The pandemic may have made many legal proceedings virtual, but acting legal counsel for the United States Equal Employment Opportunity Commission Carol Miaskoff still had a long way to go at the conference. The agency’s EXCEL training session in June 2021. Three key trends emerged from its discussion of important EEOC court cases decided last year.

1. The questions Bostock left unanswered

Last June, the Supreme Court of the United States rendered a landmark decision by issuing its Bostock decision, which granted workplace protections to LGBTQ people. He provided some necessary clarification on job protections, but he left some questions unanswered.

The courts have answered some of these questions following Bostock, Miaskoff said. An Illinois district court, for example, applied the Bostock analysis when a worker alleged that her union had discriminated against her on the basis of sex by refusing to enroll his wife in the health insurance coverage he previously provided to opposite-sex couples (Jimenez v. Workers’ welfare fund, 2020 WL 5979653 (ND Ill. 8 October 2020)).

The court ruled in favor of the employee, noting that “it can no longer be disputed that the alleged conduct constitutes discrimination on the basis of sex. . . receive this blanket because she was a woman who was looking for a blanket for her wife. “

Another trial court rejected an employer’s argument that mistaken gender identification is not covered by Title VII (Doe v. Triangle Donuts, 2020 WL 4013409 (ED Pa. July 16, 2020)). Co-workers and supervisors of a transgender worker had intentionally referred to her using male pronouns, her former male name and slang like “dude,” Miaskoff said. “It naturally follows [from Bostock] that discrimination based on gender stereotypes falls under the prohibitions of Title VII ”, declared the court.

The U.S. 6th Circuit Court of Appeals made a different decision when it considered a professor’s complaint that a public university violated its right to free speech when it required professors to designate the students by the pronouns of their choice (Meriwether vs. Hartop, 992 F.3d 492 (6th Cir. 2021)). The Title VII requirement that an employer not fire an employee for expressing a transgender identity “falls short” from the requirement that a professor modifies his speech to recognize another person’s gender identity, has declared the court.

2. Courts deal with accommodation

The basic rationale for granting special treatment to pregnant women is disparate treatment, Miaskoff said. Employers should treat pregnant women in the same way as other workers with limited capacity to work. This justification comes from the Supreme Court decision of 2015 Youth vs. UPS.

This spring, a lower court said an employer should have compared a pregnant worker asking for an exemption from a mandatory flu vaccination policy to other employees with similar limitations (LaBarbera v. NYU Winthrop Hosp., 2021 WL 980873 (EDNY 21 Mar 2021)). Instead, the employer refused the worker’s request, arguing that she had no conditions that would prevent her from receiving the vaccine.

In the end, the court ruled that the worker had failed to establish her case because she had not provided any comparators. “But that’s important because what he’s saying is that the analysis of pregnancy is slightly different from that of disability,” Miaskoff said.

The courts have also discussed religious accommodations.

This year, the 7th Circuit rejected the EEOC’s argument that a Walmart store could have accommodated a manager who requested time off on Friday nights and Saturdays, in line with his Seventh-day Adventist beliefs (EEOC c. Walmart E., 992 F.3d 656 (7th Cir. 2021)). The court ruled that such an arrangement would have exceeded “more than a slight charge” for the store.

The 6th Circuit applied the same logic when it sided with an employer who fired a former Jehovah’s Witness who had taken time off work to attend a Good Friday service (Small c. Memphis Power Co., 952 F.3d 821 (6th Cir. 2020)). The 11th Circuit ruled in favor of an employer for the same reason in May 2020 (Dalberiste c. GLE Associates Inc.).

The Supreme Court refused to consider Small and Dalberist, but “they got closer” to picking up the cases, Miaskoff said. Judges debated cases at 13 conferences, and Justices Samuel Alito and Neil Gorsuch dissented.

3. The courts continue to weigh in on racial discrimination, harassment

Last year, Circuit 2 heard a case in which an employer revoked job offers to two black plaintiffs when it learned they had a criminal record (Mandala vs. NTT data, 975 F.3d 202 (2nd Cir. 2020)). The plaintiffs argued that the employer had engaged in racial discrimination, citing national statistics showing that black men were arrested and incarcerated at higher rates than white men.

“What’s very interesting here is a small step, but an important step,” said Miaskoff. “The majority and dissent are basically building a road map.” The court ruled that the plaintiffs had not made an allegation of illegal disparate impact, but said they could have explained why the national statistics were probative or highlighted other publicly available national statistics. “It’s an important invitation, so to speak, and an issue to watch out for,” Miaskoff said.

In December, a district court found that a black nurse was not subjected to a racially hostile work environment after the worker alleged that a coworker identified herself as a “redneck” and said that she wore the Confederate flag at home (Yelling v. St. Vincent’s Health Sys., 2020 WL 7059450 (ND Ala. 2 December 2020)). While case law has recognized that the display of the Confederate flag at work is based on race, to speak of a Confederate flag displayed at home is not based on race, the court said. “The trial court analyzed the facts very closely,” Miaskoff said.

Other comments made around the nurse – that President Barack Obama’s ears made him look like a monkey, that black patients were drug seekers – did not create a hostile work environment, the court said. .

The case is on appeal to the 11th Circuit. It’s on hold and not yet decided, Miaskoff said.

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