Tuesday, December 15, 2015

5th Circuit Holds Rescission of Resignation Can Sometimes be an Adverse Employment Action

The Court of Appeals for the Fifth Circuit reversed a grant of summary judgment from a lower court, holding that "rejecting an employee's rescission of resignation can sometimes constitute an adverse employment action, and appellant has presented a substantial conflict of evidence on the question of whether the employer would have taken the action 'but for' the protected activity."


The plaintiff, Tyrikia Porter, experienced a slew of comments and physical behavior from the Defendant's newly-hired Executive Director, Wayne Thibodeaux.  Porter's direct supervisor was Jan Yakupzack, and Porter reported "some" of Thibodeaux's behavior to her, but did not file a formal grievance.  Porter then tendered her resignation on June 6, 2012, to take effect on August 1, 2012.  Porter was aware that other employees had been allowed to rescind resignations, but at the time of her resignation, Porter did intend to actually leave.  On July 25th, Porter requested that her resignation be put off until September 1st, so that she could complete projects, train staff, and assist in inspections.  This request was approved by Thibodeaux the same day, thus extending her resignation to September 1, 2012.

In an unrelated matter, Porter testified at a grievance hearing about Thibodeaux's behavior toward her and the Chairman of the HTHA Board of Commissioners, Allan Luke, asked Porter if she intended to pursue any charges, and asked her to consider rescinding her resignation.  Yakupzack also asked Porter to consider rescinding her resignation.  Thus, on September 4, 2012, Porter wrote a letter stating that she had "decided to rescind [her July 25th] resignation notice and remain an employee" of the HTHA.  This letter was forwarded from Yakupzack to Thibodeaux, who further stated that she supported retaining Porter.  Acting in his sole discretion, Thibodeaux denied the request on September 10th.  This is the only time an employee was separated from the HTHA against Yapupzack's advice.

As for the reason Thibodeaux rejected the rescission, he stated that he had "determined that that person was not satisfied or happy being an employee of the ... Housing Authority."  However, Porter stated that she was in fact happy with her job, and believes her rescission was not accepted because of her testimony at the hearing.

Porter then filed a charge with the EEOC alleging that she was sexually harassed until her "discharge" and was discriminated against in "retaliation for opposing practices made unlawful under Title VII."  She received a Right to Sue letter and then filed suit in the Eastern District of Louisiana.  The HTHA moved for summary judgment, which was granted, which led to Porter's appeal to the 5th Circuit.


To establish a prima facie claim for retaliation, a plaintiff must show:

(1) she was engaged in protected activity;
(2) she was subjected to an adverse employment action; and
(3) there was a causal connection between the protected activity and the adverse employment action.

There was no dispute about the first element as it is clear that Porter's testimony at the hearing is engaging in protected activity.  However, the 2nd and 3rd elements are at issue and disputed.

The seminal U.S. Supreme Court case of Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) discussed and clarified that the "adverse employment action" is in fact NOT limited to "workplace-related or employment-related retaliatory acts and harm.  The key question is whether the challenged action is "materially adverse" in that it is "harmful to the point that [it] could well dissuade a reasonable worker from making or supporting a charge of discrimination."  The standard if objective, but the "significance of any given act of retaliation will often depend upon the particular circumstances.  Context matters, and this is how Porter prevailed in this appeal, as alluded to above in the facts section.

In response to the argument that an employee has no statutory or contractual right to rescind a letter of resignation, and, therefore, rejection of the rescission is never an adverse employment action, the 5th Circuit pointed out:

"Most at-will employees have no right to employment in the first place, but not hiring them on their basis of their engagement in protected activities is nonetheless the ultimate adverse employment action, even under the strict pre-Burlington Northern standard for what counts.  Just as an at-will employer does not have to hire a given employee, an employer does not have to accept a given employee's rescission.  Failing to do so in either case because the employee has engaged in protected activity is nonetheless an adverse employment action.
In considering context in Porter's case, the Court found that "...circumstances suggest that a reasonable employee in Porter's shoes might have legitimately expected that her rescission of resignation would be accepted."  i.e., The Chairman of the HTHA, Allan Luke, asked her to rescind her resignation, as did her immediate supervisor, Yakupzak, Porter's request to stay on a month longer than her initial effective resignation date was immediately approved, and Porter identified four (4) individuals who had resigned and then been allowed to rescind their resignations.  Thus, the Court held that Porter satisfied the second element.


The second and last issue the Court had to address, which the lower court did not address, is whether there was a causal connection between the protected activity and the adverse employment action.

To demonstrate pretext and avoid summary judgment, Porter had to show "'a conflict in substantial evidence' on the question of whether the employer would not have taken the action 'but for' the protected activity."

In quickly finding this issue in favor of Porter, the Court noted that, in the 5th Circuit, temporal proximity between protected activity and alleged retaliation is sometimes enough to establish causation at the prima facie.  There was a six and a half week timeframe between Porter's testimony (protected activity)  and her denial of her rescission (adverse employment action), and thus, this was deemed sufficient to satisfy the prima facie case of causation.

The case is Porter v Houma Terrebonne Housing Authority Board of Commissioners, 5thCir, November 17, 2015, Higginbotham, P.

Termination and Eligibility for Unemployment Insurance in Wisconsin

A significant portion of my practice is handling unemployment insurance appeals for both employees and employers.  Also, as I have written previously on this blog, there were changes in recent years to the law pertaining to unemployment compensation in Wisconsin which affected the eligibility of benefits to people who were terminated (i.e., "fired") from their job and as that law has been interpreted and addressed, I find it useful to write and educate about the topic as many people Google the topic when they are going through the process.  While I believe it good to educate yourself on these topics, nothing replaces competent and reliable legal representation!

When determining whether an employee/claimant is eligible for benefits based upon their discharge, the analysis first begins with whether the employee was discharged for misconduct by engaging in any of the actions enumerated in Wis. Stat. sec. 108.04(5)(a)-(g).  If those provisions do not apply, it is then determined whether the employee's actions constitute misconduct as originally defined by the Wisconsin Supreme Court in Boyton Cab Co. v. Netback, 237 Wis. 249, 259-60, 296 N.W. 636 (1941).  I have written about Boyton Cab Co. previously here.

If "misconduct" is not found, it is then determined whether the discharge was for substantial fault by the employee connected with the employee's work, as set forth in Wis. Stat. sec. 108.04(5g).  I have written about "misconduct" and "substantial fault previously here.  Substantial fault was the newer addition to Wisconsin unemployment law and includes those acts or omissions of an employee over which the employee exercised reasonable control and that violate reasonable requirements of the employer, but it does not include minor infractions of rules unless an infraction is repeated after warning, inadvertent errors, or any failure of the employee to perform work because of insufficient skill, ability, or equipment.  Wis. Sat. sec. 108.04(5g).  This is very technical and complex legalese, but these cases come down to the facts and how they are argued during an appeals hearing, which makes having legal representation so important and crucial.  

Wednesday, December 9, 2015

Henry Ford and Living Wage

Wednesday, November 18, 2015

Federal Court Holds Female Employee Has No Sexual Harassment Claim Despite Being Flashed

In yet another case that emphasizes how the "devil is in the facts" when it comes to employment law cases and especially sexual harassment cases, a federal court in the Southern District of Mississippi has dismissed a female plaintiff's sexual harassment and constructive discharge claims even though the facts showed that a male coworker flashed his genitals, showed her pictures of his genitals and made sexual references toward her.

The plaintiff, Joslyne E. Davenport, was hired through a temp agency to work at a Nissan manufacturing plant on a line installing brakes.  Her coworker, Fred Tate, was a line leader on her shift.  The plaintiff and Tate were supervised by Aaron Rogers.  The plaintiff claims that within weeks of starting this new job, Tate exposed his genitals to her while they were working.  Following this incident, the plaintiff informed another coworker of what happened but not any of her supervisor(s) and the plaintiff and Tate continued to work together for two (2) months before the plaintiff told another coworker, Dwight Turner, about what happened and Turner then reported the incident to human resources at both Nissan and the temp agency.  The plaintiff then contended that during the two months in between the initial incident and Turner's report, that Tate made sexual references and displayed photos of his genitals in front of other employees of Nissan and the temp agency.

