Tuesday, July 22, 2014

President Obama Signs Executive Banning Discrimination Based on Sexual Orientation and Gender Identity by Federal Contractors

Yesterday President Barack Obama signed an Executive Order further amending Executive Orders 11478 and 11246.  Executive Order 11478 requires the federal government to provide equal opportunity in federal employment for all persons, to prohibit discrimination in employment because of race, color, religion, sex, national origin, handicap, or age, and to promote equal employment opportunity through a continuing affirmative program in each executive department and agency.  Executive Order 11246 prohibits federal contractors and federally-assisted construction contractors and subcontractors, who do over $10,000 in government business in one year, from discriminating in employment decisions on the basis of race, color, religion, sex, or national origin.  The amendment now prohibits federal contractors from discriminating against employees based on gender identity and sexual orientation.

It is unclear whether this new Executive Order will impose new affirmative action requirements on federal contractors.  The Secretary of Labor is required to prepare regulations implementing the provisions of the Executive Order within 90 days, which will provide further guidance on the obligations imposed by the Order.

So that there's no confusion, this Executive Order only applies to federal contractors and subcontractors who have covered federal contracts.  The Order does not apply to private employers, as there still remains no federal prohibition against discrimination in the workplace based on sexual orientation or gender identity.  Luckily for Wisconsin residents, the Wisconsin Fa

July Edition of the Employment Law Blog Carnival is Live!

The July edition of the wonderful Employment Law Blog Carnival, titled, "The Child of the 90s Edition," is up over at the Ohio Employer's Law Blog, as written by Attorney Jon Hyman.  Check it out now! #ELBC

EEOC's Enforcement Guidance on Pregnancy Discrimination

The Equal Employment Opportunity Commission (EEOC) recently released its Enforcement Guidance on Pregnancy Discrimination and Related Issues (the Guidance), which is essentially a guide for employers and employees on the EEOC's understanding of the law and how it will seek to enforce it, but also attempts to expand the law to provide greatly enhanced protections to pregnant employees.  As most practitioners are aware, the EEOC's enforcement guides aren't law, nor do they create law, but they have considerable implications as they are the agency that upholds the nation's federal anti-discrimination laws.  This Guidance is also important and has received a lot of attention because pregnancy discrimination continues to be a big problem, yet there has not been new legislation to provide further protection for pregnant employees in many, many years.

As was expected by this new Guidance, the EEOC has taken an expansive view of the protections to be afforded pregnant employees.  The Guidance also covered most of the federal workplace laws touching on pregnancy and related conditions, including the Pregnancy Discrimination Act (PDA), the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), the Affordable Care Act (ACA), the Family and Medical Leave Act (FMLA), and Executive Order 13152 (which prohibits discrimination in federal employment based on parental status).  Perhaps the biggest feature of the Guidance is the EEOC's stance that the PDA and the ADA entitle pregnant employees to accommodation.

Specifically, the Guidance states:
The Commission rejects the position that the PDA does not require an employer to provide light duty for a pregnant worker if the employer has a policy or practice limiting light duty to workers injured on the job and/or to employees with disabilities under the ADA.

Recognizing that this is not a position taken by some courts, the EEOC finds any analysis to the contrary "flawed."  The Sixth Circuit, in Latowski v. Northwoods Nursing Ctr. (6th Cir. December 23, 2013), recently took the position that denying a pregnant employee light duty pursuant to a facially neutral policy limiting light duty to employees injured on the job violates the PDA, suggesting a potential shift in courts' analysis of this issue. 

With respect to the ADA and pregnancy as a "disability,"  the Guidance stated that, "[a]lthough pregnancy itself is not an impairment within the meaning of the ADA, and thus is never on its own a disability, some pregnant workers may have impairments related to their pregnancies that qualify as disabilities. . . even though they are only temporary."

