Back in September we described a case of same sex harassment and retaliation at a small mom & pop type business. It may be no surprise that a company with only a few employees and no compliance department would fail to prevent violations. But as a recent lawsuit by the Equal Employment and Opportunity Commission (EEOC) and the victimized former employee shows, risk reduction measures by large corporations are also only as good as the persons implementing them. According to the lawsuit’s allegations, fast food chain Chipotle’s efforts to prevent harassment failed spectacularly. See generally EEOC v. Chipotle Mexican Grill, Inc., Case No. 8:20-cv-02128 (M.D. Fla., Sept. 10, 2020).

The female employee, Ms. Cassandra Jerome, was working at Chipotle in the Tampa, Florida area, in the company’s management training program that had employees cycle through the various store positions, with the goal of becoming an apprentice manager and, presumably, eventually a store manager. According to allegations, between March 2018 and May 2018, one of the kitchen employees, Mr. Lazaro Avila, sexually harassed and assaulted Ms. Jerome. Specifically, the EEOC and Ms. Jerome allege Mr. Avila:

  • Made repeated and frequent sexually charged remarks over a three-month period (approx. 2-4 times a week) including, but not limited to saying, “[y]our breasts are so big,” and “I want to sink into your ass;”
  • Frequently touched Ms. Jerome’s buttocks and rubbed up against it in passing; and
  • Twice sexually assaulted her, first by pushing a food tray up between her legs, and, later that same day, grabbing her hair when she was kneeling by a garbage can and proceeding to simulate oral sex.

According to the allegations, Ms. Jerome reported the inappropriate touching and comments to her supervisor and her store’s manager on at least four occasions. She also immediately reported the sexual assaults to her supervisor, and both the supervisor and Ms. Jerome jointly informed the store manager on the day of the assaults. The store manager advised that appropriate action would be taken. Five days later, when no apparent action had been taken, Ms. Jerome informed her supervisor and the store manager that she would inform Chipotle corporate management of her complaint, but she was assured her claims would be escalated to human resources. Instead, Ms. Jerome was terminated three days later, based on a failed food safety audit that had been performed that day.

The EEOC is alleging a sexually hostile work environment and unlawful retaliation for Ms. Jerome having reported the harassment and assault, under Title VII of the Civil Rights Act of 1964. For a refresher on Title VII harassment and retaliation, take look back at our prior post. Ms. Jerome, who intervened in the EEOC lawsuit and is now also suing Chipotle, alleges a variety of claims in addition to those brought under Title VII, including Florida Civil Rights Act claims and common law claims of negligent infliction of emotional distress, negligent retention, negligent supervision, negligent training, and negligent hiring. Copies of the EEOC and Ms. Jerome’s complaints can be found here and here.

So, what’s the point? If true, the allegations against Chipotle are a good reminder that employees of large, well-heeled companies can be subject to discrimination, harassment, and retaliation, just like everyone else. Large employers usually put systems in place to prevent abuses and to better defend against lawsuits like this one. But even if these systems are operational, they can—and do—break down, especially when lower-level management fails to intervene or take complaints seriously at an early stage. The lesson: employees should not be discouraged to come forward, regardless of the size of the employer.

Cliché or not, we are living in unprecedented times. At least unprecedented in the lives of most readers; centenarians are a possible exception.

Here in the United States, the Coronavirus and the related shutdown of the economy have caused the most severe recession since the Great Depression in the 1930s. In terms of unemployment, at its peak in April 2020, there were at least 20.5 million people unemployed,[1] or 14.7% of the population[2].  The actual number was much higher, including non-traditional workers (think gig economy, Uber, Airbnb etc.).

But, as is often (or, unfortunately, usually) the case, this unemployment tsunami has not hit everyone equally. Women and racial minorities have borne the brunt of the layoffs.

There are obviously many reasons for this unequal distribution. For instance, many of the virus-related layoffs were in the hospitality sector, an industry in which more women work.

But unlawful discrimination has undoubtedly also played a part in many cases. One recent example that received significant press coverage, including here, illustrates some of the discriminatory behavior female white-collar workers, especially mothers, face working remotely in this new COVID-19 environment.

Ms. Drisana Rios worked as an account executive for an insurance brokerage firm. After the pandemic hit, Ms. Rios transitioned to working remotely in or around March 2020, so that she could take care of her two children, aged one and four. According to Ms. Rios, her supervisor did not approve of her choice to work from home and let her know it. Despite her informing him that afternoons worked best for business calls, because her children were napping, he continued to schedule her calls in the mornings. And, when her children could be heard in the background, he allegedly let her know it was unprofessional and advised her to “take care of your kid situation,” as well as made other “sexist statements” based on her being a mother. Shortly thereafter, she was unceremoniously terminated.

