Thursday, March 16, 2017

11th Circuit Holds Sexual Orientation Discrimination is Not Actionable Under Title VII

As of today's date, there is currently no specific legislation that protects against discrimination in the workplace against individuals on the basis of their sexual orientation.  Legislation like the Employment Nondiscrimination Act ("ENDA") has gone nowhere for over two decades, which has left it to the states to enact protection, which Wisconsin has done under the Wisconsin Fair Employment Act ("WFEA") in protecting sexual orientation against discrimination in the workplace (though it does not protect against gender identity).  With a recent decision out of the 11th Circuit, they become the 9th circuit to hold Title VII does not prohibit discrimination on the basis sexual orientation which means the Supreme Court of the United States will have to hold otherwise, which it is highly unlikely to do with the current makeup of the Court.

FACTS

The plaintiff, Jameka K. Evans, worked for the defendant Georgia Regional Hospital, as a security officer from August 1, 2012 until October 11, 2013, when she left voluntarily.  According to the pro se complaint she filed, she alleges that during her time as a security officer with the hospital she was denied equal pay for work, harassed, and physically assaulted or battered, discriminated against on the basis of her sex and targeted for termination for failing to carry herself in a "traditional woman[ly] manner."  She claims that, although she is a gay woman, she did not broadcast her sexuality but that it was "evident" that she identified with the male general, because of how she presented herself--"(male uniform, low male haircut, shoes, etc.").

A magistrate judge issued a report and recommendation ("R&R") wherein Evans was granted leave to proceed in forma paupers, denied her request for appointment of counsel, and sua spent screened her complaint.  Among other things, the magistrate judge reasoned that--based on case law from all circuits that had addressed the issue--Title VII "was not intended to cover discrimination against homosexuals."  With regard to Evan's claim of discrimination based on gender non-conformity, the magistrate judge concluded that it was "just another way to claim discrimination based on sexual orientation," no matter how it was otherwise characterized.  Additionally, the magistrate judge recommended dismissal of the retaliation claim on the basis that Evans failed to allege that she opposed an unlawful employment practice, given that sexual orientation was not protected under Title VII.  The magistrate judge recommended dismissing all of Evan's claims, with prejudice, without allowing her to leave to amend, because she pled no actionable claim nor seemed likely to be able to do so.

Both the Lambda Legal Defense and Education Fund, Inc. and Equal Employment Opportunity Commission ("EEOC") filed amicus curiae briefs in support of Evan's objections to the R&R.  On appeal to the 11th Circuit, Evans argues that the district court erred in dismissing her claim that she was discriminated against for failing to conform to gender stereotypes, because a LGBT person may properly bring a separate discrimination claim for gender non-conformity in the 11th Circuit.  Evans also argued that, contrary to the district court's assertion, sexual orientation discrimination is, in fact, sex discrimination under Title VII.  Evans further argued that the district court erred in concluding that she did not meet the requirements to bring a retaliation claims, because a plaintiff can establish a prima facie case of unlawful retaliation if there is a good faith, reasonable belief that the employer was acting unlawfully.  Evans also argued that she should have been allowed to amend her complaint.

Plaintiff's Non-Conformity Claim

Evans argued that the district court erred in dismissing her claim that she was discriminated against for failing to conform to gender stereotypes, as the district claimed that this was just another way to claim discrimination based on sexual orientation.  The 11th Circuit held that the district court erred in making this conclusion.

The 11th Circuit held that, even though discrimination based on gender non-conformity is actionable, Evans' pro se complaint nevertheless failed to plead facts sufficient to create a plausible inference that she suffered discrimination.  Thus, the 11th Circuit held that Evans was entitled an opportunity to amend her complaint one time unless doing so would be futile.

Discriminated based on failure to conform to a gender stereotype is sex-based discrimination.  In Glen v. Brumby, 663 F.3d 1312, 1317 (11th Cir. 2011), the 11th Circuit held that discrimination against a transgender individual because of gender-nonconformity was sex discrimination.  In that decision, the 11th Circuit stated that, "[a]ll persons, whether transgender or not, are protected from discrimination on the basis of gender stereotype," and they reasoned that, because those protections apply to everyone, a transgender individual could not be excluded.  Accordingly, the district court's order dismissing Evans' gender non-conformity claim was vacated and remanded with instructions to grant Evans leave to amend her claim.

