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

Posted on November 11, 2019

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).

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

Posted on September 25, 2018

By Joe Hunt

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).

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.

Second Circuit Rules Title VII Protects Sexual Orientation 2018-02-27T14:46:09-07:00

Posted on February 27, 2018

By Bill Wright

The Second Circuit joined the Seventh Circuit and the EEOC in ruling that Title VII protects individuals from discrimination based on sexual orientation. Zarda v. Altitude Express, Inc., No. 15-3775 (2nd Cir. February 26, 2018). The Second Circuit agreed with the Seventh that the law evolves. The court ruled that, even if the authors of Title VII never intended to protect people from discrimination based on sexual orientation, (a) the text of the statute says that employers may not discriminate “because of sex” and (b) discrimination on the basis of sexual orientation is, necessarily, logically, and as a result of “operationalizing” definitions, discrimination because of sex. The court relied on the EEOC’s 3 bases for its position – sexual orientation is defined by one’s sex, sexual orientation discrimination is sex stereotyping, and sexual orientation discrimination is discrimination based on a person’s association with others of the same sex.

The court’s opinion is laced with judicial views concerning the nature of law, the meanings of statutory terms, and the logic of relationships. Consequently, the issue seems headed for the Supreme Court, where we can expect a re-chopping of all its conclusions. In any case, the court took no position on whether statutory exceptions in Title VII or the Religious Freedom Restoration Act might immunize religious employers. So, we will see plenty more philosophical debate about sex in the lower courts too.

Spell Out Interview Results 2017-05-12T10:53:06-06:00

Posted on May 12, 2017

By Bill Wright

An employer in Mississippi will face trial on a claim of race discrimination because it has not explained the interview scores two candidates received. In Calvin v. MS Dept. Rehab. Servs., Civil No. 3:15-CV-827-HTW-LRA (S.D. Miss. May 4, 2017), the plaintiff claimed he was denied a promotion because of his race. He claimed he had more relevant experience than the Caucasian candidate; the employer asserted that the other candidate had scored better in the interviews and that the plaintiff could not prove otherwise. On the employer’s motion for summary judgment, the court ruled that the employer had not articulated a non-discriminatory reason for the employment action, because the employer had not explained the interview scores. The plaintiff also contended the questions themselves were designed to favor the other candidate, without regard for the duties of the position at stake.

The case is a warning for all employers. Having an “interview” does not cover underlying discrimination. Consider the job-relatedness of the questions and train the interviewers on scoring.

Comment While You Can 2017-02-22T15:45:59-07:00

Posted on February 22, 2017

EEOC Preparing to Adopt New Harassment Guidance

By Beth Ann Lennon

The EEOC recently issued new proposed Guidance regarding how EEOC investigators should process charges of discrimination alleging harassment. The new Guidance describes heightened requirements for employers seeking to rely on their anti-harassment policies and reporting procedures to avoid liability. Many of the EEOC’s “suggestions” illustrate the agency’s disconnect from the realities most employers face. If you have concerns about these new requirements, you may submit your comments directly to the EEOC before the Guidance is formally adopted. But act fast – the comment period closes March 21, 2017. Comments can be submitted here.

Staffing Company Has to Ask 2016-07-22T11:54:57-06:00

Posted on July 22, 2016

By Bill Wright

The Fifth Circuit Court of Appeals expanded on the EEOC’s guidance on a staffing company’s liability for its client’s discriminatory decisions. According to the court, a staffing company may be liable when a client asks the staffing company to remove a particular assigned employee, if the staffing company knew or should have known that the client’s decision was discriminatory. Nicholson v. Securitas Security Servs. USA, Inc., No. 15-10582 (5th Cir. July 18, 2016). In this case, the client asked the staffing company to remove an 83-year-old receptionist, saying that the receptionist could not perform new technology-related tasks. There was no evidence that the staffing company knew the client’s decision was based on discriminatory animus, but there was evidence the staffing company should have known: the staffing company did not verify the client’s story. The staffing company simply took the client’s word for it that the receptionist couldn’t do the job, even though the staffing company “generally” asked for the employee’s side of the story and “normally” addressed job performance with counseling rather than immediate termination.

We’re now used to the idea that a staffing company and its client will be joint employers for some purposes. Expect to discuss the reasons for joint employment decisions.

A Non-Material Threat 2015-12-15T09:00:17-07:00

Posted on December 15, 2015

By Joe Hunt

In Brandon v. Sage Corp., No. 14-51320 (5th Cir. Dec. 10, 2015), the Fifth Circuit addressed whether a threat to cut a supervisor’s pay in half was, by itself, a “materially adverse employment action.” The plaintiff was a manager for a truck driving school in San Antonio. She reported up, through her manager, to the company’s president. When a part-owner of the company discovered that the plaintiff had hired a transgender woman, the part-owner threatened to cut the plaintiff’s salary in half. The plaintiff resigned and sued for retaliation under Title VII. The court noted that a realistic threat to drastically reduce an employee’s pay might deter a reasonable person from supporting a claim of discrimination and, therefore, might support a retaliation claim. But, here, the plaintiff knew company policy, knew the chain of command, and knew the part-owner had no final decision-making authority. She quit before the company president could weigh in to disavow the threat. At the very least, said the court, a reasonable employee would have followed the company’s grievance process or waited to receive confirmation of whether the threat was official.

Even when someone in a position of authority shoots his or her mouth off, there might be time to walk a threat back. Give it a try.