Upon learning of Tate's conduct, both Nissan and the temp agency conducted investigations and interviewed several employees.  The holidays disrupted work and the investigations but when the plaintiff returned to work, she was reassigned to another area and given different coworkers and supervisors.  The plaintiff claims that when she next saw Tate Rogers, they didn't say anything to her but "glared at her," which prompted her to quit her job.  Tate was subsequently terminated for other misconduct, not for his alleged nude exposure to the plaintiff and others.  The plaintiff then filed a charge with the Equal Employment Opportunity Commission (EEOC) and then in federal court upon her issuance of a Right to Sue Letter.

In dismissing her claims, the district court found that (a) Mr. Tate was not Ms. Davenport’s supervisor, as he had no authority to hire, fire, or discipline Ms. Davenport; (b) Ms. Davenport failed to introduce any evidence to demonstrate that Mr. Tate’s conduct was severe or pervasive enough to alter a term or condition of her employment; (c) Ms. Davenport delayed in reporting the incident to Nissan/Kelly Services; and (d) the Defendants’ prompt investigation into the flashing incident contradicted Ms. Davenport’s claim that the Defendants were negligent in their handling of the incident.

This case illustrates the difficulty in presenting sexual harassment claims even when the facts show the more common sense definition of "sexual harassment."  Furthermore, the law imposes very strict standards for when an employer is liable for such conduct by its employees.  The plaintiff's conduct in reaction to the alleged sexual harassment also suggested that she did not experience sever or pervasive conduct to alter a term or condition of her employment because her initial reaction wasn't to complain to her supervisors, but to instead tell a coworker as if it was more humorous than anything and it was another coworker who complained instead of the person actually "harassed."  

The case is Davenport v. Nissan North America, Inc., et al 3:14-CV-00671, Southern District of Mississippi.

Thursday, November 12, 2015

Berkeley, California Council Agrees to $15 Minimum Wage

The City Council of Berkeley, California was presented with the decision of raising their minimum wage to $19, which would have been the highest in the United States, but, instead, opted to have staff draft an ordinance based on an alternate proposal put forth by four council members that called for a minimum wage of $15.  From the news story on the specifics:
That proposal calls for a gradual increase to $15 by 2018 for big businesses and by 2020 for small businesses, defined as having 55 or fewer full-time employees.

Berkeley's current minimum wage just reset to $11 an hour, up from $10 previously. And it's set to rise again to $12.53 by October 2016.
Should the new proposal gain final approval, the minimum hourly wage would still rise to $12.53 by 2016, but then keep going to $13.70 by 2017 and to $15 in 2018 for big businesses, adjusting for inflation thereafter.

The wage hike would be slower for smaller employers: From $12.53 to $13 to $13.60 to $14.25 and finally to $15 by 2020.

A $15 minimum would put Berkeley's low-wage worker pay more on par with that in neighboring San Francisco and Emeryville.
Since the federal government is in gridlock over the minimum wage issue, it appears the issue of raising the minimum wage to what people consider a "living wage," will be left in the hands of local government.

Wednesday, November 11, 2015

Recent Developments in Pregnancy Discrimination Cases

This year the Supreme Court of the United States ("SCOTUS") issued its landmark decision in Young v. UPS whereby the Court set forth the standard courts must apply when a plaintiff brings a disparate treatment claim of intentional discrimination under the Pregnancy Discrimination Act.  More specifically, the SCOTUS held that in the absence of direct evidence of discrimination, plaintiffs may prove intentional pregnancy discrimination by using the McDonnell Douglas burden-shifting scheme, which is used in disparate treatment discrimination claims in other cases like sex discrimination, disability discrimination, race discrimination, etc.  Previously, pregnancy had been considered a temporary condition and not subject to the reasonable accommodation standard for those individuals with a "qualified disability" under the Americans with Disabilities Act ("ADA")--which is exactly what the lower court in Young held.

In Young, the SCOTUS set forth the prima facie case a plaintiff must present:

1)  she was pregnant;
2)  she requested an accommodation;
3)  her request was denied;
4)  the employer accommodated others "similar in their ability or inability to work."

With respect to the fourth prong, the Court noted that it does not "require the plaintiff to show that those whom the employer favored and those whom the employer disfavored were similar in all but the protected ways."  That is, they need not be "similarly-situated."

Per the McDonnell Douglas burden-shifting scheme, once a plaintiff meets their prima facie case, the burden then shifts to the employer to show that its refusal to accommodate a plaintiff was for a legitimate, nondiscriminatory reason.  Lastly, the plaintiff must then show that the employer's proferred reason for denying the accommodation is "pretext."

Case since Young vs. UPS

As is the case whenever new law or a new standard is introduced into the law, it presents unique questions and challenges in future cases.  On March 30, 2015 of this year, a federal court in New York issued a decision applying the standard in Young v. UPS.

In LaSalle v. City of New York, a female morgue driver became pregnant and issued her employer a physician's note stating that she could not lift more than 45lbs as her job routinely required her to lift cadavers weighing more than 45lbs.  The employer denied this request even though this same employee had not been required to drive the morgue van during her first pregnancy.  The employee ended up injuring herself as a result of the accommodation request denial which put her out of work for several months without pay or insurance while the employer and her attorney engaged in conversations about suitable accommodations--which was ultimately to not have to drive the morgue van.

The employer filed a motion to dismiss which was denied by the court which found that the plaintiff sufficiently pled her claim even though she had not pled the fourth element of the Young prima facie case:  that other employees were provided accommodations.  The court held that the plaintiff had provided sufficient information in her complaint to put the defendant on notice of her claim.

The ADAAA and Pregnancy Discrimination Claims

The 2008 Americans with Disabilities Act Amendment Act ("ADAAA") was enacted in response to the SCOTUS' numerous decisions finding that plaintiff's had not shown that they were qualified individuals under the ADA and Congress felt that these decisions were not in spirit with the intention of the ADA.  The ADAAA essentially then expanded the interpretation of "disability" by broadening the scope of "substantially limits" and "major life activity" in ways that now permit more pregnancy-related conditions to be considered "disabilities" under the Act.  The ADAAA also limited the relevance of duration of an impairment to certain types of claims, effectively permitting temporary impairments like pregnancy-related conditions to be deemed disabilities (recall from the beginning of this post that pregnancy used to be considered a temporary condition and thus not subject to the ADA).

There has since been several cases interpreting the ADAAA to pregnancy discrimination cases and those decisions can be read about here.  Another tremendous source of information on this topic can be found here.

Better Maternity Leave in Iran than in the U.S.?

A recent article on Time Magazine's website reveals that the United States is really, REALLY far behind most every other civilized country--including Iran, Georgia, and Mongolia--when it comes to paid maternity leave:
The land of the free and the home of the brave is one of two of the 185 countries or territories in the world surveyed by the United Nation’s International Labor Organization that does not mandate some form of paid maternity leave for its citizens. Many are familiar with the generosity of Scandinavian nations when it comes to parents bringing new children into the world, but who would believe that we trail Iran in our support of new families?

Iran mandates that new mothers receive two-thirds of their previous earnings for 12 weeks from public funds, according to a the ILO report. In America, mothers are entitled to 12 weeks of unpaid leave—but only if they work for a company that has more than 50 employees, per the Family and Medical Leave Act. And, for some context, more than 21 million Americans work for businesses that employ 20 people or fewer, per the U.S. Census Bureau.

The ILO report is full of unflattering comparisons that will leave American workers feeling woozy. Georgia—the country—allows its mothers to receive 18 weeks of paid time off at 100% of what they made before. Mongolia gives its new moms 17 weeks of paid time off at 70% of previous earnings. (Mongolia’s GDP is $11.5 billion, or about a third of Vermont’s.)
Whenever the federal government is slow-to-act or hasn't acted at all, it leaves it for the States to enact such protections for their residents and so far only five (5) States have done so.  "Five U.S. states provide paid maternity leave: New York, New Jersey, Hawaii, California and Rhode Island. In Rhode Island, for example, mothers receive four weeks of paid leave—ranging from $72 to $752, depending on your earnings."  Hopefully the issue comes to the fore during the Presidential debates.

