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.