Sexual Orientation Discrimination Under Title VII

The 11th Circuit shut this argument down immediately:
Evans next argues that she has stated a claim under Title VII by alleging that she endured workplace discrimination because of her sexual orientation.  She has not.  Our binding precedent forecloses such an action.  Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979) (In Bonner v. City of Prichard, 61 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this Court adopted was binding precedent all decisions of the former Fifth Circuit handed down prior to close of business on September 30, 1981) ("Discharge for homosexuality is not prohibited by Title VII....").  
The EEOC argued that the statement in Blum regarding discharge for homosexuality is dicta and not binding precedent, but the 11th Circuit disagreed.  The EEOC also argued that the Supreme Court decisions in Price Waterhouse v. Hopkins and Oncale v. Sundower Offshore Servs., Inc. support a cause of action for sexual orientation discrimination under Title VII and, again, the 11th Circuit disagreed stating that the fact that claims for gender non-conformity and same-sex discrimination can be brought pursuant to Title VII does not permit them to depart from Blum as they held the Supreme Court decision must be "clearly on point."  The 11th Circuit then noted all of the other circuits that have held sexual orientation discrimination is not actionable under Title VII:  1st, 2nd, 3rd, 4th, 6th, 7th, 8th, and 9th (now the 11th).  

Plaintiff's Retaliation Claim

The 11th Circuit dismissed this portion of the appeal on technical grounds without addressing the merits of whether she could establish a prima facie case of unlawful retaliation if there was a good faith, reasonable belief that the employer was acting unlawfully because they held they will not generally review a magistrate judge's findings or recommendations if a party failed to object to those recommendations, which Evans failed to do.  Consequently, the 11th Circuit stated, they will only review a waived objection, for plain error, if necessary in the interests of justice and review for plain error "rarely applies in civil cases."  The Court held nothing in the record suggested that plain error review was appropriate in this appeal.

The case is Evans v Georgia Regional Hospital, No. 15-15234 (March 10, 2017).

Wednesday, March 1, 2017

7th Circuit Issues Recent Decision Addressing Self-Serving Affidavits in Summary Judgment

The Court of Appeals for the 7th Circuit recently issued a decision in a claim filed under the Rehabilitation Act where a former Wisconsin Department of Health Services employee, Joyce Whitaker, filed suit after she was fired for failing to return to work after several strings of leaves of absences, claiming an accommodation of "finite, unpaid leave" should have been given instead of termination.

To prevail on a claim under the Rehabilitation Act, the plaintiff had to show:  (1) she is disabled within the meaning of the statute; (2) that she was otherwise qualified for the job in question; (3) that she was discharged or subject of other adverse action solely because of her disability; and (4) the employment program of which her job was a part received federal financial assistance.  An employee is "otherwise qualified" when she is capable of performing the "essential functions" of the job with or without a reasonable accommodation.  The Court found that Whitaker could not establish that she could perform the essential functions of her job, which makes her Rehabilitation Act claim fail.

The key take away from this case, however, is the 7th Circuit discussion of the evidence Whitaker offered to show she was an "otherwise qualified" employee and her use of a "self-serving affidavit," which the 7th Circuit has held can "indeed be a legitimate method of introducing facts on summary judgment."  The Court emphasized the point that they "have taken pains to reject 'the misconception that evidence presented in a 'self-serving' affidavit is never sufficient to thwart a summary judgment motion."  However, the Court found Whitaker's self-serving affidavit/declaration was insufficient to avoid summary judgment because it did not provide sufficient evidence to allow a trier of fact to find that, if the Department had given her additional unpaid leave, she likely would have been able to return to work on a regular basis.  The Court noted that, while Whitaker said she was receiving treatment, she did not explain the effectiveness of this treatment or the medical likelihood that it would enable her to return to work regularly.  Thus, summary judgment was affirmed.

The case is Whitaker v. Wisconsin Department of Health Services, No. 16-1807 (7th Cir. 2017)

Tuesday, February 14, 2017

Employee Fired for Being Associated with "Too Much Drama" Allowed to Proceed to Trial on Hostile Work Environment and Retaliation Claims

In somewhat of an unusual case, a former employee, Rochelle Baez, will be allowed to proceed on her claims of retaliation and hostile work environment claims under Title VII and accompanying state of New York law against her former employer, Ann Fontaine USA, Inc. after she was terminated soon after complaining of fellow coworkers spreading a "rumor" that she attended a meeting with the company's president and CEO wearing a "revealing shirt and no bra."  Though the New York district court opined that the case is weak and that this case is "not the type with which the relevant discrimination statutes are most concerned," the court also acknowledged that if the comments "on bra-less attendance at a meeting were made by a man, plaintiff's case would be much stronger."  The court held that there is no legal reason why the gender or number of speakers alters the analysis.

