Personal Journal May Be Protected Activity 2019-12-18T09:20:48-07:00

Posted on December 18, 2019

In Fischer v. Sentry Ins. A Mutual Co., an employee kept a log of when she felt sexually harassed or discriminated against by her employer. The log went missing shortly before the company fired her. In her retaliation complaint, the employee essentially asked the Court to infer her employer was aware of the log and that it was no coincidence they fired her after becoming aware of her list of harassment and discrimination. The Court found that although the employee’s theory was speculative, it was plausible, and her retaliation claim survived the employer’s motion to dismiss.

In the end, for the log to constitute protected activity under Title VII, the employee will still be required to prove the employer actually knew of her complaints in the written log. At only the pleading stage, however, the Court steered away from dismissing the claim before the employee had a chance to conduct discovery about her employer’s knowledge and notice of her complaints. The court reasoned that outright dismissal would discourage employees from keeping a written record of discrimination or from planning future lawsuits for fear of retaliation if their notes were found by their employer, and protecting such employee activity is the purpose of the Title VII retaliation provision.

Fischer v. Sentry Ins. A Mutual Co., No. 19-cv-00156-bbc, 2019 U.S. Dist. LEXIS 214434, at *1 (W.D. Wis. Dec. 10, 2019)

OFCCP Renews Focus on Disabled Individuals, Veterans, and Military Spouses 2019-11-15T12:36:14-07:00

Posted on November 15, 2019

By Matt Morrison

Last week was busy for the Office of Federal Contract Compliance Programs (“OFCCP”), the anti-discrimination watchdog that oversees the nation’s federal contractors and subcontractors. On November 8, OFCCP Director Craig Leen announced that the agency will soon begin selecting contractors for “focused reviews” of their compliance with Section 503 of the Rehabilitation Act. Section 503 bars contractors from discriminating against individuals with disabilities. The same day, the agency released a list of 500 contractors selected for an initial round of focused reviews under the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (“VEVRAA”), and it issued a new directive highlighting VEVRAA’s protection of military spouses.

A “focused review” is an OFCCP compliance evaluation that is narrowly tailored and focused on specific issues. Here, OFCCP’s focused reviews will evaluate whether contractors are complying with nondiscrimination and affirmative action rules for disabled individuals and protected veterans. According to OFCCP, these reviews will include onsite visits to contractors and interviews with managers responsible for compliance – such as, for example, Human Resources personnel or ADA coordinators. OFCCP will also seek “to evaluate hiring and compensation data,” and for disability reviews, “the handling of accommodation requests.” The agency’s new directive also mandates that, during broader compliance reviews, compliance officers must evaluate contractors’ treatment of spouses of protected veterans.

Federal contractors and subcontractors should review their compliance with the agency’s affirmative action regulations for disabled individuals and protected veterans. The regulations, which OFCCP significantly revised in 2013, set specific “aspirational” benchmarks for the recruitment and hiring of disabled individuals and protected veterans, and impose an array of additional requirements on contractors. For example, under the revised regulations, which went into effect in March 2014, contractors must invite their employees to self-identify as disabled or as veterans at least every five years. It may be time for contractors to re-survey their workforce.

EEOC Weighs In On NLRB Protections For Offensive Statements 2019-11-11T11:16:34-07:00

Posted on November 11, 2019

By James Korte

Recently, the National Labor Relations Board (“NLRB”) invited the public to file amicus briefs regarding the treatment of “profane outbursts and offensive statements of a racial or sexual nature.” Gen. Motors LLC & Charles Robinson, 368 NLRB No. 68 (Sept. 5, 2019). The Equal Employment Opportunity Commission (“EEOC”) accepted the invitation.

The EEOC and NLRB have similar duties to protect employees’ rights, but the two government agencies treat employees’ use of hostile or offensive language differently. See John Alan Doran, NLRB Benchslap: Enabling Racism/Sexism (Sept. 20, 2016). Numerous NLRB decisions have held that a worker’s use of racial slurs may be protected concerted activity. See, e.g., Detroit Newspapers, 342 NLRB 223, 268-69 (2004). The EEOC says that the use of racial slurs, depending on the circumstances, may violate Title VII. In its Brief, the EEOC focused on the employer’s obligation to prevent and correct harassment in the workplace, which serves the primary objective of Title VII “to avoid harm.” See Faragher v. City of Boca Raton, 524 U.S. 775, 806 (1998). Ultimately, the EEOC urged that this objective is best served “by encouraging employees to complain of harassing conduct even before it become[s] actionable, so that employers can prevent an actionable hostile work environment.” While the EEOC did not take a definitive position on what standard the NLRB should adopt, it did advise the NLRB to consider a standard that allows employers to take action to correct forms of communication that violate Title VII or other antidiscrimination statutes, even though the communication might be protected concerted activity.

