EEOC-Initiated Litigation - 2022 Edition

24 | EEOC-Initiated Litigation: 2022 Edition © 2022 Seyfarth Shaw LLP The court also analyzed whether, under Botstock v. Clayton County , the plaintiffs’ policies against bisexual conduct, concerning certain sexual activities and dress codes, prohibiting hormone treatments and genital surgery, and regarding sex-specific restrooms, violated Title VII. The court first concluded that the proper test to be applied was “favoritism, plus blindness to sex if the secondary trait is homosexuality or transgenderism.” 159 The court reasoned that the “simple favoritism test” could not be “fully recognized with the Supreme Court’s analogies, and neither can the blindness test standing alone given Botstock’s articulation of the standard.” 160 The court concluded that the polices against bisexual conduct “inherently target[] sex” and therefore violated Title VII, to the extent that an “individual who is bisexual inherently identifies as homosexual to some extent, even if they also identify as heterosexual, because bisexuality is some combination of the two orientations.” 161 The court similarly held that the policies prohibiting hormone treatments and genital surgery violated Title VII since they would only function to discriminate against individuals with gender dysphoria . 162 As to the policies regarding certain sexual activities, dress code, and sex-specific restrooms, the court found that such policies comported with Title VII because they applied evenly to heterosexual and homosexual activity, did not “treat one sex worse than the other,” and therefore did not discriminate “because of sex.” 163 The EEOC’s focus on religious accommodation cases has been met with some recent setbacks. For example, in EEOC v. Walmart Stores East LP , 164 the U.S. District Court for the Western District of Wisconsin dismissed a Title VII claim based on an alleged failure to offer a religious accommodation due, in part, to the charging party’s failure to cooperate with the employer regarding the proposed accommodation. On March 31, 2021, the Seventh Circuit affirmed the District Court’s decision . 165 The Seventh Circuit held that: “[Employer] made an offer that could have put [charging party] in a management job without working on the Sabbath, but he wanted to be an assistant manager and nothing less. Unless Title VII entitles [charging party] to that position, Walmart must prevail.” 166 The EEOC suggested that the employer could have allowed the charging party to trade shifts with other assistant managers or assign him to a shift that would not require him to work Fridays or Saturdays. But in either case, that would have forced other assistant managers to take more shifts on weekends, which “would not be an accommodation by the employer , as Title VII contemplates. This proposal would thrust on other workers the need to accommodate [charging party’s] religious beliefs. ” 167 Because the EEOC’s proposed accommodations would either place more than a “slight burden” on the employer or shift that burden onto other employees, the Seventh Circuit affirmed the lower court’s decision. 2. Developments In The EEOC’s Approach To National Origin Discrimination National origin discrimination has become an increasing target of EEOC enforcement activity. The EEOC has expressed in a number of places that it is concerned about the impact that global phenomena can have on worker relations in the United States. Historically, those concerns have been focused on how global terrorism and unrest in the Middle East could lead to discrimination against Muslim or Sikh employees or those of Middle Eastern or South Asian descent, or how illegal immigration issues could give rise to discrimination against Mexican or South and Central American workers. The COVID-19 pandemic could change this focus somewhat. An outbreak of a deadly pandemic that had its origin in China has court also found that the institution was “engaged in overt expression regarding tis religious views of homosexuality and transgender behavior.” Id. at *28. 159 Id. at 31. 160 Id. (citing Bostock v. Clayton Cty., Georgia , 140 S. Ct. 1731, 1741 (2020) (“[I]f changing the employee's sex would have yielded a different choice by the employer—a statutory violation has occurred.”). 161 Id. 162 Id. at 35. 163 Id. at 34-35. 164 EEOC v. Walmart Stores East LP , No. 18-CV-804, 2020 WL 247462, at *7 (W.D. Wis. Jan. 16, 2020). 165 EEOC v. Walmart Stores East LP , 992 F.3d 656 (7th Cir. 2021). 166 Id. at 659. 167 Id. (emphasis in original).