Tuesday, October 27, 2015

2nd Circuit Court Finds Employee's Facebook "Like" Protected Concerted Activity

A National Labor Relations Board ("NLRB") decision from last summer made headlines when it was found that an employee who was fired after "Liking" a coworker's Facebook status amounted to a violation of Section 8(a)(1) of the National Labor Relations Act ("NLRA") and that the same employer further violated the NLRA by maintaining an over-broad Internet/Blogging policy.  Now, the Court of Appeals for the Second Circuit has affirmed the Board's decision in Three D, LLC d/b/a Triple Play Sports Bar and Grille vs. NLRB.  

As a quick rebuffer, Section 7 of the NLRA guarantees that "[e]mployees shall have the right to self-organization, to form, join, or assist labor organizations ... and to engage in other concerted activities for the purpose of ... mutual aid or protection...."  Section 8(a)(1) of the NLRA protects employees' Section 7 rights by prohibiting an employer from "interefer[ing] with, restrain[ing], or coerc[ing] employees in the exercise of the rights guaranteed in [Section 7]...."

Given the facts in the case, the 2nd Circuit also reminds us that, "[a]n employees Section 7 rights must be balanced against an employer's interest in preventing disparagement of his or her products or services and protecting the reputation of his or her business.  Accordingly, an employee's communications with the public may lose the protection of the Act if they are sufficiently disloyal or defamatory."  This was important as some of the other angry "comments" contained profanities and defamatory statements about Triple and Triple’s owners.

At issue in the case was an employee's (Vincent Spinella) "Like" of another employee's (LaFrance's) Facebook status:  "Maybe someone should do the owners of Triple Play a favor and buy it from them.  They can't even do the tax paperwork correctly!!! Now I OWE money...Wtf!!!!"; and an employee's ( Jillian Sanzone) comment stating, "I owe too.  Such an asshole."  The administrative law judge and the Board agreed that the Facebook activity in this case was "concerted" under the standard set forth in Meyers Industries, 281 NLRB 882, 887 (1986), because it involved four (4) current employees and was "part of an ongoing sequence of discussions that began in the workplace about [Triple Play's] calculation of employees' tax withholding."

After finding that Sanzone's and Spinella's Facebook activity constituted protected concerted activity, the Court stated that the only remaining question before the Board was whether that Facebook activity was so disloyal or defamatory as to lose the protection of the NLRA.  The Court find that their activity did not lose the protection of the NLRA because, applying Jefferson Standard, "the comments at issue did not even mention [Triple Play]'s products or services, must less disparage them."

The 2nd Circuit also discussed and clearly recognizes how social media is used these days in shooting down Triple Play's argument that the employees lost protection of the NLRA because the Facebook discussion took place "in the presence of customers" as the Court noted that such a holding could "lead to the undesirable result of chilling virtually all employee speech online.  Almost all Facebook posts by employees have at least some potential to be viewed by customers. ...  The Board's decision that the Facebook activity at issue here did not lose the protection of the Act simply because it contained obscenities viewed by customers accords with the reality of modern-day social media use."

Triple Play's Internet/Blogging Policy

The NLRB in very recent years has been taking aim at employers' use of policies that govern an employee's use of social media as many were found to violate Section 8(a)(1) of the NLRA.  That was exactly the case here.

A rule violates Section 8(a)(1) if it would reasonably tend to chill employees in the exercise of their Section 7 rights.  Lafayette Park Hotel, 326 NLRB 824, 825, enfd. 203 F.3d 52 (D.C. Cir. 1999).  If the rule explicitly restricts activities protected by Section 7, then it is unlawful.  NLRB v. Martin Luther Mem'l Home, Inc. d/b/a/ Lutheran Heritage Village--Livonia, 343 NLRB 646, 646 (2004).  However, if the rule does not explicitly restrict activity protected by Section 7, the violation is dependent upon a showing of one of the following:  (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights."  Id. at 647.

Triple Play's rule did not explicitly restrict the exercise of Section 7 rights, nor was it promulgated in response to union activity, nor was applied to restrict Section 7 rights.  Thus, the issue then was whether "employees would reasonably construe the language to prohibit Section 7 activity," which the Board and the Court found that it did.  The Board held that under this rule, "employees would reasonably interpret [Triple Play]'s rule as proscribing any discussions about their terms and conditions of employment deemed 'inappropriate' by [Triple Play."

EEOC Sues Dallas-Based Business for Forcing Employee to Take Extended Leave Then Firing When Exceeded Company's Leave Policy

The Equal Employment Opportunity Commission ("EEOC") filed a lawsuit last week against Dallas-based, DAP Products, alleging they violated the Americans with Disabilities Act ("ADA") when it refused to allow a capable cancer-stricken employee to return to work and subsequently fired him because of his disability.  

From the EEOC's press release on the ADA claim:
According to EEOC's lawsuit, DAP discharged the employee from his position of production operator because of his prostate cancer, a physical impairment for which he underwent surgery. After a period of leave the employee was capable of safely continuing in his job, but DAP refused to allow him to return to work, and instead forced him to take extended leave. Then, after refusing to allow the employee to return, DAP fired him for having exceeded company leave limitations.

Such alleged conduct violates the Americans with Disabilities Act (ADA), which protects employees from discrimination based on their disabilities and requires employer to make reasonable accommodations for known disabilities. EEOC filed suit in U.S. District Court for the Northern District of Texas, Dallas Division (Equal Employment Opportunity Commission v. DAP Products, Inc., Civil Action No. 3:15-cv-3423-D) after first attempting to reach a pre-litigation settlement through its conciliation process. The agency seeks back pay and compensatory and punitive damages for the victim, as well as injunctive relief.

Tuesday, October 20, 2015

NLRB Expands Definition of "Concerted" Activity Under Section 7 of NLRA

A relatively controversial decision from the National Labor Relations Board ("NLRB") recently expands the definition of the term "concerted," as that term is used in Section 7 of the National Labor Relations Act ("NLRA").

On July 29, 2015, the Board issued its decision in 200 East 81st Restaurant Corp, 36 NLRB 152 (Jul. 29, 2015), ruling that an employee who files an employment-related class action lawsuit engages in protected concerted activity within the meaning of Section 7 of the National Labor Relations Act (NLRA), even though the employee has not previously consulted with other employees about the lawsuit. 

The charging party in the case, Marjan (Mario) Arsovski, was discharged by his employer after the employer learned of his lawsuit in the United States District Court for the Southern District of New York, on behalf of himself and other similarly situated employees, which alleged certain violations of the Fair Labor Standards Act ("FLSA").  The employer didn't offer any other non-pretextual reasons for terminating Arsovski, thus, the main issue in the case was whether Arsovski was engaged in protected concerted activity when he filed the FLSA lawsuit.  The Board found that he did engage in protected concerted activity.

What stirred controversy in the case is the fact that Arsovski, even though he filed the FLSA suit on behalf of a class of similarly situated employees who work or have worked for the Respondent over a 3-year period of time, the judge found that Arsovski filed the lawsuit without the consent of any other employees.  The meaning of the term "concerted" is "activity by two or more employees."  The Board took care to acknowledge the importance of the issue being presented in the case:

The Board has long held that the filing of a lawsuit by a group of employees is protected activity. See D. R. Horton, 357 NLRB No. 184, slip op. at 2 fn. 4 and cited cases (2012), enf. denied in part 737 F.3d 344 (5th Cir. 2013). However, the Board has never been squarely pre- sented with the question presented here: whether a single employee who files a lawsuit ostensibly on behalf of himself and other employees is engaged in protected concerted activity. We hold that he is, based on the rea- soning of two recent Board decisions. 
In applying the principles and conclusions in Meyers II, as articulated in both D. R. Horton and Murphy Oil, the Board held that the filing of an employment-related class or collective action by an individual employee is an attempt to initiate, to induce, or to prepare for group action and is therefore conduct protected by Section 7.  

Recent EEOC Settlements in Pre-Employment Exam Cases

A couple of recent settlements obtained by the Equal Employment Opportunity Commission ("EEOC") once again highlight how some pre-employment exams and inquiries run afoul of the law.  

