Landmine in the Eleventh Circuit 2018-09-25T16:07:07-06:00

Posted on September 25, 2018

When Kia discovered that its human resources manager had encouraged an employee to file a charge of discrimination, Kia discharged the HR manager. Kia decided it could not trust the HR manager to do her job, specifically, to refer employees to the internal complaint system, protecting Kia from litigation. The HR manager sued for retaliation, asserting that Kia fired her because she had engaged in protected activity under Title VII.

The district court granted summary judgment in favor of Kia, but the Eleventh Circuit reversed. The HR manager’s deviation from Kia’s internal procedures and her support for the employee’s filing a charge could have been a violation of the HR manager’s job duties. In this case, however, the HR manager had tried to use Kia’s internal procedure for addressing complaints of discrimination, and the procedure had proven insufficient. Thus, the court found it was arguably reasonable for the HR manager to encourage the complaining employee to file a charge.

A dissenting judge called the decision a “landmine” for employers. An HR manager cannot work to resolve complaints internally while also urging coworkers to file lawsuits. But the decision may be more of a pitfall than a landmine. Kia’s responses to the HR manager’s internal referrals were (allegedly) so inadequate that they warranted the HR manager evading the internal system altogether. This was the HR manager’s saving grace on appeal.

Employers’ internal reporting and investigation procedures have to work. Otherwise, all employees, even HR employees, would be justified in going straight to the EEOC.

The case is Gogel v. Kia Motors Manufacturing of Georgia, Inc., Case 3:14-cv-00153 (11th Cir. Sept. 24, 2018).

Best Practice Derailed by the Details 2018-08-30T10:31:05-06:00

Posted on August 30, 2018

By James Korte

The EEOC has suggested that a manager’s performance evaluation should include the manager’s compliance with Equal Employment Opportunity (EEO) laws. More information. Keep in mind that such a grading system must be applied in a way that does not itself discriminate against employees based on their protected characteristics. In a recent District Court case, an employer withheld a manager’s discretionary bonus because he had fired an employee on medical leave, without receiving approval from labor relations. The discretionary bonus program rewarded full-time managers on a number of factors including compliance with the employer’s policies. Terminating the employee without consulting Labor Relations violated policy, but the employer explained the withheld bonus to the manager as caused by the Caucasian manager firing an African American employee.

The manager sued the employer, alleging discrimination, and the case will have to proceed to trial; all because of the employer’s injudicious explanation of the manager’s violation of policy. Even when employers follow suggested best practices – by, e.g., rating managers on policy compliance – in implementing the practice, the details matter. In this case, a little better explanation of the purpose of checking with labor relations before terminating an employee would have gone a long way.

The Case is Trost v. UPS Ground Freight, Inc., No. 17-C-4415 (N.D. Ill. Aug. 27, 2018).

CCRC Gets Benchslapped 2018-06-07T10:10:23-06:00

Posted on June 7, 2018

By Mercedes Pineda

Most everyone watching the news these days has heard of the Masterpiece Cakeshop case, which challenges the Colorado Civil Rights Commission’s ruling that a baker broke the law when he refused to bake a wedding cake for a same-sex couple on account of his own devoutly Christian beliefs. The case presents a conflict between the First Amendment right to religious freedom versus the authority of the states to protect the rights of gay and lesbian persons. Many of us have been following the Masterpiece Cakeshop case in front of the U.S. Supreme Court with the expectation that a decision that could have ripple effects on various anti-discrimination laws. Monday, the Court ruled 7-2 in favor of the bakery. However, the decision was based on very narrow grounds and did not resolve the bigger questions raised in the case. The Court held the Colorado Civil Rights Commission’s treatment of the baker’s case violated the State’s duty under the First Amendment because its enforcement of the Colorado Anti-Discrimination Act was flawed. It noted that the “commission’s consideration of Phillips’ case was neither tolerant nor respectful of his religious beliefs.”

Although the ruling in the case was not as significant as expected, it still warrants mention. In particular, the decision does not invalidate the Colorado Anti-Discrimination Act or other states’ equivalents, nor does it provide a new defense for businesses/employers seeking to avoid claims under state civil rights laws. The ruling here truly turned on the Colorado Commission’s failure to provide a fair and neutral process in this particular case. The Court left the door open to potentially decide on LGBT civil rights issues in future.