So what does this mean for the public?  EEOC Enforcement Guides are more critical to employers because it puts more restrictions on their behavior if they want to avoid potential lawsuits against them by the EEOC or the EEOC finding probable cause that an employee was discriminated against on the basis of their pregnancy.  It is still important for employees to be aware of the EEOC's stance on these laws because it can be used as bargaining power in seeking an accommodation during their pregnancy if an employer currently has policies that seem to run afoul of this new Guidance.

Thursday, June 19, 2014

June Edition of the Employment Law Blog Carnival

Sorry for my lack of postings lately as I have been consumed with my cases, but in the interim, be sure to check out this month's edition of the Employment Law Blog Carnival!  #ELBC

Friday, May 23, 2014

4th Circuit Holds Employer Liable for Racial and Sexual Harassment from a 3rd Party

As the title of this posts suggests, this is a case of somewhat peculiar facts, as evidenced by the slightly confusing introduction to the opinion of this case.

Facts and Procedural Background

Essentially, the plaintiff, Lori Freeman, began working for Defendant Dal-Tile (through their predecessor, Marble Point) as a receptionist through a temporary staffing agency.  After six (6) months, Freeman joined Dal-Tile as a permanent employee.  Freeman's position and titled changed a few times and in November 2009, her position was reclassified to Customer Service Representative.  The opinion then states, "[t]he harassment claims at issue are based on the behavior of Timothy Koester, an independent sales representative for VoStone.  Freeman usually interacted with Koester more than once a day while he was conducting business with Dal-Tile on behalf of VoStone."  Koester is the other named Defendant in the case.

Barely two weeks into the job as a temp employee, Freeman overheard Koester reference a photograph of two former employees, asking, "[H]ey, who are these two black b****es[?]".  This bother Freeman who asked her supervisor, Sara Wrenn, who Koester was and "what was his deal," to which Wrenn stated Koester is "an asshole, but I don't think he'll do it again."  Freeman confronted Koester the next day and told him how uncomfortable and demeaning she found his question and comments.  On another occasion, Koester showed Freeman a photograph of a naked woman on his cell phone and remarked: "[T]his is what I left in my bed to come here today."  On another occasion Freeman overheard Koester, talking with one of his co-workers, about that co-worker's daughters, state: "I'm going to hook up with one of your daughters," or "I'm going to turn one of your daughters out."

Koester continued to engage in outrageous and offensive behavior, all of which Freeman's supervisors either witnessed themselves or were told by Freeman through complaints.  However, Freeman's supervisors' responses to the complaints were dismissive and almost equally as insulting.  At trial, several of Freeman's co-workers testified, in-depth, about the numerous and frequency of Koester's lewd and inappropriate comments related to sex and race in the workplace.  Eventually Dal-Tile banned Koester from the workplace but that ban was lifted and then Koester was merely prohibited from communicating with Freeman.  The prospect of being forced to interact with Koester was so upsetting to Freeman that she took a medical leave of absence and received treatment for depression and anxiety.  Freeman eventually quit her job with Dal-Tile and stated it was because of her depression and anxiety and that she was "constantly worried she would encounter Koester at work."  While Freeman was on medical leave, she filed a charge with the EEOC asserting Dal-Tile had subjected her to discrimination based on her sex and race.  After receiving her right-to-sue letter, Freeman filed suit in federal district court asserting claims for racial hostile work environment under 42 U.S.C. sec 1981; racial and sexual hostile work environment under Title VII; discriminatory discharge under 42 U.S.C. sec. 1981; and obstruction of justice under common law for the destruction of emails in violation of the litigation hold.

Dal-Tile filed a motion for summary judgment and the district court granted their motion.  Among the reasons for granting summary judgment, the district court held that, "Freeman could not establish that liability should be imputed to Dal-Tile."  The district court used a negligence standard, adopted from an unpublished opinion of the court, in which "an employer is liable [for actions of a third party] 'if it knew or should have known of the harassment and failed to take appropriate actions to halt it.'"  The court then held Dal-Tile did not have actual or constructive knowledge of the harassment because "no reasonable fact-finder could conclude that plaintiff's statement[s] to Wrenn constituted a complaint, either formal or informal."  The district court then 'dinged' Freeman for not complaining further to Dal-Tile and that Dal-Tile's response was "appropriate and adequate as a matter of law."  The district court also held Freeman's resignation was a voluntary resignation and not a constructive discharge because she was "unable to show that anyone at Dal-Tile acted deliberately with an unlawful discriminatory intent in order to force her to resign either before or after she returned from medical leave."