Any pre-employment test must be related to the job and the skills necessary for doing the job  and consistent with business necessity.   The EEOC has released a Fact Sheet on employment tests and selection procedures in an effort to display its stance on pre-employment exams, but, of course, some employers still manage to (arguably) violate these laws.
On September 24, 2015, the EEOC announced a settlement of a sex and age discrimination charge with a California trucking company that required applicants to perform physical strength tests.  According to the EEOC, the physical strength tests were not reasonably related to the job duties and had an adverse effect on female and older applicants. 
In August, Target Corporation agreed to pay $2.8 million to resolve an EEOC finding that certain pre-employment tests given to exempt-level positions and administered by psychologists were discriminatory because they were not job-related or consistent with business necessity.  The EEOC found that these exams discriminated against applicants based on race, sex and disability.   Target also agreed to a number of non-monetary provisions, such as eliminating the use of the exams. 

Hat Tip: JD Supra Advisor 

Tuesday, October 6, 2015

Mother of 5 Terminated After Two Weeks Cannot Make Sex Discrimination Claim Under Title VII

Plaintiff Julie Gingras ("Gingras") is a female who maintained primary care responsibilities and duties for her five (5) children.  During the interview and hiring process for an Educator Coordinator position with the Milwaukee County Behavioral Health Division ("BHD"), Gingras discussed her child care obligations and how those obligations would affect her work schedule.  Gingras also acknowledges that prior to the time she was hired by Milwaukee County, one of the interviewers, Mary Kay Bultman ("Bultman"), knew that she was female and that she had young children.

Prior to Gingras being hired, Bultman spoke to her, via telephone, about Gingras' start date when Gingras informed Bultman that she likely would not be able to find any child care for all of her children on sch short notice and that she could not begin her employment with the defendant on the date specified.  As a result, Bultman pushed back Gingras' start date.  Gingras then told Bultman that she would begin the process of securing child care after she received a written offer of employment, which Bultman said she would try and procure from defendant's Human Resources Department.  The offer Gingras eventually received specified that Gingras' start date was July 15, 2013, that her work hours were "the AM SHIFT (8:00am-4:30pm)," and that if she had any questions about her hours, she needed to address those with her supervisor.  Gingras maintained that at no time prior to receiving this offer of employment was she informed that her days and hours would be the "AM SHIFT."  Gingras contended that the defendant encouraged flexibility regarding her work schedule and hours.

Gingras began her employment on or about July 15, 2013 and was subject to a 6-month probationary period.  Much of the opinion then describes how Gingras took off of work to care for her children and what appeared to be big communication disconnect between her and Bultman, ultimately leading to Gingras' termination on July 30, 2013, less than two (2) weeks after she began her employment, after Gingras missed an entire day of work when Bultman thought she only needed to miss the morning portion.  Bultman told Gingras that she was not "a good fit" and refused to elaborate on what they meant.  Gingras was then replaced by another female.

Title VII Sex Discrimination

The defendant argued on summary judgment that Gingras could not maintain a sex discrimination claim under Title VII because no facts existed to support the assertion that gender played any part in her termination.  The Court agreed.

As the Court notes in their discussion, though the evidence may have allowed a jury to infer that Gingras was terminated in part because of her family responsibilities, there was nothing in the record to suggest that she was fired because she was a female.  The Court took care to mention that Title Vii does not prohibit discrimination on the basis of family responsibilities alone, but rather on the basis of family responsibilities plus gender (sex plus).

The Court noted that the defendant hired Gingras fully aware that she was a female with five (5) children and reality dictated that she would have family responsibilities and that Title VII is not a "get out of work free" card for parents with young children--whether male or female.  Despite the fact Bultman may have made comments about dissatisfaction with employees taking time off per FMLA and the collective bargaining agreement, the Court concluded that these comments were about female employees taking leave as opposed to male employees.

The plaintiff also failed to present any comparators (indeed, for some unusual reason, she presented two other female employees as comparators of disparate treatment) and likewise failed in showing pretext because she was replaced by another female.

The case is Julie Gingras v. Milwaukee County, Case No. 13-CV-1368-JPS (E.D. Wis.)

Tuesday, September 22, 2015

September Edition of the Employment Law Blog Carnival

Attorney Andrea W. S. Paris hosted this month's edition of the employment law blog carnival titled, "Post-Labor Day: Employment Law Blog" and is available here

Wednesday, September 16, 2015

11th Circuit Holds Florida Statute Disallowing Consideration of Hardship in Considering Enforceability of Noncompete Agreement Conflcts with Rule 65

Daniel MacLachlan was serving as the CFO of Trans Union Risk and Alternative Data Solutions, Inc. (TRADS).  MacLachlan signed a 1-year "Noncompetition and Nonsolicitation Agreement" with TRADS during his employment with TRADS, which, if he was terminated from TRADS, prohibited MacLachlan from "directly or indirectly":

(a) engag[ing] in a business...that is the same as or is similar to any Business conducted by [TRADS] during [MacLachlan's] employment ...[or];

(b) enter(ing) into any employment or business relationship with any person or entity that engages in a Business that is the same as or similar to any Business conducted by [TRADS] during [MacLachlan's] employment by [TRADS], including, without limitation,...Interactive Data LLC....

MacLachlan, several months after signing this noncompete agreement, resigned from TRADS and signed an employment agreement to become the CFO of TBO, a company that acquired Interactive.  MacLachlan did not inform TRADS of his new relationship with TBO.  

TRADS believed MacLachlan had gone to work for a competitor in violation of the noncompete agreement he signed with them and initiated an action to enforce that agreement and moved for a preliminary injunction.   MacLachlan contested the preliminary injunction arguing, inter alia, that TRADS had not demonstrated a substantial likelihood of success on the merits; that TRADS failed to establish irreparable harm; that the harm of the preliminary injunction to MacLachlan would outweigh any damage to TRADS; and that sections 542.335(1)(g)1, (j) of the Florida statutes did not govern the case.  After an evidentiary hearing on TRADS' motion, the district court granted the preliminary injunction, prohibiting MacLachlan for one year or until the final resolution of the cause, whichever is sooner, from "[c]ontinuing employment or association with [Interactive] or any affiliate or investor thereof" and from "[e]ngaging in a business or activity that is the same as or similar to any business conducted by TRADS."

Did the District Court Properly Grant TRADS' Preliminary Injunction?

In case anyone was wondering what this contract dispute was doing in federal court, it was a diversity action, with state substantive law and federal procedural law applied.  Thus, federal procedure was applied to determine whether the preliminary injunction was properly issued.  Therefore, under Rule 65, a moving party (TRADS) must establish four (4) elements to obtain a preliminary injunction:

"(1) it has a substantial likelihood of success on the merits;  (2) irreparable injury will be suffered unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest."  

The 11th Circuit noted that preliminary injunctions are "extraordinary" and "drastic" remedies that should not be issued unless the moving party clearly establishes each of the four (4) prerequisites.  

In 1996, Florida adopted Fla. Stat. section 542.335, which contains the substantive law to which courts look in "analyzing, evaluating and enforcing restrictive covenants contained in employment contracts."  The statute prescribes the elements necessary to state a prima facie claim to enforce a restrictive covenant and issues instructions to the courts when ruling on such claims.  Section 542.335(1)(g)1 governs the enforceability of a restrictive covenant and mandates:

(g) In determining the enforceability of a restrictive covenant, a court:  

1.  Shall not consider any individualized economic or other hardship that might be caused to the person against whom enforcement is sought.

Fla . Stat. sec. 542.335(1)(g)1.  Once a restrictive covenant is deemed enforceable, the statute prescribes certain rules for enforcement:

(j) A court shall enforce a restrictive covenant by any appropriate and effective remedy, including, but not limited to, temporary and permanent injunctions.  The violation of an enforceable restrictive covenant creates a presumption of irreparable injury to the person seeking enforcement of a restrictive covenant.

Fla. Stat. sec. 542.335(1)(j).

The 11th Circuit noted that Rule 65 is applied to the exclusion of any contrary state procedure.  See Ferrrero v. Associated Materials, Inc., 923 F.2d 1441, 1448 (11th Cir. 1991).  MacLachlan argued that Rule 65 should have been applied to the exclusion of Fla. Stat. sections 542.335(1)(g)1 and (j) while TRADS argued that the district court appropriately applied those subsections in determining whether Rule 65 had been satisfied.  

