LabourStart headline – Source: Myanmar Times

LONDON (Reuters) – Banks in Britain have tried to reassure their London staff over possible Brexit disruption, including a shift in jobs to continental Europe, as Prime Minister Theresa May triggered formal EU divorce proceedings on Wednesday.

By Kathleen Kapusta, J.D.

Bound by the decisions of prior panels, the Second Circuit, affirming in part the decision of the court below dismissing an openly gay employee’s claims, refused his invitation to reconsider earlier precedent in light of a changed legal landscape and to hold that Title VII’s prohibition on discrimination “because of . . . sex” encompasses discrimination on the basis of sexual orientation. Reversing in part, however, the appeals court found the employee plausibly alleged a Title VII claim based on gender stereotyping. In a concurring opinion, Judges Katzmann and Brodie wrote that “in the context of an appropriate case, our Court should consider reexamining the holding that sexual orientation discrimination claims are not cognizable under Title VII. Other federal courts are grappling with this question, and it well may be that the Supreme Court will ultimately address it” (Christiansen v. Omnicom Group, Inc., March 27, 2017, per curiam).

The HIV-positive employee alleged that his supervisor described him as “effeminate” to others in the office, depicted him in tights and a low-cut shirt “prancing around,” and circulated a poster with his head attached to a female body clad in a bikini lying on the ground with her legs upright in a manner that one coworker thought depicted him as a “submissive sissy.” The supervisor also made comments suggesting the employee had AIDS.

No coherent line. The employee sued, asserting, among other things, a claim under Title VII. While declaring that “no coherent line” could be drawn between sex stereotyping and sexual orientation discrimination, the district court nonetheless followed circuit precedent and dismissed his claim finding Title VII does not cover sexual orientation. The court also found that, as a whole, his complaint did not allege he was discriminated against because he did not conform to gender stereotypes, but because he was gay.

Bound. On appeal, the Second Circuit panel pointed out that it was “bound by the decisions of prior panels until such time as they are overruled either by an en banc panel of our Court or by the Supreme Court.” Thus, it lacked the power to reconsider Simonton v. Runyon and Dawson v. Bumble & Bumble, which held that Title VII does not prohibit discrimination on the basis of sexual orientation.

Confusion. The employee, however, plausibly alleged a Title VII claim based on the gender stereotyping theory of sex discrimination articulated in Price Waterhouse, said the appeals court, noting that his complaint identified multiple instances of this type of discrimination. As to the district court’s determination that his allegations about his effeminacy did not transform his claim into one for sexual stereotyping, the appeals court pointed out that “this draws attention to some confusion in our Circuit about the relationship between gender stereotyping and sexual orientation discrimination claims.”

Noting that some district courts have viewed Simonton and Dawson as making it “especially difficult” for gay plaintiffs to bring gender stereotyping claims, the court explained that these cases “misapprehend” the nature of these rulings and that “gay, lesbian, and bisexual individuals do not have less protection under Price Waterhouse against traditional gender stereotype discrimination than do heterosexual individuals.” Rather, said the court, Simonton and Dawson “merely hold that being gay, lesbian, or bisexual, standing alone, does not constitute nonconformity with a gender stereotype that can give rise to a cognizable gender stereotyping claim.”

Here, the employee alleged he was perceived by his supervisor as effeminate and submissive and that he was harassed for these reasons. Further, the harassment allegedly invoked “stereotypically feminine” traits. Finding it could not at the motion to dismiss stage weigh the evidence and evaluate the likelihood the employee would prevail on his gender stereotyping claim, the appeals court found he stated a plausible claim and reversed for further proceedings.

Concurrence. In a separate opinion, the concurring judges argued that “when the appropriate occasion presents itself, it would make sense for the Court to revisit the central legal issue confronted in Simonton and Dawson, especially in light of the changing legal landscape that has taken shape in the nearly two decades since Simonton issued.”

Further, the concurrence pointed out, “taking a fresh look at existing cases, the EEOC and other advocates have articulated three ways that gay, lesbian, or bisexual plaintiffs” could show discrimination because of sex. First, the judges observed, plaintiffs could demonstrate that if they had engaged in identical conduct but been of the opposite sex, they would not have been discriminated against. Second, they could demonstrate that they were discriminated against due to the sex of their associates. Finally, plaintiffs could demonstrate that they were discriminated against because they do not conform to some gender stereotype, including the stereotype that men should be exclusively attracted to women and women should be exclusively attracted to men.

