the employer must consider a reasonable accommodation just like it would for a non-pregnant employee with a medical condition. That doesn’t mean that a pregnant employee must receive the requested accommodation. But the Scottish Pines lawsuit reminds employers to consider a pregnant employee’s request for reasonable accommodation just like any other request and that treating on-the-job injuries differently can land you in court.

Religious Liberty v. Gender Identity – Sixth Circuit Grants Summary Judgment to EEOC in Transgender Discrimination CaseLike the recent proliferation of sexual harassment discussions in the workplace, issues concerning transgender employees are slowly but surely confronting employers and policies that may reinforce sex and gender stereotypes. How should employers react if (and let’s be honest, when) they learn that an employee is transitioning from one sex to another? What are the potential consequences of adverse employment actions based on transgender status? EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. illustrates not only the expansion of the definition of sex discrimination under Title VII, but also the fragility of defenses to Title VII based on religious beliefs.

Background

Aimee Stephens was biologically male and presented herself as male during the six years that she was employed as a funeral director at R.G. and G.R. Harris Funeral Homes. Stephens informed the funeral home owner, Thomas Rost, that she would be having sex reassignment surgery and begin presenting herself and dressing as a woman at work. A few weeks later, Rost terminated her, asserting that he sincerely believed that a person’s sex was an immutable God-given gift and allowing Stephens to present herself as a woman would violate his religious beliefs.

Stephens filed an EEOC charge alleging that she was terminated because of her sex. The EEOC made a reasonable cause determination against the funeral home, was unable to conciliate the charge, and ultimately sued the funeral home for violating Title VII by terminating Stephens on the basis of her transgender or transitioning status and her refusal to conform to sex-based stereotypes.

Funeral Home Prevails in District Court

The funeral home argued that it did not violate Title VII by requiring Stephens to comply with a sex-specific dress code because the policy equally burdened male and female employees. Alternatively, the funeral home argued that it should not be forced to comply with Title VII because employing Stephens while she presented herself as a woman would constitute an unjustified substantial burden on Rost’s sincerely held religious beliefs in violation of the Religious Freedom Restoration Act (RFRA).

At the summary judgment stage, the district court ruled that Stephens could not pursue a Title VII claim based on her transgender or transitioning status. Nevertheless, the district court found direct evidence that the funeral home had discriminated against Stephens on the basis of her sex because Stephens failed to conform to the funeral home’s sex or gender-based stereotypes. Despite its direct evidence finding, the district court granted summary judgment to the funeral home, holding that the RFRA precluded the EEOC from enforcing Title VII against the funeral home, as doing so would substantially burden Rost and the funeral home’s religious exercise. The court found that the EEOC had failed to demonstrate that enforcing Title VII was the least restrictive means to achieve its presumably compelling interest in ensuring that Stephens was not discriminated against on the basis of her sex.

Sixth Circuit Reverses District Court and Grants Summary Judgment to EEOC

In a detailed opinion, the Sixth Circuit not only reversed the district court, but granted summary judgment to the EEOC. First, the Court agreed that the funeral home engaged in improper sex stereotyping when it terminated Stephens for wishing to present herself in a manner that contradicted the funeral home’s expectation of how a biological male should present himself. Highlighting Price Waterhouse v. Hopkins and its own decision in Smith v. City of Salem (also involving a transgender employee), the Sixth Circuit stated that the funeral home’s decision to fire Stephens “fell squarely within the ambit of sex-based discrimination” that these opinions forbid. The Court also noted that the funeral home failed to establish a non-discriminatory basis for Stephens’ termination and even admitted that she was not fired for performance-related issues.

Next, the Sixth Circuit ruled that discrimination on the basis of transgender and transitioning status violated Title VII. The Court explained that discrimination “because of sex” inherently included discrimination because of a change in sex. It added that:

“[A] transgender person is someone who ‘fails to act and/or identify with his or her gender’—i.e., someone who is inherently ‘gender-nonconforming.’”

Title VII required gender to be irrelevant to employment decisions, and gender was not irrelevant if an employee’s attempt to change his or her sex led to an adverse employment decision.

Regarding the funeral home’s RFRA defense, the Sixth Circuit explained that the funeral home had not met its burden. Under RFRA, the funeral home had to demonstrate that the government action at issue—i.e., the enforcement of Title VII—would substantially burden a sincere religious exercise. Although the Court conceded the sincere religious exercise, it held that the burdens that the funeral home identified were not substantial. In addressing the funeral home’s argument that allowing a funeral director to wear the uniform of the opposite sex would distract the loved ones of the deceased and hinder their healing process, the Sixth Circuit held that a religious claimant could not rely on customers’ presumed biases to establish a substantial burden under the RFRA. In addressing the funeral home’s second argument that forcing the funeral home to violate Rost’s faith would significantly pressure him to leave the funeral industry, the Sixth Circuit held that tolerating Stephens’ understanding of her sex and gender identity was not tantamount to supporting it, and bare compliance with Title VII did not amount to an endorsement of Stephens’ views regarding the mutability of sex. Because the funeral home did not establish that Rost’s religious exercise would be substantially burdened by requiring the funeral home to comply with Title VII, its RFRA defense failed. Still, “in the interest of completeness,” the Court clarified that even if Rost’s religious exercise was substantially burdened, enforcing Title VII was the least restrictive means of furthering the government’s compelling interest in eradicating workplace discrimination against Stephens.

Takeaways

The Sixth Circuit’s opinion undeniably illustrates the extent to which the federal government will go to enforce anti-discrimination laws as they relate to the LGTQI community. This case is one of the EEOC’s first lawsuits on behalf of a transgender individual and it would not be unrealistic to believe that more will follow. Consequently, employers should pay close attention to transgender rights in the workplace and the rulings of other circuit courts on related issues.

Employers should consider these guidelines:

  • Remain cognizant of your responsibility to prevent and address any form of sex discrimination, whether it involves sexual harassment, sex or gender stereotypes, gender identity, and/or disparate treatment on the basis of sex.
  • Properly train employees and supervisors on how to communicate, interact with, and/or discipline one another in ways that avoid hostile, offensive, or discriminatory conduct.
  • Ensure that any adverse employment action is supported by a legitimate, non-discriminatory reason, preferably one that is performance-related or involves the violation a known employment policy or procedure.

As demonstrated here, there is no guarantee that a person or institution’s religious beliefs will be a sufficient defense to evade liability under Title VII.