In Ms. Rios’s lawsuit – Wallace v. HUB International Insurance Services Inc., Case No. 37-2020-00019040 (CA Sup. Ct., Jun. 5, 2020)—which remains pending in San Diego Superior Court, she alleges gender discrimination, retaliation and wrongful termination.

While this particular case has garnered national media attention, stories like these are likely more prevalent than we would like to admit. The behavior of supervisors and management are, after all, a direct reflection of the views prevalent in society at large. So long as a sizable segment of company management does not alter its views on women, motherhood, childcare and work-life-balance more generally, discrimination will persist.



The 30th anniversary of Americans with Disabilities Act (“ADA,” for short) was July 26, 2020. To commemorate this milestone, the Equal Employment Opportunity Commission (“EEOC”) published a separate webpage with links to useful resources for workers and employees (as well as proactive, responsible employers). One particularly useful page lists what the EEOC considers important agency guidance on the ADA.

An Introduction to the ADA

This anniversary also presents a good opportunity to give a brief primer on the ADA and to place it in the context of the current COVID-19 pandemic.

The ADA, originally enacted in 1990 and amended several times since, is a civil rights law intended to prohibit discrimination against persons with disabilities and to provide them equal access and opportunity in various areas of our lives, including employment, government, transportation, telecommunications, and public spaces. The full text of the ADA, incorporated into the United States Code, can be found here.

Title I of the ADA protects disabled employees from discrimination in employment. Title V prevents retaliation against persons who assert (or assist those who assert) their rights under the ADA. The EEOC’s fact sheet about Disability Discrimination is a good starting point for further research, and you can find the ADA’s Titles I and V here.

The precise application of the ADA is more complicated, and you should consult a lawyer about your specific circumstances. But generally, the ADA will apply to you as an employee if:

  1. your employer has 15 or more employees; AND
  2. You have a qualifying disability.

The ADA defines a disability as:

(A) a physical or mental impairment that substantially limits one or more major life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment.

42 USC § 12102(1) (emphasis added). The ADA provides a non-exhaustive list of what includes a major life activity—and, the EEOC provides extensive guidance on the matter. It includes: “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” 42 USC § 12102(2)(A). And, the “operation of a major bodily function” is included in the definition of a major life activity. 42 USC § 12102(2)(B).

Assuming, for argument’s sake, you and your employer (or potential employer) qualify under the ADA, then the employer is prohibited from discriminating against you based on the disability in “job application procedures, the hiring, advancement, or discharge of [you], [your]compensation, job training, and other terms, conditions, and privileges of employment.” 42 USC § 12112(a).

And, discrimination includes, among other things, your employer failing to make reasonable accommodations for your “known physical or mental limitations,” so long as the employer cannot “demonstrate that the accommodation would impose an undue hardship on the operation of the business . . .” 42 USC § 12112(b) (emphasis added).

Recent Examples of Alleged Discrimination under the ADA

Now, with all that background in mind, how might the ADA apply in the real world?

  • Discrimination against the Deaf & Hard-of-hearing. In 2015 the EEOC sued FedEx, alleging that it was discriminating against persons who were deaf or hard-of-hearing and worked as package handlers. The EEOC claimed that FedEx failed to make reasonable accommodations for those persons in hiring, training, and the general work, for example by relying on a sound emitted when packages were scanned, and by giving trainings and conducting meetings that were included auditory materials that persons deaf or hard-of-hearing could not participate in. Although the case recently settled such that FedEx was not found by a judge or jury to be liable, this case shows that even large companies, with vast resources and compliance departments, can be credibly accused of engaging in discriminatory practices. If you want more information on this case, you can read more detailed summaries by the EEOC on the filing and the settlement or look up the actual case. EEOC v. FedEx Ground Package Sys., Inc., 15-cv-00256 (W.D. Penn., Febr. 25, 2015).
  • A new frontier, COVID-19 and the ADA? An interesting question that will likely be explored further through litigation is whether (and to what extent) COVID-19-related lawsuits can be successful under the ADA. Some cases have been brought under the ADA’s Title III, related to whether restaurants, nursing homes etc., “places of public accommodation,” are taking enough preventative measures to protect the public. And, there will undoubtedly be lawsuits filed by people who believe they were wrongfully terminated (under Title I and/or Title V) because they had COVID-19. But the real threshold question the courts will have to answer is whether COVID-19 qualifies as a “disability” under the ADA. We will keep you posted on that.