Under the Erie doctrine, the Court noted, "[t]he first step of the analysis is to determine whether [Rule 65 and section 542.335(1)(j) are in] conflict .... If no conflict exists, then the analysis need proceed no further, for the court can apply state and federal law harmoniously to the issue at hand."  The 11th Circuit ultimately concluded that, because Rule 65 and section 542.335(1)(j) apply harmoniously to TRADS' motion for preliminary injunction, the district court did not err in their application.

Florida's Excluded Use of Potential Hardship in Preliminary Injunction Analysis

MacLachlan also appealed the district court's application of section 542.335(1)(g)1 to the preliminary injunction analysis, which precluded any consideration of the potential hardship to MacLachlan when the court balanced the harms under Rule 65.
Section 542.335(1)(g) governs the enforceability of restrictive covenants, not the enforcement of an already enforceable restrictive covenant.  After all, the statute begins:  "In determining the enforceability of a restrictive covenant, a court ...."  It then goes on to list four (4) considerations that a court "shall" or "shall not" contemplate when determining whether a restrictive covenant is enforceable.  One of these considerations a court "shall not" consider is "any individualized economic or other hardship that might be caused to the person against whom enforcement is sought."  section 542.335(1)(g)1.

The 11th Circuit held that, "[h]ere, the district court erred when it applied section 542.335(1)(g) in determining whether a preliminary injunction was an appropriate and effective remedy for the enforceable restrictive covenant.  "Having erroneously applied section 542.335(1)(g), the district court failed to consider any harm that MacLachlan would suffer if the injunction issued.  Therefore, we must vacate the district court's order granting the injunction and remand this matter for the district court to balance the harms in accordance with Rule 65.

The case is Transunion Risk and Alternative Data Solutions, Inc., vs. Daniel MacLachlan, No. 15-10985.

EEOC Obtains $17 Million Jury Verdict in Sexual Harassment and Retaliation for Female Employees at Moreno Farms

The Equal Employment Opportunity Commission (EEOC) announced last week that it had obtained a jury verdict award of $17,425,000 to five former female employees of Moreno Farms, Inc., a produce growing and packing operation in Felda, Fla., who suffered sexual harassment and retaliation in violation of Title VII.   The summarized facts of the case are quite disturbing:
According to EEOC's suit, two sons of the owner of Moreno Farms and a third male supervisor engaged in graphic acts of sexual harassment against female workers in Moreno Farms' packaging house, including regular groping and propositioning, threatening female employees with termination if they refused the supervisors' sexual advances, and attempting to rape, and raping, multiple female employees.  All five women were ultimately fired for opposing the three men's sexual harass­ment.
EEOC filed suit in U.S. District Court for the Southern District of Florida after first attempting to reach a pre-litigation settlement through its conciliation process.  On Sept. 10, the jury returned a unanimous verdict in the Moreno Farms case, awarding $2,425,000 in compensatory damages and $15 million in punitive damages to the five female farmworkers. 

Tuesday, September 15, 2015

Federal Lawmakers Push for The Fair Chance Act

In an effort to help avert the stigmatism associated with having a criminal record when applying for jobs, a bipartisan group of federal lawmakers late last week introduced legislation, The Fair Chance Act, that prohibits federal agencies and contractors from asking about the criminal history of a job applicant until after a conditional offer is made.

People who may have checked Twitter the last several days may have seen #banthebox, which refers to the Fair Chance Act and refers to applications where applicants must check on an application whether they have a criminal record.  According to statistics, at least 70 million Americans have to check such a box.  Furthermore, men who report convictions are 50 percent less likely to receive a callback or job offer, with the rate being even higher for African-American men, cited Elijah Cummings (D-Md), one of the sponsors of the legislation. 

From The Huffington Post article on the bill:
The bill bars federal agencies from asking about a person's criminal history before a conditional job offer is made, with some exceptions, such as for law enforcement. Agencies would be prohibited from asking people bidding for government contracts to disclose their criminal records in advance of an award decision. Government contractors would, in turn, be subject to similar requirements. 
It is important to note that this bill only covers federal agencies and contractors and would not apply to private sector employers.  Thus, unless the specific state you reside in already "bans the box," then your criminal history is fair game before a conditional offer of employment is made.

Wednesday, September 9, 2015

Muslim Flight Attendant Suspended When Religious Accommodation Revoked

With Kim Davis and her refusal to issue marriage licenses to same-sex couples, the issue of religion and religious accommodations in the workplace have been at the fore.  Late last week came the story of Charee Stanley, a flight attendant for a small airline, ExpressJet, who was suspended, without pay, after her religious accommodation(s) were revoked.

Stanley began working for ExpressJet about three (3) years ago and converted to Islam and the Muslim faith about two (2) years ago.  Only recently did Stanley learn that her religion prohibits her from consuming and serving alcohol.  Thus, Stanley sought a religious accommodation with ExpressJet, which was granted.  Her supervisor at ExpressJet then told her to work out an arrangement for someone to fulfill passenger requests for alcohol, which she did.  This arrangement worked out quite well for several months until one of her coworkers filed a complaint against Stanley claiming she was not fulfilling her duties by refusing to serve alcohol. The employee complaint also said Stanley had a book with "foreign writings" and wore a headdress.  ExpressJet then revoked Stanley's religious accommodation and placed her on unpaid administrative leave, for some reason.

Title VII and Religious Accommodations

As taken from the Equal Employment Opportunity Commission's website on religious discrimination, the law requires an employer or other covered entity to reasonably accommodate an employee's religious beliefs or practices, unless doing so would cause more than a minimal burden on the operations of the employer's business. This means an employer may be required to make reasonable adjustments to the work environment that will allow an employee to practice his or her religion.
Examples of some common religious accommodations include flexible scheduling, voluntary shift substitutions or swaps, job reassignments, and modifications to workplace policies or practices.

An employer does not have to accommodate an employee's religious beliefs or practices if doing so would cause undue hardship to the employer. An accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work.

What all of this means, essentially, is that employer's are required to accommodate an employee's religion, unless doing so creates an undue hardship and it cannot cause more than a minimal burden on the operations of the employer's business.  What works against ExpressJet in this case is the fact they had granted Stanley's accommodation and it appears to have not created any undue hardship and to have been de minimis and was only revoked in response to a coworker's complaint.  What ExpressJet will have to argue is that the accommodation was serving as an undue hardship, which may or may not be easy to do--it will depend on the unique and particular facts.

Many have and will argue that Stanley ought to take another job or that she is being unfair in suddenly requiring an accommodation in the middle of employment.  However, the law does not require an employee to have to choose between their religion and their job IF the employer can reasonably accommodate the position and that is precisely the focus of the charge Stanley has filed and which her attorney is fighting.  Should Stanley lose this charge or subsequent lawsuit, then she will probably have to choose between serving alcohol or taking another position.  But, for now, she is making a valid argument that ExpressJet can accommodate her religion so that she may continue to serve as a flight attendant.  (I have a hunch the case will settle).

Wednesday, September 2, 2015

Wisconsin Unemployment and "Misconduct" vs "Substantial Fault"

For decades, in Wisconsin, whenever an employee was discharge (i.e., "fired," "terminated") from their job and applied for unemployment benefits, the inquiry was whether the employee (the "claimant") engaged in "misconduct."  The term "misconduct" is a legal term that was addressed in the seminal case of Boyton Cab Co. v. Neubeck, 237 Wis. 249, 259-60, 296 N.W. 636 (1941).  I discussed that case in an old post that can be found here.

Over the years, many employers and legislators believed that it became more and more difficult for employers to meet their burden and show misconduct and beginning on January 5, 2014, the State began considering a two-tier standard for disqualifying claimants who are discharged. A claimant is now disqualified if they are discharged for misconduct or for "substantial fault" connected with the employment.  As is true with any new language or change in the law, how this is to be interpreted in unemployment cases is still developing.

As amended by 2013 Wis Act 20, Wis. Stat. § 108.04(5g)(a) defines substantial fault as:
those acts or omissions of an employee over which the employee exercised reasonable control and which violate reasonable requirements of the job but shall not include:
1. Minor infractions of rules unless such infractions are repeated after a warning was received by the employee,
2. inadvertent mistakes made by the employee, nor
3. Failures to perform work because of insufficient skill, ability, or equipment.