“Neither Simonton nor Dawson had occasion to consider these worthy approaches,” the judges argued, reasoning that the “binary distinction that Simonton and Dawson establish between permissible gender stereotype discrimination claims and impermissible sexual orientation discrimination claims requires the factfinder, when evaluating adverse employment action taken against an effeminate gay man, to decide whether his perceived effeminacy or his sexual orientation was the true cause of his disparate treatment.” This, however, “is likely to be an exceptionally difficult task in light of the degree to which sexual orientation is commingled in the minds of many with particular traits associated with gender.” More fundamentally, the judges argued, “carving out gender stereotypes related to sexual orientation ignores the fact that negative views of sexual orientation are often, if not always, rooted in the idea that men should be exclusively attracted to women and women should be exclusively attracted to men—as clear a gender stereotype as any.”

In the view of the concurring judges, “if gay, lesbian, or bisexual plaintiffs can show that they were discriminated against for failing to comply with some gender stereotype, including the stereotype that men should be exclusively attracted to women and women should be exclusively attracted to men, they have made out a cognizable sex discrimination claim. In such a case, the gender stereotype theory of discrimination would encompass discrimination on the basis of sexual orientation. In neither Simonton nor Dawson did we consider this articulation of the gender stereotype at play in sexual orientation discrimination.”

By David Yucht, J.D.

Citing a supervisor’s disparaging and hostile comments about the pregnancy of a university program coordinator whose employment was not renewed while she was on leave, a federal court in the District of Columbia found she stated claims for interference, retaliation, and discrimination under the D.C. Family Medical Leave Act (DCFMLA), the D.C. Human Rights Act, and Title VII. Accordingly, the court denied the university’s motion to dismiss (Holmes v. University of the District of Columbia, March 23, 2017, Moss, R.).

Although the employee’s position was funded by grants, she was assured that her job was permanent for all practical purposes and it had been funded continuously for approximately 30 years. In November 2013, the employee began working for a new supervisor. Two months later, she learned she was pregnant. Because she had previously suffered several miscarriages, her doctors considered her pregnancy to be “high risk.” At a subsequent staff meeting, and before she intended to announce her pregnancy, her supervisor pointed at her abdomen and asked “Is there something you need to tell me?” The supervisor followed with intrusive questions making the employee feel uncomfortable.

Irresponsible. The employee believed the supervisor had expressed that she was irresponsible for having a baby out of wedlock. In front of coworkers, the supervisor stated she “would never have considered having a baby when she was living with a roommate or in her parents’ home” and that, “by the time [the supervisor] had a baby, she was married and she and her husband had a house together.”

The employee took a pre-approved sick day for doctors’ appointments. After the appointments, her supervisor questioned the need for a full day off. The employee disclosed that her pregnancy was high-risk. The supervisor, thereupon, interrogated her to make sure she was not “abusing her leave.” Although she had not indicated that she was unable to perform her job, the supervisor encouraged the employee to take FMLA leave immediately. Fearing that she was being pushed out, she responded that it was unnecessary for her to take FMLA and preferred to wait until the baby was born.

Leave. Eventually, the employee was placed on bed rest to prevent premature delivery. Accordingly, she requested FMLA leave. HR approved her request and advised that her job was protected.

While on leave, she saw an online notice for her job. She contacted an HR officer, who expressed concern and surprise but could not provide her with any information. Shortly after giving birth, she received an email from her supervisor informing her that the university “was not renewing her appointment.” No reason for the termination was provided. The position was not defunded; she was replaced with a male employee. She sued under the DCFMLA and for discrimination under DC municipal regulations.

DCFMLA interference. The court refused to dismiss the employee’s DCFMLA interference claim. It was not impressed by the university’s argument that, under D.C. law, the university was not obligated to renew her appointment. The court found that at best, the university demonstrated that it could have declined to extend the employee’s appointment. But nothing established that the university would have done so if the employee had not taken medical leave. They had renewed her appointment as a matter of course in the past, and she had at all times ably performed her job.

Retaliation/discrimination. The court also refused to dismiss the employee’s remaining claims. The court was impressed by the specific facts she alleged to show her supervisor publicly embarrassed her for being pregnant; that she expressed disapproval of having a child while not married to her child’s father; that she attacked the employee for using a routine sick day for pregnancy-related doctors’ appointments; that she questioned her about her sensitive medical condition; that the supervisor had no legitimate reason for these hostile actions; and that she failed to identify any reason for declining to renew the employee’s employment despite her satisfactory job performance. These factors were sufficient to persuade the court to sustain all of the employee’s retaliation and discrimination claims.