What ultimately carried the day for Baez in the face of a few legitimate articulated reasons for terminating her employment by the defendant (i.e., her poor management of an employee at a Bal Harbor store, and problems opening of the Madison Avenue store in NYC), is the fact that the president listed the "drama" as a reason for her termination and the fact she was terminated in close temporal proximity to her complaint about the rumor being spread about her.  This, according to the court, was sufficient to create a genuine dispute of material fact as to whether her complaint was a but-for cause of her termination.

The case is Baez v. Anne Fontaine USA, Inc. et al, No. 1:2014cv06621 - Document 72 (S.D.N.Y. 2017).

Friday, February 10, 2017

Papa John's Settles Disability Discrimination Case with EEOC for $125,000 After Firing Employee Who Used a Job Coach

A Papa John's location in Farminton, Utah has agreed to settle a disability discrimination lawsuit filed against them by the Equal Employment Opportunity Commission ("EEOC") under the Americans with Disabilities Act ("ADA") when they fired an employee who had down syndrome after an operating partner visited the location and saw the employee working with the assistance of the job coach.

Under the ADA, the use of a job coach is considered a reasonable accommodation unless the employer could have shown an undue hardship.  However, the employee worked for more than 5 months with the job coach before being terminated.  For more on the settlement, see the EEOC's press release here.

Wednesday, February 1, 2017

EEOC Settles Mandatory Flu Shot Case for $300,000

Late last month the Equal Employment Opportunity Commission ("EEOC") announced that it settled yet another religious discrimination case filed against a hospital in Pennsylvania, Saint Vincent Health Center, that had a mandatory flu shot policy that did not approve six (6) employee's request for religious accommodation to not have to receive the vaccine, who were then fired when they did not receive the shot.  The class of 6 individuals will receive $300,000 constituting back pay and compensatory damages.  

Employers may have mandatory flu shot policies, but Title VII requires reasonable accommodation for religion.  Reasonable accommodation means granting religious exemptions to employees with sincerely held religious beliefs against vaccination when such exemptions do not create an undue hardship on the employer's operations.  In this case, employees who received an exemption were required to wear a face mask while having patient contact during flu season in lieu of receiving the vaccination. Employees who refused the vaccine but were not granted an exemption by the Health Center were fired, according to EEOC's lawsuit. From October 2013 to January 2014, EEOC alleged, the six employees identified in its complaint requested religious exemptions from the Health Center's flu vaccination requirement based on sincerely held religious beliefs, and the Health Center denied their requests. When the employees continued to refuse the vaccine based on their religious beliefs, the Health Center fired them. According to EEOC's lawsuit, during this same period, the Health Center granted fourteen (14) vaccination exemption requests based on medical reasons while denying all religion-based exemption requests.

These 'flu vaccine cases' have been popping up a lot lately as many employers have begun requiring flu shots for various reasons.  Because a lot of employers are not handling them properly due to lack of understanding of what Title VII requires, it has led to violations being found and then subsequent large settlements.  These cases have also presented unique issues as in one case, a court ruled that the practice of veganism — not consuming any animal products — might be considered a religion.  It does appear some Courts, and certainly the EEOC, are taking fairly liberal and strict stances when it comes to whether an individual seeking a religious accommodation has a sincerely held religious  belief which requires accommodation as the EEOC's consent decree in the Pennsylvania hospital case states the hospital cannot deny an employee’s exemption request just because it disagrees with an employee’s belief or because it feels the claimed religion is unreasonable, inaccurate, unfounded, illogical, or inconsistent with the hospital’s views.

For more on the settlement, see the EEOC's press release here.