As explained on the Department of Workforce Development's website:
An employee’s behavior may be substantial fault when the employee violates a requirement of the employer but the violation does not rise to the level of misconduct. Substantial fault does not include: minor violations of rules unless the employee repeats the violation after warning, unintentional mistakes made by the employee or not performing work because the employee lacks skill, ability, or was not supplied the equipment.
More than a year has passed since the Act 20 provisions were applied and there are ZERO cases on the Labor and Industry Review Commission's (LIRC) website discussing this standard.  Thus, at best, claimants ought to do their best to show the three (3) exceptions listed under Wis. Stat. sec. 108.04(5g)(a), though the burden remains with the employer to show misconduct or substantial fault.

As I always advise potential clients, if you are denied unemployment, or are receiving unemployment benefits and the employer has appealed, it is ALWAYS best to retain an attorney to represent you in these appeal hearings as, even though they are relatively relaxed, they can cost you a lot of money in overpayment and penalties.  

Thursday, July 23, 2015

Aurora Settles Federal Disability Discrimination Suit for $80,000

The Milwaukee field office of the Equal Employment Opportunity Commission ("EEOC") announced that Aurora Health Care, one of Wisconsin's largest employers, will pay $80,000 to settle a federal disability discrimination suit filed under the Americans with Disabilities Act ("ADA"). 

The lawsuit alleged that, in 2009, Aurora withdrew a job offer it had made to Kelly Beckwith ("Beckwith") for a position as hospice care coordinator upon learning during her pre-employment medical examination that she has multiple sclerosis (MS).  Beckwith had been diagnosed with MS some years earlier, but had not yet developed major symptoms. At the time she applied, Beckwith was working as a nurse and was fully qualified to perform the essential functions of the job.  Aurora attempted to argue that Beckwith did not disclose her MS.  The EEOC alleged that Aurora discriminated against Beckwith because of her disability by misusing confidential medical information to discriminate against her, and by using a qualification standard that tends to discriminate against those who are disabled.

The case was Equal Employment Opportunity Commission v. Aurora Health Care, Inc., Civil Action No. 12-cv-984.  

Wednesday, July 22, 2015

Title VII to be Amended to Protect Against Sexual Orientation and Gender Identity Discrimination?

Eric B. Meyer over at The Employer Handbook is reporting on a bill, called the "Equality Act," which will be introduced by Senator Jeff Merkley (D-OR) and several Senate Democrats as a “wide-ranging sexual orientation and gender identity discrimination bill.” A companion bill will also arrive in the U.S. House of Representatives.  Included in this wide-range of protections would be protection against discrimination in the workplace.  A fact sheet detailing the bill's plans can be found here.

As I have written about for several years now on this blog, the Employment Nondiscrimination Act ("ENDA") has failed time after time in Congress, and perhaps simply amending Title VII, especially with transgender and LGBT issues at the fore in the media lately, are all that is needed to provide for this much needed protection for thousands of employees across the United States as currently a majority of the states provide no protection, or limited protection for for the LGBT community in the workplace.

Stay tuned!

Abercrombie & Fitch Settle Supreme Court Case for $45,000

The now-famous Supreme Court case of EEOC vs. Abercrombie & Fitch Stores was recently settled for a mere $45,000.  That's right, only $45,000.  Abercrombie has agreed to pay Samantha Elauf $25,670.53 in damages and $18,983.03 in court costs.  Had Elauf been represented by a private law firm, the attorney's fees would have presumably been astronomical given this case went all the way to the SCOTUS.

Tuesday, July 21, 2015

EEOC Settles Age Discrimination Suit with Enterprice Rent-A-Car for $425,000

The Equal Employment Opportunity Commission (EEOC) announced last week that it had reached a settlement agreement with Enterprise Rent-A-Car Company of Los Angeles, LLC, a subsidiary of Enterprise Holdings, Inc., North America's largest rental car company.  Charges made to the EEOC alleged that job applicants over the age of 40 were passed over for hire into management trainee positions at the company's Burbank, Calif. location between 2008 and 2011 due to their age. An EEOC investigation determined that ten (10) job applicants over 40 were ultimately denied hire in favor of less qualified, younger applicants, a violation of the Age Discrimination in Employment Act (ADEA).  Though the local Enterprise company denied any wrongdoing, it has agreed to pay $425,000 to settle the charges and to enter into a 3-year conciliation agreement.

EEOC Holds Sexual Orientation Discrimination is Sex Discrimination Under Title VII

A temporary front line manager at a Federal Aviation Administration (FAA) facility in Miami, Florida, alleged he was not promoted to the permanent front line manager position because he was an openly gay man.  The FAA never reached a determination on the merits of the claim, and dismissed the complaint on the grounds it had not been raised in a timely fashion as required by EEOC regulations.  The complainant subsequently appealed the Agency's decision to the EEOC, which held that the complaint was timely.  And while the EEOC also did make a determination on the merits of the claim, they did conclude that Title VII forbids discrimination based on one's sexual orientation because it is a form of "sex" discrimination, which is consistent with an internal memorandum that was recently circulated instructing field offices to process and investigate sexual orientation, transgender, and gender identity claims

In reaching this decision, the EEOC held, "[s]exual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee's sex."  In reaching its conclusion, the Commission held "[d]discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms.  'Sexual Orientation' as a concept cannot be defined or understood without reference to sex," which is language from the landmark Supreme Court case of PriceWaterhouse v. Hopkins, 490 U.S. 228 (1989). 

The EEOC also addressed previous court decisions that rejected the argument that Title VII applied to sexual orientation discrimination because Congress, in 1964, did not intend Title VII to apply to sexual orientation and, therefore, Title VII could not be interpreted to prohibit such discrimination. The EEOC also rejected other court of appeals decisions that relied on the fact that Congress has  debated, but not yet passed, legislation explicitly providing protections for sexual orientation (referring to the Employment Non-Discrimination Act (ENDA)), holding instead:

[t]he idea that congressional action is required (and inaction is therefore instructive in part) rests on the notion that protection against sexual orientation discrimination under Title VII would create a new class of covered persons.  But analogous case law confirms this is not true.  When courts held that Title VII protected persons who were discriminated against because of their relationships with persons of another race, the courts did not thereby create a new protected class of "people in interracial relationships."

The EEOC referring to associational discrimination.  A very interesting decision and it may be nigh time for the U.S. Supreme Court to address the issue if ENDA continues to be shelved in Congress.

The case is Complainant v. Foxx, E.E.O.C., Appeal No. 0120133080 (July 16, 2015).

Monday, June 15, 2015

May Edition of Employment Law Blog Carnival is LIVE

Philip Miles over at Lawffice Space hosted this month's edition of the employment law blog carnival and it is available to read here.  Thanks, Phil!

Wednesday, June 10, 2015

4th Circuit Holds "Porch Monkey" Comments Amount to Hostile Work Environment

The Court of Appeals for the Fourth Circuit this past month joined other state and federal courts that have held that single racial epithet can amount to a racially hostile work environment under Title VII.  Though the facts are utterly key in employment law cases, the facts in Boyer-Liberto v. Fontainebleau Corporation (4th Cir. 2015) make the 4th Circuit's decision easy to understand. 

The plaintiff in Boyer-Liberto is an African-American who, within a single 24-hour period in 2010, was twice called a "porch monkey" and threatened with the loss of her job by her Caucasian manager while working as a cocktail waitress at the Clarion Resort Fontainebleau Hotel in Ocean City, Maryland.  When the plaintiff reported these incidents to the hotel's owner, she was fired.  The plaintiff then filed a complaint against the hotel alleging a hostile work environment and retaliation under Title VII.  The district court granted summary judgment in favor of the hotel, then a not-fully-unanimous panel of the 4th Circuit affirmed and subsequently vacated by a grant of a rehearing en banc.

In reversing summary judgment, the 4th Circuit underscored the Supreme Court's holding in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998), where it was held that a single isolated incident of harassment, if extremely serious, can create a hostile work environment.  This makes sense as think of an incident where a female employee is groped in her 'private part(s)' or a minority is called by the utmost offensive slur.  Surely one would not believe groping would have to occur more than once for it to give rise to a sexual hostile work environment claim.

Though Wisconsin is not within the jurisdiction of the 4th Circuit, the 7th Circuit, where Wisconsin is within, has indicated that a single instance of racial harassment can establish a hostile work environment in Daniels v. Essex Group, Inc., (7th Cir. 1991).