Proposed Bill Would Nix Pay Q’s. 2018-04-17T14:33:22-06:00

Posted on April 17, 2018

By Brooke A. Colaizzi

A bill introduced last week in the Colorado House of Representatives would make it an unfair employment practice under Colorado’s Antidiscrimination Act (CADA) for an employer to seek earnings history for job applicants.

The prohibition in HB 18-1377 would apply to questions, whether oral or in writing, about past compensation or benefits unless (1) the employer has documentation that it notified the applicant of the wage or salary range for the job opening; or (2) the applicant voluntarily agreed to discuss past salary or benefits. In other words, unless an applicant agreed to the discussion, the employer would be required to preset a wage or salary range in order to broach the subject with applicants.

By including the prohibition in CADA, an applicant who was improperly asked about pay history would be able to seek damages including lost wages, emotional distress damages, punitive damages and attorney fees.

The Colorado legislative session is set to adjourn May 9, 2018.

Pay History Won’t Satisfy Equal Pay Act 2018-04-09T16:27:49-06:00

Posted on April 9, 2018

By Brooke A. Colaizzi

The Ninth Circuit overturned its own precedent today and ruled that employers cannot justify a pay disparity between men and women by relying on employees’ past salaries. Rizo v. Yovino, No. 16-15372 (9th Cir. Apr. 9, 2018).

The Equal Pay Act requires that men and women receive equal pay for equal work. Employers can defend a pay disparity through one of four statutory exceptions, one of which is “any factor other than sex.” Historically, many employers have defended Equal Pay Act claims by proving that certain pay disparities were the product of market conditions, including employees’ pay at previous employers. In the past, the Ninth Circuit Court of Appeals has recognized and accepted this defense. However, the Ninth Circuit has now concluded that any such factors must be job-related, and prior salary, alone or in combination with other factors, is not job-related.

Employers in states and territories within the Ninth Circuit (Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon, and Washington) should immediately review their hiring and pay practices in light of this decision.

Legislation has been introduced in the Colorado General Assembly each of the last two years which would have prohibited employers from asking applicants about their previous pay, on the theory that consideration of past pay carries forward any past pay discrimination. The Ninth Circuit’s opinion adopts that reasoning. Although the Ninth Circuit does not cover Colorado, this decision and any others like it will give this type of legislation traction and make it more difficult for employers to justify any consideration of pay history. That being said, we can expect that, somewhere down the road, this issue will be resolved by the Supreme Court.

EEOC Brags While Employees Look for New Jobs 2018-04-03T16:45:14-06:00

Posted on April 3, 2018

By John Alan Doran

On April 2, 2018, the EEOC issued a self-congratulatory press release in which it bragged mightily about a $100,000 judgment it just obtained in a discrimination lawsuit. The press release identified the defendant in the lawsuit as an Arizona wine bar by the name of 5th & Wine. The press release is a model of how not to toot your own horn.

First, 5th & Wine went out of business. It no longer exists. In Monty Python parlance, “it’s a dead parrot!” So, the EEOC’s victory will be little solace to all of the 5th & Wine employees who are now out of a job. And one is left to wonder whether the bar’s demise (and the consequent unemployment of its employees) had something to do with the EEOC litigation itself, which is always a costly affair.

Second, after the EEOC describes its brilliant victory, the press release eventually discloses that 5th & Wine ultimately did not even defend itself in the lawsuit; the court entered a judgment in favor of the EEOC by default. It was a cheap, walkover win. This is hardly the stuff a federal agency should crowing about. To the contrary, the press release confirms the EEOC’s tone-deafness; the EEOC is shown to be ignorant of the widespread consequences of its aggressive litigation style, while displaying a disturbing bent toward self-promotion in what is supposed to be an unbiased agency.

Modern Recruiting Hits a Snag 2017-12-22T09:52:20-07:00

Posted on December 22, 2017

By Bill Wright

The former general counsel of the EEOC under President Obama leads a team that is giving many, many employers an early holiday nightmare. A union and a class of plaintiffs are seeking damages from a class of employers; if your company uses Facebook for recruiting, your company might be a defendant in this case.

