Most employers understand the importance of having a well-communicated policy that prohibits various forms of illegal harassment, including sexual harassment. Not only can such policies have the beneficial effect of reducing or eliminating the existence of such harassment in the workplace, but a documented program of addressing and correcting such problems can go a long way towards reducing or eliminating potential liability. No company can guarantee a pristine work environment, and the law does not require it. There is, however, a “reasonable care” standard that has been largely adopted by the courts so that employers who can show they have taken reasonable steps to prevent or remedy harassment cannot be held liable for it.

This is a nuanced area of the law, but a few general propositions are borne out by a decision recently issued by the Minnesota Court of Appeals,  Allen v. United Piping, Inc. In this case, the plaintiff complained that she was hearing comments of a harassing nature, suggesting that having a woman on the job was a negative. The comments were reported to the Vice-President of Construction. Executives of the employer met with most of the employees involved in the alleged harassment. They were warned that further allegations would result in the termination of their employment. All of the employers about whom the allegations were made received written reprimands in their personnel files. When the employee later reported that she believed she was continuing to experience harassment, the company instituted anti-discrimination and anti-harassment training for all employees.  The employee later complained, asserting that she felt uncomfortable during the training because she felt that people in the training room were staring at her and that the trainer was focusing remarks on her. She did not, however, ask the company to take any further action. She was later laid off and then sued for sexual harassment under the Minnesota Human Rights Act.

The Court of Appeals upheld the dismissal of her claims, noting the following types of remedial actions available to an employer:

  1. Preventive measures, including policy dissemination and the establishment of procedures for resolving complaints of harassment.
  2. Undertaking efforts to improve the conditions of the complaining employee’s terms of employment, perhaps including a transfer to a different work location; and
  3. Taking disciplinary action against the offender(s) following an investigation.

Taking these three steps, the court held, eliminated potential liability. Employers are well-advised to not only take such actions but also document that these steps have been implemented.  This can go a long way towards eliminating feelings of harassment in the workplace and avoiding liability.

Most of you will recall the fight in numerous political elections just a few years ago over the issue of whether same-sex couples have the right to marry.  The Supreme Court put the issue to rest through a decision in 2015, holding that the 14th Amendment of the U.S. Constitution provides the fundamental right and requires all 50 states to recognize same-sex marriages on the same terms as opposite-sex marriages.  While that decision was certainly pivotal and critical to the advancement of LGBT rights, it did not end the battle.

The question of whether federal laws such as Title VII of the Civil Rights Act prohibit discrimination on the basis of sexual orientation or gender identity by employers remains unsettled.  Although many states, including Minnesota, have enacted laws prohibiting such discrimination, many have not, leaving federal law as the only existing source for protection in such jurisdictions.  One of the likely reasons why the confirmation hearing for recently appointed Justice Brett Kavanaugh to the Supreme Court was so hotly contested is that several decisions regarding this question are pending review by the court.  With the departure of Justice Anthony Kennedy, who authored many of the court’s pro-LGBT rights decisions, and the additions of conservative Justices Kavanaugh and Neil Gorsuch to the court, the potential for a halt to the advancement of LGBT rights is real.

For example, two cases involving gay rights in employment have been presented to the Supreme Court for potential review.  In cases from the Second Circuit Court of Appeals and the 11th Circuit, the plaintiffs are gay and allege their employers discriminated against them on the basis of sexual orientation. In both cases, the plaintiffs argued that such discrimination is illegal under Title VII, which prohibits discrimination on the basis of “sex” but does not include the term “sexual orientation.” Their basic argument, in essence, is that discrimination on the basis of sexual orientation is “sex” discrimination because an employer cannot know if an employee is gay without knowing their sex and that of their partner’s. The 11th Circuit ruled for the plaintiff, holding Title VII prohibits such discrimination. The Second Circuit, however, ruled against the plaintiff on the same question. The losing parties in both cases sought review by the Supreme Court, which has not yet decided whether it will review them. And in a decision from the Sixth Circuit Court of Appeals, the court has been asked to decide whether Title VII similarly prohibits discrimination on the basis of gender identity, such as for employees who are transgender (the Sixth Circuit held it does, despite opposition from the Trump administration).

Another pivotal issue for LGBT rights is the question of whether an employer’s religious or other First Amendment rights can somehow override laws prohibiting discrimination on the basis of sexual orientation or gender identity. You will recall the well-publicized case involving a Colorado bakery which was fined for refusing to make a wedding cake for a same-sex couple in violation of Colorado’s law prohibiting places of public accommodation from discriminating on the basis of sexual orientation. The Supreme Court ultimately avoided deciding the question of whether the bakery’s owner, who claimed his religion did not allow him to make or sell the cake, had the religious and free speech rights under the First Amendment to refuse service to the couple. Instead, the court reversed the fine on the narrow basis that the state commission had not employed religious neutrality while investigating and deciding the case.

