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Today, we turn our attention to the recent case of Wiggins v. Universal Prot. Serv., LLC, No. 23-1054, 2023 WL 5014082 (3d Cir. Aug. 7, 2023), which has some very good facts that should support a gender discrimination and retaliation, as well as a possible religious discrimination based on a failure to accommodate. Despite the potentially very good facts, problems arose that handed the victory to the employer. All the problems started with a point identified in the first four words of the United States Court of Appeals for the Third Circuit’s opinion: “Pro se appellant Michael Wiggins…”

“Pro se” is a Latin term that means representing oneself in a legal proceeding without the assistance of an attorney. It essentially refers to someone acting as their own lawyer. This is a bad idea. In fact, it is a very bad idea.

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Let’s look at the case.

In August 2019, Wiggins became employed by Allied Universal and started working as a security officer at Episcopal Hospital. Wiggins identified a series of actions by his site supervisor at Episcopal Hospital, Lola Watson, which may constitute violations of Title VII of the Civil Rights Act of 1964.

What is disparate gender discrimination?

Title VII of the Civil Rights Act of 1964 is a federal law in the United States that prohibits discrimination on the basis of various protected characteristics, including gender, in employment practices. Disparate treatment discrimination under Title VII occurs when an employer treats an employee or group of employees differently because of their gender. This typically occurs when a manager or supervisor makes assumptions based on the gender of employees. To demonstrate disparate treatment, an employee usually compares their treatment to that of someone of the opposite gender who is similarly situated in terms of job duties, qualifications, and other relevant factors. If the employee can show that a similarly situated person of the opposite gender received better treatment, it can strengthen their case.

Wiggins asserts that in the fall of 2019, Watson engaged in preferential scheduling practices, assigning sitting shifts predominantly to female security officers while designating male security officers for standing shifts. Such a practice, if substantiated, would amount to gender-based discrimination and a violation of Title VII’s provisions against sex-based employment practices. The supervisor assumed based on gender that men would be better qualified and more physically capable of handling standing shifts.

If a court determines that disparate gender treatment discrimination has occurred, remedies can include back pay, front pay, reinstatement, promotion, compensatory damages (for emotional distress), punitive damages (in cases of intentional discrimination), and attorneys’ fees.

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Are employees protected if they complain about gender discrimination?

Yes. Complaining about or opposing gender discrimination is a protected activity. Title VII not only prohibits discrimination based on protected characteristics like gender, but it also includes provisions that protect employees from retaliation when they engage in activities protected by the law. Retaliation occurs when an employer takes adverse actions against an employee for asserting their rights under Title VII or for participating in proceedings related to Title VII violations. Adverse actions can include, but are not limited to, wrongful termination, demoting, disciplining, harassing, intimidating, or otherwise treating the employee unfavorably in terms of their employment. Essentially, any action taken by the employer that would discourage a reasonable employee from engaging in that or other protected activities.

In this case, Wiggins complained about gender discrimination when Account Manager Steven Pease approved a shift swap between a female security guard and Wiggins, which gave her Wiggins’ sitting shift and required him to stand. In response to Wiggins’s opposition to the shift swap and his subsequent complaint, Wiggins faced disciplinary action from Pease for what was termed “unprofessional conduct” for complaining. Additionally, thereafter Watson assigned Wiggins exclusively to standing shifts, and even scheduled him for a Sunday shift despite his known unavailability due to religious commitments.

This raises concerns about the appropriateness of penalizing an employee for raising objections to practices that could likely contravene Title VII protections. Such retaliation certainly would likely employees from voicing legitimate concerns regarding discrimination in the workplace, creating a chilling effect on the exercise of their rights.

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Can I get a religious accommodation to attend church?

Under Title VII, employers are generally required to provide reasonable accommodations for an employee’s sincerely held religious beliefs, practices, or observances unless doing so would cause an undue hardship to the employer’s business operations. This can include accommodating an employee’s need to attend religious services, such as attending church. What is considered reasonable can depend on factors such as the nature of the job, the size of the employer, and the potential impact on business operations. Accommodations might include adjusting work schedules, allowing time off for religious observances, or providing an alternative arrangement that doesn’t conflict with religious practices.

Given that Allied Universal had been accommodating Wiggin’s schedule to attend church up to that point, it should be viewed as a reasonable. Taking away a reasonable religious accommodation is not only religious discrimination but also likely further retaliation as it would clearly discourage reasonable employees from complaining about gender discrimination.

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Why is it important to hire an employment attorney?

Before pursuing a lawsuit for employment discrimination under Title VII, an individual must file a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) within a specified time frame. Employees generally have 180 days from the date of the alleged discrimination to file a charge with the EEOC. This time limit can be extended to 300 days if your state or local jurisdiction has its own anti-discrimination laws and a work-sharing agreement with the EEOC. No other extensions are available.

Adding 300 days from September 2019 takes us to June 2020. Wiggins filed his EEOC complaint on January 5, 2021. Game over.

Because Wiggins failed to timely consult an attorney for his employment discrimination claims, he lost the right to sue for gender and religious discrimination and retaliation.

Promptly consulting an employment attorney when confronted with workplace discrimination is vital. Time-sensitive filing requirements, evidence preservation, protection from retaliation, expert guidance, and negotiation skills are key reasons. Deadlines for administrative complaints are strict; legal counsel ensures adherence. Swift action secures evidence, preventing its loss or alteration. Legal involvement deters employer retaliation against those seeking assistance. Attorneys offer expertise in nuanced employment laws, assessing your case’s viability and devising effective strategies.

Spitz, The Employees Law Firm should be your choice for employment-related legal needs, offering a history of success, client-centered service, and a unique “No Fee Guarantee.” With a specialized focus on employment law, the firm’s track record showcases their commitment to securing favorable outcomes for clients in workplace-related cases. Spitz’s client-centric approach involves attentive listening, thorough case evaluation, and tailored legal strategies to address each client’s specific circumstances. Further setting Spitz apart is their “No Fee Guarantee.” This innovative feature eliminates financial barriers for clients. The firm covers legal costs upfront and only charges fees if they achieve a successful resolution. This showcases their confidence in winning cases and provides clients with much-needed financial relief. (Read: What is the Spitz No Fee Guarantee?).

So, it would be best to call the right attorney to schedule a free and confidential consultation.

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