It is a pretty safe bet that, until there is a workable, widely distributed vaccine, better treatments for COVID-19, or both, our lives—including our work lives—will not go back to any semblance of normalcy. It also doesn’t take much imagination to predict that remote or teleworking (for office-type jobs) will remain widely available after the pandemic.

These changes to the workplace may usher in significant changes in our employment laws, including in workers’ rights to paid overtime.

The main law regulating overtime is the Fair Labor Standards Act (or “FLSA,” for short). If you are unfamiliar with it, the U.S. Department of Labor has excellent introductory resources for the uninitiated, including an overview page with links to various guides and even frequently asked questions related to the FLSA and COVID-19.

In addition to addressing minimum wage and child labor, the FLSA sets the requirements for paying qualifying workers overtime. Generally, a worker qualifies for overtime at one-and-a-half times the regular pay if the worker:

(1) does NOT belong to an exempt category (e.g., executive, administrative, and professional employees); AND

(2) has worked more than 40 hours in a given workweek.

Of course, as is often the case in the law, the devil is in the details, and you should contact the Department of Labor or an attorney to determine if you qualify. But the FLSA is no fringe provision. It affects a large majority of American workers. According to government figures, of the roughly 157 million employed in 2019, some 135 million of us are impacted by the FLSA.

So, with this primer out of the way, how will the COVID-19 pandemic affect overtime pay and the enforcement of the FLSA?

Employers, employer-side attorneys and employer friendly media appear to be hyperventilating about a “litigation trap,”  anticipating that workers who used to be exempt from overtime will seek to be  reclassified as non-exempt because they are now working from home, and their jobs and job duties have changed. We will see if this happens.

But I am worried about something more basic. With employers laying off substantial numbers of employees during this severe recession, there is a real danger that those employees who remain could be required to work longer hours to compensate for their fired colleagues and that, with companies tight on cash, many might try to cut  corners on paying lawful, required overtime.

This does not appear to be an idle musing on my part. In a stroke of supreme irony, the New York Department of Labor, strained by the massive numbers of unemployment claims it is processing these past months, is being accused by the New York State Public Employees Federation of underpaying its employees on overtime pay.

We will likely need to wait and see if this is an outlier or the beginning of a trend. But it would stand to reason that a massive recession could result in an outsize number of employers ducking, or attempting to duck, their responsibility to pay overtime.

Look in this space for an update on this situation in the coming months.

To state the obvious: yes, sexual harassment is not limited to men harassing women and yes, same sex harassment exists. Perhaps it is rarer, but it does happen. What almost certainly happens less often in 2020 than in prior decades—given the prevalence of corporate anti-discrimination policies, trainings, HR personnel and an increased cultural awareness—is brazen, unapologetic harassment, compounded by retaliatory termination. But that is what the Equal Employment Opportunity Commission (EEOC) alleges occurred in a lawsuit it filed on behalf of a terminated employee in central Florida in July.

And, since harassment is usually more subtle and less egregious than that alleged in this EEOC lawsuit, the lawsuit might be a good case study, a blueprint, a same sex sexual harassment archetype of the type of conduct employers must vigorously seek to prevent and avoid.

The complaint can be found here.

The EEOC alleges that Defendant Shelley’s Septic Tank (“Shelley’s”) and its owner, Mr. David Shelley, employed Richard Colon as a truck driver from February 2017 until May 2018. According to the EEOC, Shelley subjected Mr. Colon to a sexually hostile work environment, both through comments and physical contact.

The “unwelcome, sexually charged comments”, included Mr. Shelley:

  • calling Mr. Colon “buttercup” near daily;
  • calling Mr. Colon “pretty” after he shaved or trimmed his beard; and
  • “plac[ing] his hands in a diamond around his penis and [telling] Mr. Colon to ‘back up to this’.”

The EEOC also alleged Mr. Shelley engaged in “unwelcome, sexual conduct and physical contact” against Mr. Colon, including:

  • “stroking Mr. Colon’s arms and leg”;
  • “blowing kisses at Mr. Colon”;
  • “on one occasion, [using] a stick to poke Mr. Colon between his butt cheeks;” and
  • On one day “grabb[ing] Mr. Colon’s buttocks over his clothes and [running] his finger between Mr. Colon’s butt cheeks.”