The allegations include the claim that, when setting up a job ad on Facebook, employers designate the group they want to reach, by location, age, and gender. The identification might be by age range, or by demographic euphemisms like “Millennial” or “Young and hip.” Those of us who remember recruiting before the internet will be aware of the risks involved in targeted advertising. This is the same thing, but with thousands of employers at risk in a single lawsuit.

The case is Communications Workers of America et a. v. T-Mobile US, Inc., et al., Case No. 5:17-cv-07232 (N.D. Cal.). Watch this space for updates.

Happy holidays!

Supreme Court Avoids Sex Orientation Case 2017-12-14T15:50:36-07:00

Posted on December 14, 2017

By Bernie Siebert

In an move that surprised many Supreme Court watchers, the Court declined to hear the case of Evans v. Regional Hospital et al. The case raised the issue of whether the prohibition in Title VII against employment discrimination because of sex encompasses sexual orientation. The Eleventh Circuit ruled that Title VII did not encompass sexual orientation. The panel did however hold that “discrimination based on gender non-conformity” is actionable. The line between sexual orientation discrimination and gender non-conformity discrimination as sex discrimination is blurry at best. Gender non-conformity appears to be where a gay or lesbian plaintiff exhibits at work overt mannerisms, appearance, and behavior that is stereotypical of a gay or lesbian. A plaintiff who is gay or lesbian, but who does not exhibit the stereotypical mannerisms, behavior, or appearance yet is known to be gay or lesbian fares less well with a claim of sex discrimination. The Seventh Circuit has held that sexual orientation discrimination is prohibited by Title VII in Hively v. Ivy Tech. Interestingly, the EEOC and DOJ take different views of the issue. Neither case addressed the issue of transgender discrimination. It was hoped that the Supreme Court would bring some clarity to these issues.

Road to Lawsuit Paved with Good Intentions 2017-12-04T12:01:51-07:00

Posted on December 4, 2017

By Chance Hill

A federal district court in Alabama recently denied summary judgment to an employer in a Title VII pregnancy discrimination claim. The employee, a pregnant nurse working at a home for intellectually disabled individuals, was removed from a work schedule after revealing her “high-risk” pregnancy to her supervisor. The employee and her supervisor butted heads when the employee explained that she could not attend medication distribution training during her days off due to doctor’s appointments concerning her high-risk pregnancy. Soon thereafter, the supervisor expressed concerns about the employee’s high-risk pregnancy and spoke of risks to the unborn baby as well as patients. After the supervisor refused to permit the employee to dispense medications, which drastically limited what shifts she could work, the employee filed suit. When the employer moved for summary judgment, the court pointed out that the employer itself provided direct evidence of pregnancy discrimination—the employer admitted that its management removed the employee from the work schedule because of the high-risk conditions of her pregnancy. That the employer “may have done this out of benevolent concern for the health and safety of the nurse and her unborn child does not excuse the discriminatory nature of its actions,” noted the court.

In other words, employers need to be wary: Even the best of intentions may result in unlawful behavior. Carter v. A & E Supported Living, Inc., No. 16-00574-N, 2017 U.S. Dist. LEXIS 195838, at *1 (S.D. Ala. Nov. 29, 2017)

Update Faragher-Ellerth Policies 2017-11-10T07:43:03-07:00

Posted on November 10, 2017

By Bill Wright

An employer recently found itself in a Catch-22 over treatment allegedly suffered by a transgender employee. The employee claims that she suffered harassment at the hands of her employer by being restricted in the use of restrooms, among several other claims. As relevant here, the employer raised the Faragher-Ellerth defense that the employee had failed to bring the alleged harassment to the employer’s attention. The court noted however that the employer only had a standard sex harassment policy and it did not explicitly apply to transgender issues. Because the cases the employer had cited in support of its defense required a specific policy calling for reports of harassment, the court denied the employer’s motion for summary judgment on its defense.

Although we have been focused on the debate concerning whether discrimination based on a person’s transgender status is sex discrimination, it may be time to review our workplace policies to be sure that any complaint of harassment is reported in a timely manner to Human Resources. And if your current policy prohibits “sexual” harassment without also prohibiting all other forms of unlawful harassment, then you REALLY need a policy overhaul. Tudor v. SE Okla. State Univ., No. 5:15-cv-00324-C (W.D. OK October 26, 2017).

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