Fourth Circuit's Reversal of Summary Judgment

Racial and Sexual Harassment/Hostile Work Environment

The 4th Circuit began their discussion by stating the burden in this case:

"For this court to reverse the district court's grant of summary judgment to Dal-Tile on her hostile work environment claims, Freeman must establish that the evidence, viewed in her favor, would allow a reasonable jury to conclude that the harassment was (1) unwelcome, (2) based on [Freeman's] gender or race, (3) sufficiently severely or pervasive to alter the conditions of her employment and create an abusive atmosphere, and (4) imputable to [Dal-Tile]."

The district court the first 2 elements easily-met.  On the Third element of "sufficiently severely or pervasive to alter the conditions of her employment and create an abusive atmosphere," the court noted that "this element of a hostile work environment claim has both subjective and objective parts."  Regarding the subjective component, the district court stated, and the 4th Circuit agreed, that the evidence supports a finding that Freeman subjectively perceived both types of harassment to be abusive or hostile as evidenced by her complaints, crying at work, generally being distracted by Koester's presence and her subsequent medial leave for anxiety and depression related to Koester's behavior and conduct.  On whether the harassment was objectively severe or pervasive, the court inventoried all of the lewd and inappropriate behavior Koester engaged in, as testified to into the record during discovery.  Thus, the 4th Circuit held that a reasonable jury could find both forms of harassment severe or pervasive.

Employer's Liability for Acts of Third Party

Regarding Dal-Tile's liability for Koester's racial and sexual harassment, the Court noted the district court used a standard not adopted by the 4th Circuit, but, the 4th Circuit then officially adopted the standard in the opinion.  Thus, using this standard cited above, the 4th circuit held that a reasonable jury could find that Dal-Tile knew or should have known of the harassment and likewise cataloged the numerous and various complaints Freeman lodged with various supervisors about Freeman's racial and sexual harassment.  Additionally, Freeman created triable issue of fact as to whether Dal-Tile's response to halt the harassment was adequate.

Plaintiff's Constructive Discharge Claim

An employee is considered constructively discharged "if an employer deliberately makes the working conditions intolerable in an effort to induce the employee to quit."  Freeman then needed to prove two elements to demonstrate constructive discharge:  "(1) the deliberateness of [Dal-Tile's] actions, motivated by racial bias, and (2) the objective intolerability of the working conditions."

The 4th Circuit held that Freeman did not present sufficient evidence to create a question of fact as to whether Dal-Tile deliberately attempted to induce her to quit, not that her working conditions at the time she resigned were objectively intolerable.  Furthermore, Freeman presented no evidence that Koester's harassment was still creating an objectively hostile work environment at the time she resigned, nor that Dal-Tile was allowing him to harass her in the deliberate attempt to force her to quit.  Thus, the 4th Circuit affirmed the district court's grant of summary judgment on this claim.

The outcome of this case is in line with reality and the expectation employees ought to have out of their employers in protecting them in the workplace, whether it's from fellow employees or those who come into the workplace.  There are lessons to be learned on both sides and it'll be interesting to see if this case goes to trial, though I suspect it will not given the facts and obscene nature of Koester's comments.  I cannot see a jury finding his conduct not harassing and Dal-Tile's response adequate, but I may be biased.

The case is Freeman v. Dal-Tile Corp., No. 13-1481 (4th Cir. May 1, 2014).