Continue Reading Same Sex Hostile Work Environment and Retaliation: A Case Study

Can a School District’s Policy to Allow Transgender Students to Access Bathrooms Consistent With Their Gender Identity Be a Basis for a Sexual Harassment Claim?

The Transgender Student

Paul is a 17-year-old junior high school student in Louisville, Kentucky whose sex was female at birth, but who, since at least the age of five, has had a lasting, persistent male gender identity. Because Paul’s birth-determined sex is different from his gender identity, Paul experienced relentless bullying in school due to others’ unwillingness to accept him as a boy, causing him significant emotional distress as a child. Paul became extreme anxious and had frequent suicidal thoughts because of the social rejection that he experienced.   With the support of his parents, however, Paul underwent psychological therapy, which included social gender transitioning counseling, as well as physical interventions such as hormone therapy, in order to transition and present himself as male. Paul began adopting hairstyles and clothing to suit his gender identity and using sex-segregated spaces that corresponded to his gender-identity rather than his birth-determined sex. By the time Paul reached high school, his peers, for the most part, perceived him as male, though some did not. Several of his peers expressed that Paul made them feel uncomfortable.   When Paul tried out for and earned a starting position on the school’s male baseball team, most of his teammates, though not all, were accepting. This predominant, even if incomplete, acceptance, helped alleviate the anxiety and depression that Paul had experienced for years.   Paul had come to the realization that being accepted by everyone was simply unrealistic.

The School Policy

Since a year before Paul began high school, his high school has adopted a policy that allows students to access the bathroom and locker room consistent with their gender identity, rather than compelling them to use the bathroom or locker room that aligns with their birthsex. The school’s policy does not require that the student manifest behaviors or characteristics of the gender with which the student identifies in order to access a particular bathroom or locker room, but simply leaves it up to the student as to which one to use.

The Student Distressed by the School Policy

Tristan is an 18-year-old male senior at Paul’s high school, and one of the students on the baseball team who is visibly uncomfortable around Paul.   Tristan’s parents, and the pastor at Tristan’s church, preach it is morally wrong for a person to take hormones to alter body chemistry, particularly for purposes of conforming to a gender identity different from one’s birthsex. Tristan does everything possible to avoid any bathroom or locker room encounters with Paul, including by reducing his water intake, eating less at lunch, and using sweaty gym clothes under his regular school clothes so that he does not have to disrobe in front of Paul.   Tristan’s performance, both academically and on the baseball team, has declined since Paul joined the baseball team.

Tristan’s parents are infuriated that Paul is allowed to use the male bathrooms at the high school, and believe the school’s policy is violating Tristan’s privacy, and subjecting Tristan to unnecessary and unacceptable levels of distress. Tristan’s parents complained to the principal, the school district superintendent, and other school officials about the school policy, about Paul, and the resulting distress to Tristan. The school officials responded that Tristan needed to get past his feelings of discomfort and accept or ignore Paul, and that their only alternative would be to implement a policy that would make Paul feel equally, if not more, uncomfortable, and subject Paul to distress that was much graver than that experienced by Tristan.

The Lawsuit

Tristan and his parents, among other cisgender high school students and their parents, brought a lawsuit against the school district and school officials alleging, among other claims, that the school district’s policy of allowing transgender students to access bathrooms and locker rooms consistent with their gender identity constituted sexual harassment under Title IX of the Education Amendments of 1972. Title IX provides: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under an education program or activity receiving Federal financial assistance”. The U.S. Supreme Court has found a private right of action for sexual harassment under Title IX.

A school district may be liable for sexual harassment if the district was deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.  

Tristan and his parents seek emotional distress damages, and also seek an injunction to permanently eliminate the school’s policy and require that students access the bathrooms and locker rooms that align with their birthsex.

The Current State of the Law

            Two recent similar federal lawsuits, one filed in Pennsylvania, and the other in Illinois, sought relief under Title IX based on a school district’s policy to allow transgender students to access bathrooms and locker rooms consistent with the student’s gender identity rather than their birthsex. In the Pennsylvania case, Students and Parents for Privacy v. Sch. Dirs. of Twp. High Sch. Dist. 211, 377 F.Supp.3d 891 (N.D. Ill. 2019) , both the U.S. District Court and the Third Circuit Court of Appeals denied injunctive relief, and held that the Title IX claim was unlikely to succeed on the merits, reasoning that Title IX claims must be based on disparate treatment based on sex, while the School District’s policy was sex-neutral. Since the policy allows all students, both male and female, to use bathrooms and locker rooms that align with their gender identity, the policy does not discriminate based on sex, and therefore does not offend Title IX.