The EEOC does not always look at issues from the employer’s point of view, but its amicus brief shows that it understands the “catch-22” that employers face when attempting to protect an employee’s rights before the NLRB, while also keeping the workplace free of discrimination and harassment. It will be interesting to see how the NLRB addresses the EEOC’s concern, and whether it changes its standards.

Policing Gender Stereotyping 2019-11-08T10:15:56-07:00

Posted on November 8, 2019

By Alyssa Levy

A jury awarded a sergeant of the St. Louis County Police $19.9 million for his sexual orientation discrimination and retaliation claims in state court. Keith Wildhaber v. St. Louis County, Missouri, No. 17SL-CC00133 (Mo. Cir. Ct. 21st Cir. October 25, 2019). The plaintiff said the police department passed him over for promotion 23 times, and transferred him from his afternoon shift to an overnight shift at a precinct nearly 30 miles from his home. The plaintiff received “advice” from a Police Department board member to “tone down the gayness” in order to receive a promotion, and senior commanders referred to the plaintiff as “fruity.”

For the discrimination claim, the jury awarded $1.98 million in actual damages and $10 million in punitive damages. For his retaliation claim, the plaintiff received $999,000 in actual damages and $7 million in punitive damages. The County will likely appeal the damage award, but the jury’s message broadcasts loud and clear: discrimination based on gender stereotyping in today’s work environment is appalling.

The extraordinary damages award in Wildhaber is based on the U.S. Supreme Court decision on gender stereotyping in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Price Waterhouse passed over Ms. Hopkins for promotion and told her she needed to “walk more femininely, talk more femininely, dress more femininely, wear makeup, have her hair styled and wear jewelry.” The Court held that gender stereotyping is a form of sex discrimination.

Thirty years later, there is still a fight at the federal level to define sex discrimination under the law. On October 8, 2019, the Supreme Court heard three cases on the issue of whether sexual orientation and gender identity should be covered by the existing federal ban on “sex discrimination” under Title VII. These cases are Altitude Express v. Zarda, Bostock v. Clayton Cty., Ga, and R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC. If the Supreme Court holds that it is lawful to discriminate against gay or trans workers, it could upend the 30-year-old rule against gender stereotyping.

NLRB Enhances Its View of Property Rights 2019-09-06T17:13:53-06:00

Posted on September 6, 2019

By Patrick Scully

The National Labor Relations Board (“NLRB” or “Board”) has settled a long-brewing controversy over what constitutes “discrimination” with respect to non-employee access to employer property. Twenty years ago, the Board held in Sandusky Mall, 329 NLRB 618 (1999), that an employer discriminates against non-employee union representatives if it bars them from its property while permitting access to charitable and civic organizations.

The Sandusky decision was widely criticized in the United States Courts of Appeals. The decision also put employers in the unenviable position of weighing the legal risk of permitting the Girls Scouts and Salvation Army on their property. Today, the NLRB finally overruled Sandusky and adopted a definition of discrimination that accords with the prevailing view in the federal courts.

Now the NLRB will only find that an employer has discriminated in its denial of access to union representatives if it permits access to other organizations for similar types of activities. The Board no longer considers charitable, civic, and commercial activities to be similar to nonemployee union organizational activities. In applying its new rule to the case at hand, the NLRB found that Kroger did NOT discriminate when it barred non-employees urging a boycott of Kroger while permitting various charitable and civic entities on its property. In dissent, Member McFerran complained that the majority is issuing a series of cases making “it increasingly easy” for employers to exclude union organizers from property “open to the public”.

Kroger Mid-Atlantic, 368 NLRB No. 64 (September 6, 2019).

In a Goldilocks-Esque Decision, the Eleventh Circuit Finds a “Similarly Situated in all Material Respects” to Be Just Right 2019-04-01T14:04:55-06:00

Posted on April 1, 2019

By Amy Knapp

What does it mean within the context of the McDonnell Douglas burden-shifting framework for a plaintiff to show she was treated less favorably than other “similarly situated” individuals? The U.S. Court of Appeals for the Eleventh Circuit has cleared up this oft-debated aspect of a plaintiff’s prima facie burden in Lewis v. City of Union City by holding that “similarly situated” means “similarly situated in all material respects.” On March 21, 2019, sitting en banc and ruling in favor of an employer on summary judgment, the Eleventh Circuit nixed other “similarly situated” standards and instead espoused its new “similarly situated in all material respects” standard. This new standard, and the Court’s application of it, is a big win for employers, but it leaves open questions about what aspects for comparison are indeed “material.”