Tuesday, May 13, 2014

Walgreens Loses Summary Judgment in Case Where Employee Stole Food Due to Disability

Josephina Hernandez worked for Walgreens for 18 years when one day, while stocking shelves, she began shaking and sweating from low blood sugar.  Hernandez did not have any candy with her to combat the low blood sugar so she opened a $1.39 bad of potato chips that was in the cart and ate some.  She did not notify or request assistance from a manager before opening and eating the chips.  After about 10 minutes, when she started feeling better, Hernandez then attempted to pay for the chips but no one was at the register to ring her up, so she put the bag under the counter and went back to work.  The assistant manager discovered the discarded bag under the counter and asked whose they were and Hernandez admitted they were hers.  The assistant manager reported Hernandez to the Store Manager.

Hernandez then went on vacation for two (2) weeks and upon her return, she met with Walgreens loss prevention and was asked to write a statement about the chip incident where she wrote, "my sugar low, not have time."  Hernandez was then suspended and then subsequently terminated for taking the chips in violation of Walgreens' policy, as there is no "gray area" or "discretion" under the policy.  Hernandez was diagnosed with diabetes five (5) years after beginning work for Walgreens and Walgreens knew about Hernandez's Type II diabetes and allowed her to possess candy in case of low blood sugar, keep insulin in the break room refrigerator and take additional breaks to test her blood sugar or eat because of her diabetes.  However, Walgreens' anti-grazing policy is so strict that all managers in the district "consistently" terminated any employee for theft regardless of the employee's rank, employment history, or the value of the items taken.

Hernandez filed an EEOC complaint after her termination and the EEOC investigated and then brought suit against Walgreens, claiming Hernandez was terminated in violation of the Americans with Disabilities Act (ADA) and Title VII.  Walgreens filed a motion for summary judgment, arguing that Hernandez's termination for theft was not in violation of law.  The EEOC countered that Walgreens failed to accommodate Hernandez's known disability which caused the complained-of conduct.

Reasonable Accommodation

Walgreens argued that it can never be a reasonable accommodation to require an employer to accommodate employee theft under case law and the EEOC's own guidelines and relied heavily on Raytheon Co. v. Hernandez, 540 U.S. 44 (2003), which is a case where the Supreme Court held that the employer's application of its neutral no-hire policy was, by definition, a "legitimate, nondiscriminatory reason under the ADA."  Id. at 51-52.  However, the district court held, Raytheon did not directly address the question raised here:  whether an employer under the ADA is required to make a reasonable accommodation with respect to an employee whose disability caused that employee to violate a company's workplace rule. 

The court then discussed the other cases Walgreens attempted to cite as precedent and persuasive along with the EEOC guidelines they attempted to use against the EEOC.  However, as the court pointed out, each guideline cited had language about the rule being "job-related and consistent with business necessity."  Thus, the court concluded, whether it was business necessity to treat Hernandez the same as other employees who had been fired under the anti-grazing policy when Hernandez claims taking the chips was necessitated by her medical condition is a question of fact for the jury.    The court further opined that Walgreens had not established that Hernandez's conduct was "stealing" as a matter of law, much less stealing as contemplated by the EEOC guidance.  Furthermore, the court stated, "[u]nder the Ninth Circuit case law, misconduct resulting from a disability has to be considered as part of Hernandez's disability sand creates a question of fact as to whether Hernandez's disability was causally related to her termination.  In other words, whether or not Hernandez's disability was, in fact, a cause of her misconduct is a question of fact for the jury.  Similarly, whether Walgreens should have been required to 'accommodate' her stealing as a 'reasonable' accommodation is for the jury to determine."  Therefore, summary judgment was DENIED.

Hernandez's Failure to Manage Her Disability or Request an Accommodation

Walgreens also tried to argue that Hernandez's failure to accommodate her own disability on the day in question--by failing to have candy on her as allowed by Walgreens--should insulate their termination decision.  Again, the court held that Walgreens was citing distinguishable case law that failed to establish, as a matter of law, that Hernandez's failure to control her diabetes validated Walgreens' termination decision.

Walgreens also argued that the EEOC's failure to accommodate claim fails as a matter of law because Hernandez never sought the accommodation of eating food without first paying for it from Walgreens and did not give Walgreens the opportunity to accommodate her when the need allegedly arose.  The court held that whether Hernandez was really suffering from a hypoglycemic attack that required her to eat the chips and whether the timing of the attack reasonably prevented her from seeking an accommodation from her managers beforehand are questions of fact for the jury to decide.