In Doe v. Boyertown Area Sch. Dist., 897 F.3d 518 (3rd Cir. 2018) , the U.S. District Court in the Illinois case reached a different conclusion.   That court concluded that the students pled a plausible sexual harassment claim against the school district under Title IX, although it did not reach the ultimate merits of that claim.

These cases suggest it is still an open question whether students can successfully sue a school district for sexual harassment under Title IX based upon a bathroom and locker room policy that allows transgender students to access the facilities that align with their gender identity.   The Pennsylvania case also suggests that a transgender student might have a viable claim under Title IX for a school district’s bathroom and locker room policy that requires all students to use the facilities that align with their birthsex, irrespective of the student’s gender identity, which could put school districts in the impossible position of being vulnerable to lawsuits regardless of what bathroom and locker room policy they adopt.

Federal law not only protects you from workplace discrimination during pregnancy, but also from discrimination after pregnancy. The Pregnancy Discrimination Act (“PDA”) of 1978 amended the Civil Rights Act to include discrimination “on the basis of pregnancy, childbirth, or related medical conditions.” 42 U.S.C. § 2000e(k). Some federal courts have held that breastfeeding or pumping milk at work constitutes a “related medical condition” protected from discrimination.

In the recent case of Mercado v. Sugarhouse HSP Gaming, L.P.a federal court in the Eastern District of Pennsylvania held that a casino employee adequately made out her hostile work environment claim based on discrimination for taking time at work to pump breast milk.

Three years after Rita Mercado started working as a table game dealer at the Sugarhouse Casino, she became pregnant with her first child. She requested reassignment to non-smoking areas of the casino, but was told that she had to start her shift at a smoking section while management attempted to find a new placement. A particular pit manager stated several times to Mercado that her requests for reassignment were “an inconvenience.” Upon return from maternity leave, she informed her colleagues that she would be breastfeeding her child and using the casino’s private lactation room known as the “Pump Room,” to express breast milk.

Mercado soon began to experience issues with both management and other staff members. When she asked one pit manager for permission to take a pump break, he asked how big Mercado’s breasts would get if someone refused to let her pump.”

Another pit manager stated that Mercado was “beautiful, if only [s]he could stop pumping.” Still another pit manager stated, “isn’t that boy done eating by now?” Others commented that she was pumping too much and that her son “should be on formula by now.” One time when Mercado was exiting the Pump Room, another dealer, Lauren Roche, commented, “is that all the milk you pumped? You look like you’re drying out.” She added, “I just want you to know you are jacking up everyone’s schedule.” Mercado reported everything to management, who investigated Roche’s comments. Roche was merely issued a written warning that was later scaled back to verbal feedback.

The incident that led Mercado to quit her job involved a security officer, Tequila Phillips, who physically approached Mercado and started yelling at her, refusing to give her the key to the Pump Room because Mercado was supposed to return the key every time, but never did. Mercado reported the incident to management, who merely stated that Ms. Phillips was “high strung.” The next day, Mercado called and resigned her position.

Mercado sued Sugarhouse Casino, Sugarhouse’s Director of Human Resources, and another employee in federal court claiming a hostile work environment and constructive termination in violation of the Civil Rights Act. The defendants attempted to move for summary judgment to get rid of the claims, but the federal court held that Mercado provided sufficient evidence of intentional discrimination because of her sex by attesting that she was subject to assorted discriminatory treatment regarding her pregnancy and subsequent need to pump breast milk that was severe or pervasive, and that led her to fell both unwelcome and unsafe.

Although Sugarhouse had an anti-harassment policy, there was ample indication that the policy was either ineffective or simply not followed, showing that Sugarhouse failed to exercise reasonable care to prevent and correct any harassing behavior.

In reaching its decision, the Eastern District of Pennsylvania relied on Hicks v. City of Tuscaloosa, Alabama issued by the Eleventh Circuit Court of Appeals on September 7, 2017, which held that

[t]he [Pregnancy Discrimination Act] would be rendered a nullity if women were protected during a pregnancy but then could be readily terminated for breastfeeding.”

In Hicks, a female police officer was discriminated against, because her request to be reassigned to a desk job after returning from maternity leave was rejected. She was trying to avoid using a restrictive ballistic vest all day that her doctor told her could cause breast infections leading to the inability to breastfeed.