In this case, the plaintiff argued for the Seventh Circuit’s approach, which finds employees to be “similarly situated” so long as the distinctions between them are “not so significant that they render the comparison effectively useless.” The Eleventh Circuit rejected this approach, calling it “too lax,” and explained that, if adopted, it would eliminate the “apples-to-apples” comparison required to determine if an employer has engaged in discrimination. The employer argued for a “nearly identical” standard, which the court rejected as “too strict.” In the real word, true doppelgangers are rare, and, moreover, exact correlation isn’t necessary to show discrimination.

Thus, rejecting standards that were too lax and too strict,, the Court created a middle ground and put forth the “similarly situated in all material respects” standard. Under that standard, ordinarily, a similarly situated employee will have some key similarities to the plaintiff, including: (1) having engaged in the same basic conduct (or misconduct); (2) having been subject to the same employment policy, guidelines, or rule; (3) will (typically) have worked for the same supervisor; and (4) will share the plaintiff’s employment or disciplinary history. Notably, the Court explained that the comparator need not have the same job title or precisely the same job functions.

The Court’s new standard, and particularly its application of that standard, is a significant win for employers (at least those in the Eleventh circuit, where Alabama, Georgia, and Florida sit). However, what is and is not a “material” basis for comparison will always be a moving target; it will depend on the facts of the case and on how broadly or narrowly a court views each factor. But, at least now employers have some guideposts.

Supervisor’s Racial Epithets are “Hellish” Enough 2019-02-22T11:24:49-07:00

Posted on February 22, 2019

By Chance Hill

A defendant-employer won summary judgment on a racially hostile environment claim. The district court reached back to old cases and said the employee-plaintiff had to show the work environment was “hellish” to be actionable. On February 20, 2019, the Seventh Circuit disagreed.

The Seventh Circuit rejected the “hellish” standard, stating that a plaintiff’s evidence need not amount to the equivalent of the Ninth Ring or a descent into the Inferno. It also underscored that the district court’s analysis was flawed because it overlooked the difference between a co-worker uttering racially offensive remarks as opposed to a supervisor’s use of such toxic language—the latter of which is much more serious, according to the appellate court. The Seventh Circuit added that this concern is magnified when supervisors make derogatory and humiliating comments directly to the employee in question, compared to situations in which the employee may hear offensive comments secondhand.

The literary lessons here are twofold: (1) Dante’s Inferno did not set the bar for impermissible harassment, and (2) Marshall McLuhan’s famous phrase “the medium is the message” applies with great force to workplace harassment—toxic language coming from a co-worker is bad, but toxic language from a supervisor is terminal.

Fred Gates v. Board of Education of the City, No. 17-3143 (7th Cir. 2019)

Opening the Door to Discrimination Claims Under the Arizona Medical Marijuana Act 2019-02-12T10:52:21-07:00

Posted on February 12, 2019

By Lindsay H.S. Hesketh & Matthew A. Hesketh

A medical marijuana cardholder and her employer went to court. The employer had a policy prohibiting employees from working under the influence of marijuana and fired the cardholder when her drug test (taken after a workplace accident) showed the presence of marijuana metabolites. The District Court of Arizona made findings on two novel issues under the Arizona Medical Marijuana Act (“AMMA”): (1) AMMA creates a private cause of action for discrimination claims; and (2) Arizona’s Drug Testing of Employees Act (“DTEA”) permits employers to terminate an employee based on the results of a drug test, but only if test results showed a concentration of metabolites sufficient to cause impairment at work. With those decisions in hand, the court – on its on motion – granted the med-mar cardholder summary judgment.

Private cause of action. AMMA prohibits employers from discriminating against a cardholder for testing positive for marijuana metabolites unless the cardholder used, possessed, or was actually impaired by marijuana on the job. Impairment on the job cannot be presumed just because some marijuana metabolites are present in a sample; there must be such a high level of metabolites that the employee must have been impaired. Relying on case law interpreting similar provisions in Connecticut and Delaware, the court found that AMMA’s anti-discrimination provision implied that employees could sue over illegal discrimination.

Harmonizing the DTEA and AMMA. The DTEA, enacted after AMMA, allows employers with a proper drug testing policy to act on their “good faith belief” that an employee was impaired on the job. That “good faith belief” may be based on, among other things, the results of a drug test. But the court interpreted the DTEA to be consistent with AMMA. Thus, the “good faith belief” must be based on a positive drug test that shows such a concentration of marijuana metabolites that it establishes the employee was impaired on the job. Because the defendant in this case did not present expert testimony concerning whether the plaintiff’s test results met that threshold, the court turned around and granted summary judgment for the employee.