In a pending case out of Oregon, the primary question of First Amendment rights, at issue in the Colorado bakery case, is back again. There, a religious couple who owns a bakery contends the First Amendment gives them the right to discriminate against gay people, whether in connection with sales to customers or the hiring of employees, because homosexuality is against their religion. The Oregon state courts rejected their contention, but the couple has requested review by the Supreme Court. If the Supreme Court recognizes such a right under the First Amendment, employers across the country could utilize that defense in sexual orientation and gender identity discrimination cases under both state and federal anti-discrimination laws.

It remains to be seen whether the Supreme Court will review any of these cases and, if it does, how it will rule with the addition of the two recent nominees from President Trump.

Don’t assume that men can’t sexually harass other men (or women can’t harass other women), or otherwise discriminate against them in violation of the civil rights laws. In August of this year, the Seventh Circuit Court of Appeals issued a decision involving allegations of sexual harassment by a male employee against his male coworkers and supervisors in a small grocery store. Smith v. Rosebud Farm (7th Cir, 8/2/2018). Smith, a butcher, asserted that soon after he became employed, male coworkers behind the meat counter were grabbing his genitals and buttocks, and repeatedly mimed oral and anal sex. Smith’s supervisor was found to not only have been aware of the harassment, but also to have been a participant upon occasion. Smith eventually filed charges with the EEOC alleging sexual harassment and race discrimination. Although the supervisor told the coworkers to stop “goofing off” they began banging their meat cleavers and carrying large knives by Smith while pointing at the meat trays they carried.

The appellate court upheld the jury verdict, finding that the behavior showed Smith was being mistreated on the basis of his sex — male. Smith had offered evidence that only men, and not women working in the grocery store, experienced the same kind of treatment that he suffered. As a result, the jury was allowed to conclude that the discrimination was based upon sex. The appellate court also held that if this had been an all-male environment, with no females to whom Smith could compare himself for evidentiary purposes, there would be no inference of sex discrimination as was allowed by the court here.

What should you take away from this decision? Any time the reason for someone’s treatment at work can be said to have been based on or because of that person’s gender, there is a potential risk for sexual harassment or other forms of sex discrimination. Keep in mind, sexual harassment is just one form of sex discrimination. So, if harassment is based on a person’s gender, such as reflected in the Smith case with regard to physical actions directed at his genitalia, there is the potential for sexual harassment liability regardless of the gender of the perpetrator(s). Be wary of assuming that just because only men or only women are involved in workplace misconduct, or just because no one is asking for sex, that discrimination liability is precluded. The span of sex discrimination and sexual harassment goes far beyond those traditional paradigms.

Today’s employees come from hundreds of foreign countries and speak hundreds of languages. Some employees have accents and some employees are difficult to understand because of their accents. What is an employer to do? It is illegal under state and federal law to discriminate against an applicant or an employee because of his or her national origin. Is it discrimination to require that an employee speak in a manner that is understandable? It depends.

There are many jobs where the employees do not come into contact with the public, or where speech and communication are not critical elements of the job description. For these jobs, thick accents do not create an obstacle for the employee to effectively perform their job. But where a job does require an employee to be articulate and easily understood, being clearly understood is an essential function of the job. In those cases, heavy accents may result in great difficulty for foreign employees to be understood. So, for example, where an employee’s job entails answering and speaking on the telephone, if the person on the other end of the telephone cannot understand the employee, there is a problem.

Ability to effectively communicate can be a legitimate job criterion if it is related to the functions and tasks of the job. Employees who cannot speak clearly will not have the qualifications to perform that job. Whether or not fluency in English is essential for job performance must be determined on a case-by-case basis. The 2016 EEOC Enforcement Guidance on National Origin Discrimination states “National origin discrimination involves treating people … unfavorably because they are from a particular country or part of the world, because of ethnicity or accent, or because they appear to be of a certain ethnic background…”

Accent and Nationality

In a 1989 case, Fragante v. City and County of Honolulu et al, the plaintiff was a Filipino applicant for a position as a clerk with the City and County of Honolulu. He scored the highest of all applicants on a civil service examination. However, the employer did not hire him because of the perceived deficiency in his relevant oral communication skills caused by his “heavy Filipino accent.” He sued the employer alleging that the failure to hire him was discrimination on the basis of national origin. The 9th Circuit Court of Appeals stated that:

“Accent and national origin are obviously inextricably intertwined in many cases. It would therefore be an easy refuge in this context for an employer unlawfully discriminating against someone based on national origin to state falsely that it was not the person’s national origin that caused the employment or promotion program, but the candidate’s inability to measure up to the communications skills demanded by the job.”

The Decision

The court agreed with the employer that Mr. Fragante did not have the necessary communication skills because of his accent. The court reached this conclusion with the following caveat: “An adverse employment decision may be predicated upon an individual’s accent-but only when-it interferes materially with job performance. There is nothing improper about an employer making an honest assessment of the oral communications skills of a candidate for a job when such skills are reasonably related to job performance.”

An employment decision can legitimately be based on an individual’s accent if the accent interferes materially with job performance. Job descriptions should expressly state that ability to communicate in a manner that can be understood is an essential job function. The burden is on the employer to provide evidence demonstrating that effective spoken communication in English is necessary for the job and the individual’s accent materially interferes with his or her ability to communicate in English.

Employers should act carefully when making adverse employment decisions based on an individual’s accent.