If you believe you are experiencing or have experienced discrimination at your job because you are pregnant, breastfeeding, or experiencing any post-pregnancy medical conditions, you should contact an attorney who can advise you of your legal rights. We are here to listen to you and to discuss your options.



The Fifth Circuit Court of Appeals in O’Daniel v. Industrial Service Solutions, released on April 19, 2019, affirmed a lower federal court’s dismissal of a lawsuit that claimed harassment and discrimination based on her heterosexual orientation. The Fifth Circuit held that there were no protections for sexual orientation employment discrimination under the law.

Bonnie O’Daniel worked at Plant-N-Power Services under Cindy Huber, who became president when the company was involved in a merger with Industrial Service Solutions. Ted Simoneaux was the vice president. O’Daniel developed a fantastic relationship with Huber and Simoneaux, although she never personally met Huber, who worked in the Texas office. On April 22, 2016, O’Daniel made an incendiary Facebook post. O’Daniel referred to the post simply as “that of a man at Target wearing a dress and not[ing] his ability to use the women’s bathroom and/or dressing room with Mrs. O’Daniel’s young daughters.” The text of O’Daniel’s post stated: “So meet, ROBERTa! Shopping in the women’s department for a swimsuit at the BR Target. For all of you people that say you don’t care what bathroom it’s using, you’re full of shit!! Let this try to walk in the women’s bathroom while my daughters are in there!! #hellwillfreezeoverfirst.” The post included photos of the individual referred to in the post.

The post was shared with Simoneaux and Huber. Huber took personal offense to the post because she was a member of the LGBT community and felt the post wronged all members of the LGBT community, including herself. Huber told Simoneaux that she wanted O’Daniel fired, but Simoneaux convinced Huber not to, and instead required O’Daniel to take a sensitivity/diversity training course and advised her she could no longer recruit through social media. When O’Daniel failed to attend the course, Huber placed O’Daniel under her direct supervision and made rules that only applied to O’Daniel, such as modifying her schedule to conflict with her children’s schedules and putting her on a time clock. O’Daniel told Simoneaux that she felt she was being harassed and discriminated against because she was a heterosexual and advised she would be filing a formal complaint. A week later, Simoneaux told O’Daniel that the next week would be her last week. O’Daniel’s separation notice stated she was “fired due to unsatisfactory job performance.” However, when O’Daniel filed for unemployment benefits, she was denied due to employee misconduct. O’Daniel filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) on December 20, 2016, and received her right to sue letter shortly afterward.

O’Daniel then filed a lawsuit in federal court alleging violations of multiple anti-discrimination laws, wrongful termination, intentional infliction of emotional distress, discrimination claims under Title VII of the Civil Rights Act, and various Louisiana statutes. The court dismissed her lawsuit, and she appealed.

The issue on appeal was whether Title VII, which outlaws employment discrimination based on “race, color, religion, sex, or national origin,” also encompassed sexual orientation as a protected class. Several organizations such as the EEOC and the American Civil Liberties Union Foundation filed amicus curiae briefs, asserting that Title VII ought to encompass sexual orientation as a protected class.

The Fifth Circuit reasoned that while “sex” discrimination has been held to encompass discrimination based on sexual harassment or sexual stereotyping, the plain terms of Title VII does not cover “sexual orientation.” Acknowledging the evolution in other courts’ decisions interpreting Title VII to include sexual orientation, the Fifth Circuit decided to adopt the literal reading of the statute, which did not include sexual orientation as a protected class.


The concurring opinion pointed out that O’Daniel was not fired because she was heterosexual, but because of her Facebook post.

On April 22, 2019, the U.S. Supreme Court announced that it would resolve the split among the circuits as to whether sexual orientation is protected under Title VII of the Civil Rights Act, providing the first indication on how the U.S. Supreme Court’s new conservative majority will approach the rights of the LGBT community.

If you believe you have been or are being discriminated against at your job because of your sexual orientation, you should discuss your circumstances with an attorney who can advise you of your legal rights which, until the Supreme Court rules definitively, may be different depending on your location. Please let us know if we can help.