EEOC's Largest Case Alleging Systemic Age Discrimination Against Texas Roadhouse Awaits Jury Verdict

Closing arguments just concluded this past Monday in a very high-profile and controversial case the Equal Employment Opportunity Commission ("EEOC") brought against a nationwide chain of steakhouses, Texas Roadhouse.  The suit and trial that followed is important for a couple reasons.  For one, it's the largest age discrimination case the EEOC has ever brought, secondly, it's a systemic complaint it brought in which they did not wait for an individual(s) to file a charge of age discrimination before they brought the suit.  The EEOC brought the suit in a rare move after they concluded their own investigation into alleged discriminatory hiring practices based on age.  Texas Roadhouse's lawyers unsuccessfully argued against the EEOC's ability to bring such a suit, but Congress provided this authority under the law, though it's rarely evoked.

ProPublica.org has a very thorough article on the case and trial, which may receive a verdict any day now.

Tuesday, January 31, 2017

Wisconsin Lawmakers to Vote on PLA Bill on Thursday

As I reported on yesterday on the blog, a bill is being considered in Wisconsin that would prohibit local governments from using project labor agreements (PLA's) as part of the bidding process on public construction projects.  Wisconsin lawmakers on the Senate’s Committee on Labor and Regulatory Reform are scheduled to vote on that bill this Thursday.    Because this is yet another attack on unions, many lawmakers are voicing opposition, including Milwaukee Alderman Cavalier Johnson.

I will be following the progress of this proposed bill and report more on it as it develops. 

If An Employee Fails to Return to Work from Leave, Can An Employer Label it a "Voluntary Resignation"?

A very popular and common way employer's separate an employee from their employment is by labeling certain circumstances a "voluntary resignation."  For example, employer's will issue employee's letter stating that if they do not comply with or do certain things, like, return to work, they will be deemed a "voluntary resignation."  This very often becomes a focus of subsequent litigation as a recent case out of California highlights as a California court of appeals reversed a lower court's grant of summary judgment for an employer finding that an employee's communications while they were on leave could be deemed to be a reasonable request for additional leave.

In Leticia Bareno v. San Diego Community College District, the plaintiff had a history of being disciplined by the defendant for performance issues.  In early 2013, the plaintiff was disciplined and issued a 3-day suspension from work without pay.  On the date the plaintiff was to return to work, she notified the defendant of her need for medical leave in the form of a note from her doctor.  From The National Law Review article on the case:
On the date her original leave was set to expire, a Friday, Plaintiff emailed the College a second doctor’s note extending her leave an additional week. The College strongly denied ever receiving that email.  On that same date, the Plaintiff sent the College another email – which was received – stating that she was out on a medical leave and would notify all concerned of her return but provided no further detail of her return date or supporting documentation from her doctor. 
Plaintiff continued to be absent from work the following work week (the “disputed week”). As a result, at the end of the disputed week, the College mailed Plaintiff a letter to inform her that her five consecutive unauthorized absences constituted a voluntary resignation.  As soon as the Plaintiff received the College’s letter, she immediately attempted to contact the College and provided the College with medical documentation supporting the medical necessity of her absences, but the College refused to reconsider.
Thus, the defendant attempted to do what a lot of employers do and give a strict directive that, if not followed, would allow them to separate the employee from their employment and label it a "quit."  Because the plaintiff was clearly trying to obtain medical leave to allow her to not return on her scheduled return date, it doomed the defendant on appeal.  The defendant in this case should have ascertained whether the employee was able to pursue valid leave instead of ignoring the plaintiff's communications and automatically separating when she did not return following her 3-day suspension.

Monday, January 30, 2017

Wisconsin Considering Bill That Would Prohibit Local Governments from Using Project Labor Agreements As Part of Bidding Process for Public Construction Projects

A bill has been proposed and hearings held in both the Assembly and Senate in Wisconsin whereby local governments would be prohibited from using Project Labor Agreements (PLA’s) as part of the bidding process for government construction projects like schools, libraries and jails.  Proponents of the bill say it will foster competition for construction projects and gives employees free choice in deciding whether to be subject to union control while critics of the bill say this undermines Wisconsin workers as other states could then bid on local projects taking away jobs from local residents, would prevent jobs from being completed on time, and could even jeopardize safety of workers.  Around half of the States currently prohibit PLA's.

A PLA is a pre-hire collective bargaining agreement with one or more labor organizations that establishes the terms and conditions of employment for a specific construction project.  A project labor agreement requires all contractors, whether they are unionized or not, to subject themselves and their employees to unionization in order to work on a government-funded construction project. This is done by including a union collective bargaining agreement in a public construction project’s bid specifications. In order to receive a contract, a contractor must sign the agreement and subject its employees to union control.