Tuesday, June 2, 2015

EEOC vs. Abercrombie & Fitch Stores

The United States Supreme Court this week issued its decision in the closely-followed failure-to-accommodate religion case filed under Title VII by the Equal Employment Opportunity Commission ("EEOC") against popular retailer, Abercrombie & Fitch.  Relatively surprising is that the decision was 8-1, with Justice Scalia delivering the opinion of the Court.  The lone dissenter was Justice Thomas, who was actually chairman of the EEOC under the Reagan administration.

I first blogged about this case about two years ago when the 10th Circuit reversed the EEOC's victory in district court.  As a brief summary of the case, again, the issue presented was whether Title VII's prohibition against an employer from hiring an applicant in order to avoid accommodating a religious practice that it could accommodate without undue hardship applies only where an applicant has informed the employer of his need for an accommodation.

Samantha Elauf is and was a practicing Muslim who, consistent with her understanding of her religion's requirements, wears a headscarf known as a hijab.  Elauf applied for a position in one of Abercrombie's stores and was interviewed and received a rating that qualified her for hiring.  However, the person that interviewed Elauf was concered that the hijab would conflict with Abercrombie's "Look Policy."  Toward that end, the interviewer went to the store manager for guidance to inquire as to whether the hijab was a forbidden "cap" under the Look Policy.  The store manager did not answer the interviewer so she then went to the district manager and told him that she believed Elauf wore the headscarf because of her faith.  The district manager told the interviewer that the headscarf would violate the Look Policy, as would all other headwear, religious or otherwise, and directed the interviewer not to hire Elauf.  Elauf then filed a charge with the EEOC and the EEOC then sued Abercrombie on her behalf, claiming that its refusal to hire Elauf violated Title VII.

The district court granted the EEOC summary judgment on the issue of liability, held a trial on damages, and awarded $20,000.  The 10th Circuit reversed and awarded Abercrombie summary judgment, holding that ordinarily an employer cannot be liable under Title VII for failing to accommodate a religious practice until the applicant (or employee) provides the employer with actual knowledge of his need for an accommodation.

Supreme Court's Decision

Scalia began by citing Title VII's two types of claims that may be brought:  disparate treatment and disparate impact claims.  Abercrombie argued that an applicant cannot show disparate treatment without first showing that an employer has "actual knowledge" of the applicant's need for an accommodation.  The SCOTUS disagreed.  Instead, the Court held, an applicant need only show that his need for an accommodation was a motivating factor in the employer's decision.

The disparate treatment provision forbids employers to:  (1) "fail ... to hire" an applicant (2) "because of" (3) "such individual's ... religion" (which includes his religious practice).  In breaking these elements down, the Court noted that Abercrombie (1) failed to hire Elauf and that (3) Elauf's wearing of a headscarf is a "religious practice."  Thus, the only existing issue and argument was whether she was not hired (2) "because of" her religious practice.

In discussing the term "because of," the Court noted that it typically imports, at a minimum, the traditional standard of but-for causation, but that Title VII relaxes this standard to prohibit even making a protected characteristic a "motivating factor" in an employment decision.  Furthermore, the Court stated, "it is significant that sec. 2000e-2(a)(1) does not impose a knowledge requirement."

The Court then stated, firmly, that "the rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward:  An employer may not make an applicant's religious practice, confirmed or otherwise, a factor in employment decisions." 

The Concurring Opinion

Justice Alito delivered the concurring opinion which essentially took issue with the majority opinion's seeming omission of the employer's inability in the case to posit the defense of undue hardship.  The majority opinion did reference undue hardship in a footnote stating:
For brevity's sake, we will in the balance of this opinion usually omit reference to the sec. 2000e(j) "undue hardship" defense to the accommodation requirement, discussing the requirement as though it is absolute.
Unless I am incorrect, I do not believe Abercrombie attempted to show undue hardship as a defense and more or less "hung its hat," so to speak, on their argument about not having actual knowledge of Elauf's religion or potential need for accommodation.

The Dissent

Justice Thomas delivered the lone dissent in this case claiming that the EEOC can only prevail if Abercrombie engaged in intentional discrimination, and that because Abercrombie's application of its neutral Look Policy does not meet that description, that he would affirm the 10th Circuit's decision granting summary judgment.

Justice Thomas believed Abercrombie's Look Policy was neutral and did not intentionally discriminate against any religion.  The problem, especially in this case, is the fact Abercrombie knew--either because of the obvious appearance of Elauf and her name--that Elauf is Muslim and more than likely needed to wear the headscarf every day because of her religion, and inquired about how to handle the hiring decision.  At that point, it's arguable Abercrombie knew that they would have to consider accommodating her religion and allowing her to wear the headscarf, in violating of their Look Policy, or, argue that her wearing the headscarf served as an undue hardship, which essentially means they'd have to argue that the headscraf would harm their sales and image--a public relations nightmare. 

Employment law cases are almost always reliant on detailed facts.  Thus, this case perhaps turns out different with one slight deviation in the facts.  I have read several articles in the aftermath of the ruling and the defense bars is making the decision perhaps out to be worse than it is by implicating employers will face liability without fault.  As I stated earlier in this post, Elauf's name, combined with the headscarf, prompted the Abercrombie interviewer to inquire about the Look Policy, which showed their decision not to hire her was based on her religion as she was otherwise rated as 'hire-able.'  If Abercrombie wanted to truly stick behind its neutral policy and/or argue undue hardship, they surely had opportunity to do so but they probably knew arguing that the "Muslim look" is not compatible with their marketing and target demographic would have surely doomed them.  

Thursday, May 28, 2015

EEOC Will Now Process and Investigate Sexual Orientation, Transgender, and Gender Identity Claims

The Equal Employment Opportunity Commission ("EEOC") issued an internal memorandum whereby field offices were instructed to handle LGBT charges as follows:

1) Complaints of discrimination on the basis of transgender status or gender identity-related discrimination should be accepted under Title VII and investigated as claims of sex discrimination in light of Commission precedent; and
2)  Individuals who believe they have been discriminated against because of their sexual orientation should be counseled that they have a right to file a charge with the EEOC, and their charges should be accepted under Title VII and investigated as claims of sex discrimination in light of Commission precedent.

The memorandum then sets forth several items of precedent both in private sector litigation and Commission actions.  Essentially, the EEOC is taking the position that discrimination based on sexual orientation may be grounded in sex-based stereotypes (e.g., that men should be sexually attracted to women and that women should be sexually attracted to men) and thus violate Title VII's prohibition on sex discrimination.  The EEOC also takes the position that complaints of sexual orientation discrimination can constitute "protected activity" for purposes of a retaliation claim under Title VII.

Currently, some federal circuits have held that Title VII does not prohibit sexual orientation discrimination, while other courts have expanded Title VII to allow such claims.  The 7th Circuit in Muhammad v. Caterpillar, Inc., (7th Cir. 12-1723) stated categorically that Title VII does not prohibit sexual orientation discrimination or related retaliation.  The EEOC approved participation as amicus curiae in support of panel rehearing the case.

Given the Employment Nondiscrimination Act ("ENDA") may never be passed given attitudes in both parties about LGBT rights, the EEOC's best hope (thought also unlikely) is for the Supreme Court to hold that Title VII does cover these types of claims so ENDA's passage does not become as necessary.

Luckily for Wisconsin employees, the Wisconsin Fair Employment Act ("WFEA") does prohibit discrimination on the basis of sexual orientation, though arguments similar to the EEOC's argument under Title VII could be applied to the WFEA for gender identity and transgender discrimination.

Wednesday, May 27, 2015

Wisconsin Court of Appeals Holds Promise of Continued Employment Constitutes Consideration in Restrictive Covenant

In a landmark case out of the Wisconsin Court of Appeals, the Court finally addressed the issue of whether an employer's forebearance of its right to terminate an existing at-will employee in exchange for the employee agreeing to a restrictive covenant constitutes lawful consideration.  The Court held that it does constitute lawful consideration for signing a restrictive covenant and further held, in addressing the circuit court's opinion that the employer's promise not to fire the employee immediately if he signed the restrictive covenant was an illusory promise and did not constitute consideration, that an employee would be protected by other contract formation principles such as fraudulent inducement or good faith and fair dealing.