This is a fairly interesting case as there are good arguments on both sides here with the court holding that there are issues of fact with respect to all of the claims to proceed to a jury.  On the one hand you have the plaintiff who did what she had to do to combat low blood sugar and apparently had no time to seek manager approval before eating the chips that were nearby.  On the other hand, you have an employer trying to uphold a policy to the utmost to discourage employees from stealing a penny worth of their merchandise.  Employers are certain to be in an uproar over the thought of an employee having a claim--let alone a claim for punitive damages--against them when they fire an employee for something like theft, but how can we expect an employee with a disability to jeopardize their health out of fear of being fired over a $1.39 bag of chips?  Odds are this case will settle, or, even if it doesn't, it may not be appealed out of fear of creating precedent given the 9th Circuit's existing precedent holding that an employer's reason for terminating an employee in cases like these must "disclaim any reliance on the employee's disability in having taken the employment action."  Dark v. Curry County, 451 F.3d 1078, 1084 (9th Cir. 2006).  In this case, because Walgreens could not disclaim any reliance on Hernandez's disability and instead claimed a uniformly-applied policy, Hernandez did not need to show pretext because they did not show a LNDR.

The case is EEOC v. Walgreen Co., Case No. 11-cv-04470-WHO (N.D. Ca.)

Monday, May 12, 2014

There are Still 29 States Where it is Lawful to be Fired from Your Job for Being Gay (Picture)

Fortunately for residents of Wisconsin, there is anti-discrimination legislation under the Wisconsin Fair Employment Act ("WFEA") which makes it unlawful for an employer to discriminate against an individual on the basis of their sexual orientation in the following ways:

  • Job assignments
  • Recruitment and hiring
  • Pay
  • Leave or benefits
  • Promotion
  • Licensing or union membership
  • Training
  • Lay-off and firing
  • Other employment related actions

  • Unfortunately for residents of 29 other states in the United States, such protection is not afforded.  MSNBC recently had a map showing the states that still do not protect sexual orientation in the workplace and there is still no federal law that provides protection as the Employment Non-Discrimination Act ("ENDA") continues to be ignored in Congress:

    Wednesday, April 23, 2014

    9th Circuit Affirms Summary Judgment, Holding Employee Can Affirmatively Decline Use of FMLA Leave

    In another case highlighting how tricky and complex FMLA leave can be, the Court of Appeals for the Ninth Circuit  affirmed a district court's judgment, after a 6-day jury trial, denying plaintiff's motion for summary judgment because an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking leave would have invoked FMLA protection.  The Court also held that the district court did not err in denying the plaintiff's motion for judgment as a matter of law because, viewing the evidence in the light most favorable to the jury's verdict, there was substantial evidence that the plaintiff elected not to take FMLA leave.

    As is the case with almost all employment law matters, the facts of this case are important in understanding the 9th Circuit's decision:

    The plaintiff, Maria Escriba, worked for the defendant, Foster Poultry Farms, Inc., a processing plant in California, for 18 years and was terminated in 2007 for failing to comply with the company's "three day no-show, no-call rule" after the end of a previously approved period of leave, which she took to care for her ailing father in Guatemala.

    The reason this matter survived summary judgment and went to a jury trial is because there was a material dispute of fact concerning the characterization of Escriba's request for a two-week period of leave and whether she affirmatively declined FMLA leave.  Escriba filed suit under the FMLA and its California state law equivalent claiming her termination was an unlawful interference with her rights under the FMLA.  Foster Farms contended that, although Escriba provided an FMLA-qualifying reason for taking leave, she explicitly declined to have her time off count as FMLA leave.