For more on this proposed legislation, see here and here.

Thursday, January 26, 2017

Releasing an Employee's Medical Information May Violate FMLA

A Federal District Court in Florida recently denied an employer's Rule 12(b)(6) Motion to Dismiss a federal Family and Medical Leave Act ("FMLA") alleging both interference and retaliation.  Though the Court did signal some difficulties the Plaintiff *may* have pursuing his claim with these facts under the FMLA, for purposes of whether his complaint was sufficiently plead, the Court ruled that it was and may proceed to discovery.

The plaintiff, Scott Holtrey, worked for the defendant, Collier County Board of County Commissioners since 2006 and in June 2015, he developed a chronic and serious health condition with his genitourinary system.  Halter applied for leave under the FMLA and his application included 'sensitive and detailed medical information.'  The defendant approved Holtrey's FMLA leave request. Unbeknownst to Holtrey, a management-level employees allegedly disclosed his condition to his coworkers and subordinates at a staff meeting that he did not attend.  Approximately eight (8) coworkers and subordinates learned of Holtrey's medical condition and these coworkers and subordinates approached Holtrey to inquire about his condition and "frequently make fun of him."  The complaint also stated that the "subordinate employees have been making jokes and obscene gestures about [his] condition in front of him."  Holtrey sought corrective action but the Defendant file to remedy the situation.  As a result, Holtrey filed this action under the FMLA alleging claims for FMLA interference and retaliation for Defendant's alleged breaching of his confidentiality under the FMLA.  The Defendant filed a Rule 12(b)(6) Motion to Dismiss the complaint arguing that Holtrey failed to allege that he was denied his FMLA benefits or engaged in an adverse employment action resulting in damages.  The defendant argues that it approved and Holtrey received his FMLA leave and that his FMLA interference claim fails because Holtrey did not adequately allege a hostile work environment.

FMLA Interference

FMLA interference occurs when an employer interferes with, restrains, or denies the exercise or attempted exercise of rights or benefits under the FMLA.  An employee alleging a claim of interference "need only demonstrate by a preponderance of the evidence that he was entitled to the benefit denied."  Additionally, "records and documents relating to certifications, recertifications or medical histories of employees or employees' family members, created for purposes of FMLA, shall be maintained as confidential medical records in separate files/records from the usual personnel files."  However, the Court noted a potential issue moving forward as they stated, "it is unsettled whether this provision gives rise to a private right of action for disclosure."  Because the Defendant was only challenging the sufficiency of Holtrey's claim and not whether there is a private right of action, the Court denied the motion to dismiss on this claim.

The Court wa also not persuaded by Defendant's argument that the interference claim fails because Holtrey, by his own admission, was granted leave.  The issue in this case is whether confidentiality is a right under the FMLA and whether Defendant interfered with that right.  The court further stated, "although district courts conflict on whether a disclosure of an employee's medical information constitutes an interference claim under FMLA, the Court finds that the enforcing labor regulation makes clear that confidentiality of medical information is a right provided and protected under the FMLA."

The Court also upheld Holtrey's hostile work environment claim because he alleged the Defendant interfered with his FMLA rights by disclosing his confidential medical information to his coworkers and subordinates, which resulted in a work environment riddled with obscene gestures and jokes at his expense.  The Court concluded that this sufficiently alleged that this altered his work conditions.

FMLA Retaliation

To succeed on an FMLA retaliation claim, an employee must demonstrate that her employer intentionally discriminated against her in the form of an adverse employment action for having exercised an FMLA right.  To sufficiently allege a retaliation claim, the employee must show, "1) he engaged in a statutorily protected activity; 2) he suffered an adverse employment decision; and 3) the decision was causally related to the protected activity.  The parties squared over the second element.

As with retaliation claims under Title VII, a challenged employment action is "materially adverse" if it well might have dissuaded a reasonable worker from making or supporting a claim under the FMLA.  Holtrey alleged that Defendant's disclosure of his confidential FMLA information constitutes a materially adverse action because it resulted in his co-workers making repeated and frequent jokes and obscene gestures about his condition.  The Court further stated, "at this early stage of litigation, the Court is hard-pressed to find that disclosing confidential medical information about an individual's genito-urinary system to that employee's coworkers and subordinates does not materially affect his working conditions.

The case is  Holtrey v. Collier County Bd. of Commissioners