Disagreeing with the university, the court found that temporal proximity was sufficient at the pleading stage to support a claim of retaliation.Moreover, the court was critical of the university’s argument that since her appointment had expired on its own terms, the employee could not prove causation. The decision not to renew her appointment was an adverse employment action. If the university undertook that action for discriminatory reasons, it was liable.

As to her pregnancy discrimination claim, the court found that despite the university’s assertion otherwise, that there was no need for the employee to allege the university treated other similarly situated employees not in her protected class more favorably under the same factual circumstances.

Also rejected was the university’s argument concerning disability discrimination. The university contended that the operative date of its adverse employment decision was not when it decided to terminate the employee, but rather when her termination became effective. Thus, because the termination did not formally become effective until after the birth of her child, the employee was not disabled at the time of her termination and therefore could not invoke the ADA. This argument, said the court, ignored the two basic elements of a disability discrimination claim: (i) an employee suffered an adverse employment action (ii) because of the employee’s disability.

Marital status/family responsibility discrimination. When read in the light most favorable to the employee, the complaint alleged a plausible claim that the supervisor discriminated against her because she was pregnant but not married. That was sufficient to state a claim for discrimination based on marital status, said the court, finding the analysis was similar for the family responsibility claim. There was no need for the employee to allege the existence of similarly situated employees who were treated differently.

Graduates are much more likely to earn more and have full-time jobs.

The Japanese government adopted an action plan yesterday for work reform, calling for capping overtime at 100 hours a month, promoting equal pay for equal jobs and improving conditions for non-regular workers, according to the Japan Times.

“This will be a historic first step to change how people work in Japan, and 2017 will be remembered as the starting point,” Prime Minister Shinzo Abe said.

The action plan calls for limiting overtime work to 45 hours per month and 360 hours per year in principle, while exceptionally allowing monthly overtime of less than 100 hours at busy times, with some additional conditions.

Meanwhile, the equal pay for equal work initiative aims to eliminate unreasonable disparities in pay when compared with full-time staffers.

In recent years, the number of non-regular workers has drastically increased, and they now account for about 40% of the total workforce. Workers on part-time contracts earn an average of about 60% of the hourly wage of regular full-time workers.

The government aims to submit related bills to the Japanese Parliament by the end of the year and will aim to implement the reform in fiscal 2019.

India is the most preferred market for outsourcing business among more than 75% multinational companies, according to a report from real estate firm CBRE Group.

The report, Asia Pacific Occupier Survey, credits India’s formidable IT business process outsourcing for the country being the most preferred outsourcing destination.

Bangalore (29%), Mumbai (23%) and Delhi NCR (20%) respectively have emerged as the most preferred expansion destinations for companies.

However, MNC’s have expressed concerns over India largely relating to higher costs and economic uncertainty following the introduction of demonetisation at the end of last year, as well as the impact of the new US administration.

“India’s buoyant economy, steady progress in enacting regulatory reforms and booming outsourcing sector, coupled with a growing talent pool continues to make it an attractive outsourcing destination,” Anshuman Magazine, Chairman, India and South East Asia, CBRE said. “With corporates increasingly adopting cost effective workplace strategies, we believe that key cities in the country will remain on the radar of domestic and multinational corporates looking to expand their operations.”

The majority of jobseekers in the Middle East believe that HR departments should always communicate with jobseekers, according to a report from jobs site Bayt.com.

The report, ‘Communication at Work in the Middle East, shows that 59% of respondents believe that the HR department should always communicate with job seekers, even if they are rejected; while 20% believe that HR departments should communicate with prospective job seekers only if they are qualified. However another 20% believe that companies should only communicate with the short-listed candidates. Meanwhile, more than 90% of respondents want to have a job where they can communicate easily.

“Communication is the essence of employee satisfaction, successful team dynamics, and higher work productivity. It is critical that employers and managers frequently review their communication practices and regulations in order to guide their workforce towards success,” Suhail Masri, vice president of employer solutions at Bayt.com, said.

The data also showed that email is the main method of communication at work, according to 67.5% of respondents. This was followed by in-person communication (14.8%), social media (13.5%), instant messaging (3.3%) and audio and video conferences (0.9%). Email was stated to be the most effective mode of workplace communication.