Inmediatamente después de graduarse de la escuela de leyes, Carl comenzó a trabajar como asistente del juez Jorge Martinez.  A Carl le encantaba su trabajo, el cual le permitía presenciar juicios civiles y criminales, hacer búsquedas legales, redactar opiniones legales para el juez, hacer recomendaciones legales, y conocer a otros jueces, asistentes legales, y abogados prominentes de la comunidad.  Después de varios meses de trabajar con el juez Martinez, él le presentó a su colega, la jueza Martha Stone, y Carl inmediatamente se sintió atraído hacia ella. Para sorpresa de Carl, la atracción fue mutua, y una noche después de consumir varias bebidas alcohólicas y pasar tiempo juntos en un evento de recaudación de fondos, Carl y la jueza Stone comenzaron una relación amorosa.  Al inicio, la relación fue extremadamente positiva: la atracción mutua era tanto física como intellectual. Los dos hablaban de casos y de asuntos legales, y la jueza Stone estaba impresionada con las capacidades de Carl. Pero al cabo de varios meses, el romance se volvió amargo, pues la jueza Stone creía que Carl estaba saliendo con otra mujer en secreto, lo cual provocó que la parte oscura de la jueza saliera a flote. La jueza Stone no solo terminó con la relación amorosa en forma abrupta, si no que se encargó de hacerle la vida imposible a Carl.  

El acoso comienza: contactos no deseados y fotos en el baño

En varias ocasiones cuando la jueza Stone conversaba con el juez Martinez y Carl estaba cerca, ella le preguntaba al juez Martinez como él podía manejar sus casos sin asistentes competentes. Incluso le mencionó varias veces que ella conocía a por lo menos una docena de abogados recién graduados de la escuela de leyes que estaban mucho más capacitados que Carl para asistirlo.  En varias ocasiones después de conversar con el juez Martinez, la jueza Stone salió de la oficina del Juez Martinez, entró a la oficina de Carl, y se le acercó en una forma muy insinuante, la cual Carl consideró que era inapropiada y que tenía la única intención de intimidarlo.  Un día, afuera del baño de hombres, Carl encontró una foto de él que había sido tomado por la jueza Stone. Debajo de la foto había un subtítulo que decía

Los que aquí laboramos solo buscamos la verdad. Carl: no queremos tus manos pequeñas en ningún lugar cerca de nuestros calzones.”

Desde aquel día, todos los jueces y el personal de la corte rechazaron a Carl.  Un día, cuando el juez Martinez no estaba en su oficina, la jueza Stone fue a la oficina de Carl y le rogó que volviera con ella, con la condición de que él le prometiera serle fiel. Carl le dijo en forma cortés que él ya no deseaba una relación con ella, y que no se sentía cómodo retomándola en vista de los eventos más recientes.  La jueza Stone salió de prisa de la oficina sin decir una palabra.  Después de eso, el juez Martinez comenzó a tratar a Carl de forma despectiva, como nunca antes, encontrando faltas en todos los proyectos de investigación y escritos de Carl, y ridiculizando cada una de sus recomendaciones legales.  El trabajo soñado de Carl era ahora una pesadilla.  

Carl es despedido después de presentar una queja a Recursos Humanos

Carl presentó, a regañadientes, una queja sobre la jueza Stone al departamento de Recursos Humanos. El gerente de Recusos Humanos escuchó su queja de una forma cortés, pero le dijo que la jueza Stone también había presentado una queja en Recursos Humanos en contra de él, alegando que Carl estaba acosándola sexualmente.  El gerente le preguntó que si de verdad él esperaba que su historia fuera creíble, y le sugirió que renunciara voluntariamente.  Carl salió de la oficina de Recursos Humanos sorprendido y desilusionado, pero juró que pelearía su caso.  ¿Cómo podría Carl ser un abogado efectivo para otros en el futuro si no podía hacer valer sus propios derechos?  Carl se rehusó a renunicar y fue despedido a la brevedad.  Carl contrató a un abogado e inició una acción alegando que fue expuesto a un ambiente de trabajo hostil, y que su despido fue en represalia por quejarse sobre el acoso de la jueza Stone hacia él.

¿Cuándo puede el acoso sexual después de una relación íntima fallida constituir acoso sexual viable bajo el Título VII de la Ley de Derechos Civiles?