The plaintiff in the case, David Friedlen, had been an employee of Runzheimer International Limited since 1993, as an at-will employee, but in 2009, Runzheimer required all its employees to sign restrictive covenants, preventing them from working for competitors for two years after employment with Runzheimer ended  (the Court of Appeals discussed the difference between covenants signed by current employees and covenants presented to new hires).  Friedlen signed the agreement, but was fired two years later.  Friedlen then consulted with an attorney on the enforceability of the restrictive covenant and was advised that it was unenforceable for lack of consideration and so Friedlen took a job with a competitor of Runzheimer which prompted them to file suit against both Friedlen and his new employer.  A Milwaukee County Circuit Court Judge held that the restrictive covenant's promise of continued employment was not lawful consideration and held the restrictive covenant as unenforceable.  Runzheimer then appealed.

In arriving at this conclusion, the Court noted that jurisdictions throughout the country are split o whether forebearance of the right to terminate an at-will employee is lawful consideration for an employee's promise to forego certain rights and that the jurisdictions that hold that a promise not to fire is not lawful consideration for a covenant not to compete represent the "distinct minority."  The Court also noted that the American Law Institute supports their holding.

The case was remanded back to circuit court because the record and arguments before the Court of Appeals was undeveloped on the issue of reasonableness of the covenant's terms.  Justice Shirley Abrahamson wrote a concurring opinion where she points out that the majority's holding is "ambiguous and troublesome."  After all, the Court held a promise of continued employment constitutes consideration but completely fails to address exactly how much continued employment is reasonable.  That is, what if an employee is fired one month later?  6 months later?  1 year later?  When might the principles of fraudulent inducement or good faith and fair dealing arise? 

Wednesday, May 20, 2015

May Edition of Employment Law Blog Carnival is Live! #ELBC

Attorney Jon Hyman of the Ohio Employer's Law Blog hosted this month's edition of the Employment Law Blog Carnival and it is available to read here.  Thanks, Jon! 

Wednesday, May 6, 2015

6th Circuit Holds That Regular and Predictable On-Site Job Attendance is an Essential Function

An often very difficult analysis when it comes to disabled employees is the issue of reasonable accommodations.  A recent decision out of the Court of Appeals for the Sixth Circuit discusses the issue in-depth, but to the peril of the employee-plaintiff.


The plaintiff, Jane Harris, was a resale buyer (i.e., a resale buyer of steel who purchases raw steel from steel supplies and then resells the steel to parts manufacturers known as "stampers") who suffered from rather severe irritable bowel syndrome ("IBS").  Harris worked for Ford Motor Company for a little over 6 years and won a few awards, being recognized for her "strong commodity knowledge" and "diligent" work effort.  However, over time, Harris' performance began to sink, and her attendance became unreliable, with her IBS contributing to the situation.

When Harris' IBS became so severe that she couldn't even make the hour drive to work, Ford tried to help by adjusting her schedule to help her establish regular and predictable attendance.  Toward that end, Harris was allowed to telecommute on an ad hoc basis in an "Alternative Work Schedule."  However, this did not succeed as Harris was never able to ultimate establish regular and consistent work hours and "failed to perform the core objectives of the job."  Ford then tried its "Workplace Guidelines," which is a reporting tool specially designed to help employees with attendance issues tied to illnesses.  These also failed.  However, even though both of these attempts failed, Harris still requested leave to work up to 4 days per week from home.  After all, she had been allowed to do it before, Ford's policy also said her job was appropriate for it, and several of her coworkers telecommuted.  As the Court would show and discuss, after discussing Harris' job in-depth, this was held to not be a reasonable accommodation because the employer's judgment as to Harris' attendance as an essential job function--evidenced by their words, policies, and practices and taking into account all relevant factors--is "job-related, uniformly-enforced, and consistent with business necessity."

Harris believed telecommuting was a reasonable accommodation, and the Equal Employment Opportunity Commission ("EEOC") agreed and filed suit on her behalf, alleging Ford failed to reasonably accommodate Harris' disability and that it discharged her in retaliation for filing her charge, both in violation of the Americans with Disabilities Act ("ADA").  The district court granted Ford's motion for summary judgment concluding that "working from home up to 4 days per week is not a reasonable" accommodation under the ADA and that "the evidence did not cast doubt on Ford's stated reason for terminating Harris' employment: poor performance."  The EEOC appealed, and a divided panel of the 6th Circuit reversed on both claims.  Review was granted en banc, vacating the panel's decision.

Reasonable Accommodation

The 6th Circuit, like most court of appeal decisions begin, discussed the ADA and reasonable accommodations, at-length.  The Court noted that Ford had a duty to reasonably accommodate Harris, if she is "qualified."  To be "qualified" under the ADA, Harris must have been able to "perform the essential functions of [a resale buyer]" "with or without reasonable accommodation."  A "reasonable accommodation" may include "job restructuring and part-time modified work schedules,
 but it does not include removing an "essential function" from the position, for that is per se unreasonable.   Harris was ultimately held to not be a "qualified individual" because her excessive absences prevented her from performing the essential functions of a resale buyer, and also, in a broader context, held that regular and predictable on-site job attendance is an essential function (and a prerequisite to perform other essential functions) of Harris' resale-buyer job.

The 6th Circuit obviously did not make a bright line rule and stated, "Much ink has been spilled establishing a general rule that, with few exceptions, 'an employee who does not come to work cannot perform any of his job functions, essential or otherwise'"  (Emphasis added).  Further, the 6th Circuit wrote, "That general rule ... aligns with the text of the ADA.  Essential functions generally are those that the employer's 'judgment' and 'written job description' prior to litigation deem essential.  And in most jobs, especially those involving teamwork and a high level of interaction, the employer will require regular and predictable on-site attendance from all employees (as evidenced by its words, policies, and practices)."

The Court held that the EEOC could not show that regularly attending work was merely incidental to Harris' job because it was essential to her job and that the employee bears the burden of proposing an accommodation that will permit her to effectively perform the essential functions of her job.  However, Harris only proposed one accommodation and that accommodation sought to eliminate an essential functions from her job therefore making it unreasonable.  The Court then showed how Harris' previous attempt at telecommuting failed and how her coworkers seldom telecommuted.

Because the Court concluded Harris was unqualified for her position then made it unnecessary for them to consider whether Ford showed bad faith in the discussions to work out a reasonable accommodation while Harris was still employed, but they did anyway and discussed how Ford did attempt to work with Harris a couple of times to allow her to regularly and predictably attend work, to no avail. 

Retaliation Charge

Given Harris' slipping performance and her failure to improve under a performance plan, the Court held that no reasonable jury could have found that Harris' EEOC charge was the reason she was terminated (i.e., "but-for" her charge, she would not have been terminated).

The case is EEOC v. Ford Motor Co., No. 12-2482 (6th Cir., Apr. 10, 2015)

Thursday, April 23, 2015

EEOC Settles First of Its Transgender Lawsuits

Currently, there is no specific ban on employment discrimination against those in the LGBT community has ENDA has been stalled once again.  However, the Equal Employment Opportunity Commission (EEOC) has been innovative in using the ban on sex discrimination under Title VII in pursuing these claims under the theory of failure to conform to gender stereotypes and norms.  

Toward that end, last September the EEOC filed its first two lawsuits against private employers alleging sex discrimination under Title VII based on gender identity.  One of those lawsuits against Lakeland Eye Clinic of Florida has settled with the Clinic agreeing to make two payments of $75,000.  The represented plaintiff in that suit, Brandi Branson, had been the Clinic's Director of Hearing Services.  Branson had been hired as a male and began transitioning to female after about six months on the job. The lawsuit claimed that doctors all but stopped referring patients to her and that her position was eventually eliminated in a bogus “RIF.”(A replacement was reportedly hired into the “eliminated” position only two months later.)  The EEOC alleged that the Clinic violated Title VII by discriminating against Ms. Branson because of her sex (failure to conform to gender stereotypes).

The other EEOC lawsuit,  EEOC vs. R.G. & G.R. Harris Funeral Homes, Inc. (Case No. 14CV13710 E.D. Mich), against a funeral home operation in the Detroit area, is still pending.