Arizona employers with DTEA-compliant drug testing policies still have to be cautious. If they take adverse employment action against an employee who possesses a medical marijuana card and who tests positive for marijuana metabolites, they have to prove the metabolites were the right kind, and were present in a high enough concentration, to cause impairment. According to the court, this proof requires a scientific expert.

To read the full decision, see Whitmire v. Wal-Mart Stores Inc., No. CV-17-08108 (D. Ariz. Feb. 7, 2019).

Fifth Circuit Judge Diagnoses Transgender Discrimination Divide Under Title VII 2019-02-08T19:03:00-07:00

Posted on February 8, 2019

By Lindsay H.S. Hesketh, Beth Ann Lennon & Bill Wright

U.S. Courts of Appeals are split over whether Title VII prohibits discrimination on the basis of sexual orientation and/or transgender status. See: https://shermanhoward.com/second-circuit-rules-title-vii-protects-sexual-orientation/; https://shermanhoward.com/transgender-claim-meets-dress-code/; https://shermanhoward.com/update-faragher-ellerth-policies/. A judge on the Fifth Circuit Court of Appeals recently offered his explanation for the divide and a justification for the “traditional,” limited, view of Title VII.

The case was decided on the strength of the employer’s legitimate non-discriminatory reason for the employment action. But in a concurring opinion, Judge Ho gave his view on the sexual orientation/ transgender debate. He suggests the debate comes down to a choice between two interpretations of the statutory text: (a) Title VII means we should not favor one sex and (b) Title VII means we should be blind to sex when making employment decisions. On the anti-favoritism view, Title VII prohibits giving preference based on biological (and possibly, binary) sex, e.g., employers cannot favor biological males over biological females or vice versa. Judge Ho writes that the gender identities and sexual orientation of men and women would not be factored into Title VII on this analysis. On the blindness view, Judge Ho argues that Title VII would prohibit any form of distinction among sexes. According to the Judge, the blindness view could result in a slippery slope for employers. His primary examples are that employers may be prohibited from maintaining separate bathrooms and changing rooms based on sex.

Judge Ho also gives his reasons for believing the traditional, limited, interpretation of Title VII should prevail: The issues of discrimination because of sexual orientation and/or transgender status are too large for the courts to believe Congress meant to resolve them with just the phrase “because of sex.” According to the Judge, Congress will have to resolve the issue.

Regardless of whether employers agree or disagree with Judge Ho’s concurring opinion, they should be aware of federal, state, and local laws in their jurisdiction(s) that might specifically address sexual orientation, gender identity, and transgender status discrimination, as well as the fact that the EEOC continues to take the position that Title VII already prohibits discrimination on the basis of sexual orientation or transgender status. Furthermore, employee-relations involves more than just following the laws. In dealing with this often touchy subject, employers should also consider their mission statements, diversity and inclusion policies, and the values they want to project to their employees, clients, and stakeholders.

Wittmer v. Phillips 66 Company, No. 18-20251 (5th Cir. Feb. 6, 2019).

When Trying to Be “Kind” Backfires 2019-01-25T16:35:17-07:00

Posted on January 25, 2019

By Lindsay Hesketh

A federal District Court in Michigan recently found that a plaintiff had presented enough direct evidence of age discrimination to merit a trial. The plaintiff worked as a member of defendants’ kitchen staff for about two months. The day after his termination, plaintiff met with the company’s owner to discuss the situation further. Unbeknownst to the owner, the plaintiff recorded the conversation.

On the recording, the owner said the plaintiff had not been “fitting in” with the rest of the staff. At one point, plaintiff stated, “So you think it’s probably the age difference.” The owner responded, “I think that’s probably a big part of it, from day one.” The conversation continued in a similar fashion.

The plaintiff filed a Charge with the EEOC alleging age discrimination and eventually filed suit against his former employer and its owners. When confronted with the recorded conversation, the owner explained that he “was trying to soften the blow,” “thought it was the kind thing to do,” and “was just trying to make [the plaintiff] feel a little bit better” about the termination.

Lesson learned? While compassion may play an important role in the employee-separation process, employers have to pay attention to how that compassion is displayed. It isn’t “kind” to blame an employment decision on the employee’s age, race, sex, disability or any other protected characteristic; if anything, it is likely to seem unfair – both to the employee and to the court and jury.

Sicuso v. Carrington Golf Club, LLC

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