Para establecer una acción de acoso sexual basada en un ambiente de trabajo hostil bajo el Título VII de la Ley de Derechos Civiles de los Estados Unidos, el empleado debe de alegar y probar que el acoso en el centro de trabajo fue basado en el sexo del empleado. El hecho de que una relación amorosa fallida de pie a un cierto acoso de parte de un empleado hacia otro en el lugar de trabajo, no necesariamente se torna en un caso de acoso sexual en el lugar de trabajo.  Es más, las cortes han determinado en el pasado que el acoso entre compañeros de trabajo no es considerado un acoso sexual cuando el mismo se desarrolla a partir de una relación amorosa fallida.  Sin embargo, una relación amorosa fallida entre un acosador y una víctima no protege al acosador de ser encontrado culpable de acoso sexual.  Por ejemplo, en un caso donde una profesora acosó a otro profesor después de una relación amorosa fallida, donde la profesora hizo amenzas tanto físicas como verbales en contra de la esposa e hijo del profesor, y tambien lo acosó en frente de sus colegas y estudiantes, la corte determinó que el acoso de la profesora no constituyó acoso sexual bajo el Título VII de la Ley de Derechos Civiles, debido a que el acoso no fue motivado por el sexo del profesor si no por el odio de la profesora causado por su relación amorosa fallida; el sexo masculino del profesor fue simplemente una coincidencia. Succar v. Dade County School Bd., 229 F.3d 1343 (11th Cir. 2000).

En otro caso, cuando una empleada fue despedida en represalia por ser víctima de un acoso en parte sexual, la empleada sí tuvo una acción viable bajo el Título VII de la Ley de Derechos Civiles, ya que las insinuaciones sexuales del agresor, las cuales hicieron sentir incómoda a la víctima, junto con sus solicitudes de reiniciar una relación amorosa previa, fueron suficientes para que la empleada tuviera una opinión basada en hechos objectivos de que ella era una víctima de acoso sexual. Lipphardt v. Durango Steakhouse of Brandon, Inc., 267 F.3d 1183 (11th Cir. 2001).

En el caso de Carl, él tiene suficientes bases para establecer una acción por represalia bajo el Título VII de la Ley de Derechos Civiles, pues fue despedido después de que reportara a Recursos Humanos el acoso sexual de parte de la jueza Stone, la cual no solo se le insinuó en varias ocasiones de una manera sexual e intimidante, pero también le pidió que reiniciaran su relación amorosa – a lo cual él se negó – y publicó una foto de él en el baño con una leyenda degradante.  A pesar de que Carl no trabajaba directamente para la jueza Stone, ella tiene una posición de considerable poder con relación a Carl, y este hecho es muy similar a un caso recientemente radicado sobre un juez en el estado de Massachusetts, donde el juez renunció a su cargo después de que se radicara la demanda por acoso sexual en su contra.  

¿Ha experimentado usted acoso sexual como resultado de una relación amorosa fallida que comenzó bajo mutuo consentimiento?  Si es así, nosotros podríamos ayudarlo.









Happy International Women’s Day! This year’s theme is building a gender-balanced world. The #BalanceforBetter campaign will continue for the rest of 2019 to inspire women and men to strive for a “gender-balanced boardroom, a gender-balanced government, gender-balanced media coverage, a gender-balance of employees, more gender-balance in wealth, gender-balanced sports coverage . . . .” Better balance between the genders is a timely theme because sexual harassment is a symptom of the power imbalance between the genders. The Institute for Women’s Policy Research found that working in a male-dominated environment and working in a setting with significant power differentials are two of several employment situations associated with high rates of sexual harassment and assault. For example, 1 in 4 active duty service women experienced sexual harassment or gender discrimination.

The power imbalance shows up in all types of workplace scenarios. If you haven’t watched the RAINN #ThatsHarassment videos, I recommend you watch them. The videos are based on real incidents of sexual harassment in a law firm, a bar, a photo shoot, and a TV show set. When I first saw these videos, the common thread I noticed wasn’t just the sexual harassment, it was the balance of power. The harassers in these videos had significant advantages over their victims in these scenarios. The bartender gets harassed by a male co-worker tasked with training her on the first day of work, the young model was pushed past the boundaries of what’s appropriate in a room full of people who didn’t stop the older and experienced photographer, the new junior employee alone in the office with the boss, and the costume dresser dealing with a famous actor’s bad behavior were all in vulnerable positions when the harassment occurred. Each one of these victims may have asked themselves,

If I report this, will I lose my job?”

A common question that comes up when a sexual harassment story hits the news is “why didn’t she report it sooner”? Fear of losing her job is a big reason, being passed over for a promotion, losing her credibility, and being blackballed because she spoke up against an abuser in a powerful position are also reasons women stay quiet. If more women occupy the same positions as the men in the #ThatsHarassment videos and in leadership positions, we can hope for more respectful workplaces that bring full equality to women. Until then, the same power imbalance in American culture will continue to lend itself to situations where powerful men will harass vulnerable women.

If you think you have been the victim of sexual harassment, you should discuss your story with an attorney who can guide you. Our attorneys can assist you at any stage. Please contact us to set up a confidential consultation.