    The facts are discussed for 5 pages in the opinion but the key fact was Foster Poultry Farms' leave policy which requires an employee who requests FMLA-protected leave to first exhaust paid vacation time.  The initial paid leave runs concurrently, counting against both an employee's balance of vacation time and his or her FMLA-protected leave.  A labor relations manager with Forest Farms testified that if an employee elects to take vacation time and expressly declines FMLA-protected leave, the company "can't force [the employee] to take a leave if they're requesting to take the availability of their vacation because that would be reducing a benefit that [the employee] would have."  By first exhausting paid vacation time, an employee thus preserves the balance of any and all available FMLA time.  This fact became key as ultimately the jury believe Escriba sought to preserve all of her FMLA leave time by first taking paid vacation time and expressly declining FMLA leave in the beginning.

    Because Escriba never later sought to take FMLA leave, she was terminated per Forest Poultry's attendance policy.  However, Escriba unsuccessfully attempted to argue that she was automatically entitled to FMLA leave during her entire time because Forest Poultry was aware her leave was for a reason that qualified under the FMLA.  However, the 9th Circuit ultimately held that an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection.

    The case is Escriba v. Foster Poultry Farms, Inc., 2014 BL 50661, 9th Cir., No. 11-17608, 2/25/14).

    April Edition of the Employment Law Blog Carnival is LIVE!

    Attorney Tim Eavenson over at the "Current Employment" blog hosted this month's edition of the employment law blog carnival (which I contribute to just about every month).  Just it out here!

    Monday, April 14, 2014

    Court Holds Placing Pregnant Employee on Paid Leave Not a "Per Se Reasonable Accommodation"

    A federal district court in California granted in part and denied in part a defendant-employer's Rule 12(b)(6) motion to dismiss a plaintiff's claims, primarily based on pregnancy discrimination, holding that their placing the plaintiff, who was pregnant and merely had lifting restrictions, on total disability leave was not a reasonable accommodation.

    The facts of the case are simple.  The plaintiff, Azucena Tapia, became pregnant and when the pregnancy advanced, she informed the employer, Artistree, Inc. and Michaels, Inc., that she needed accommodation, including no heavy lifting or pushing and a 5-10 minute restroom break every 3 hours.  Tapia gave the employer a doctor's note in support of these accommodations, however, the employer allegedly failed to engage in a good faith interactive process to determine whether an appropriate accommodation would be possible, telling Tapia that they would not accommodate her restrictions or attempt to find a position where she could continue to work for the duration of her pregnancy.  Instead, they told her she should have her doctor place her on total disability, which she did.

    Plaintiff claimed she could have worked throughout her pregnancy had defendants accommodated her restrictions as originally recommended.  Tapia did not work the remainder of her pregnancy, gave birth, and while she was in the hospital recovering, an HR rep called Tapia and told her that she could lose her job if she did not return to work that same day.  Defendants allegedly did not offer her an accommodation when Tapia explained that she would not be able to return to work immediately due to her C-section.  Tapia was terminated 13 days later with defendants citing  job abandonment. 

    In denying defendants' motion to dismiss plaintiff's pregnancy discrimination claims, the court stated that, "it is not clear that Plaintiff was offered a 'reasonable accommodation.'  It is true that 'in appropriate circumstances, reasonable accommodation can include providing the employee accrued paid leave or additional unpaid leave for treatment.'"  However, the court stated, "paid leave is not a 'per se reasonable accommodation," noting that this employer offered only one possibility to the Plaintiff:  take total disability leave for the duration of her pregnancy.  The court then noted that the employer never sought to engage in the "interactive process" required, nor attempted to determine whether Plaintiff's disability could have been accommodated in another way. 

    The court also noted precedent which held leave is a reasonable accommodation when it is likely the employee will be able to return to work and stated that this employer should have known that the Plaintiff would be giving birth around August 2012 and would need additional leave following the birth.  Thus, the court held that granting the Plaintiff leave for the duration of her pregnancy only to require her to return to work within two weeks of giving birth via C-section does not appear to be a reasonable accommodation.  Therefore, the employer's motion to dismiss plaintiff's claims regarding pregnancy discrimination was denied.

    The case is Azucena Tapia v. Artistree, Inc., et al., Case No. CV 14-01381 DDP