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.

EEOC Right to Sue Fiasco Ends in Whimper, Not a Bang 2019-06-12T14:35:37-06:00

Posted on June 12, 2019

By John Alan Doran

The EEOC settled a lawsuit challenging its issuance of some 54 “Right to Sue” notices involving BNSF Railway. Law 360 reports that the case settled when the EEOC agreed to set aside the Right to Sue notices.

BNSF sued the EEOC, claiming that the EEOC violated the Administrative Procedures Act (“APA”) when it issued the Right to Sue notices. BNSF asserted that the underlying charge that gave rise to the notices was flawed for a variety of reasons, not the least of which were that the charge did not specify the date of the alleged discrimination, the EEOC Commissioner approved the charge only after he officially left the EEOC, and the EEOC unlawfully disseminated the charge to potential plaintiffs when it was supposed to be confidential. Last year the trial court found that the notices constituted final agency actions that are subject to challenge under the APA.

This is yet another example of the EEOC’s overreach, which led to unnecessary and costly litigation. More importantly, the case may provide a roadmap for employers to challenge the bona fides of Right to Sue notices, which the EEOC has historically issued like candy out of a PEZ dispenser. And, while the EEOC regularly issues self-congratulatory press releases over miniscule settlements, it is notoriously silent on this settlement, which should come as no surprise to any of us.

BNSF Railway Co. v. EEOC, 4:18-cv-0031 (N.D. Tex. 2019).

Dear Santa 2018-12-22T09:00:46-07:00

Posted on December 22, 2018

John Alan Doran

Dear Santa,

We all got together and put together our wish-list for your visit. We realize it’s been a fascinating year on the Labor & Employment front. And we don’t want to seem greedy (and end up on the naughty list) in light of all the recent developments in Labor & Employment law that have started to level the playing field for employers. But much still needs to be accomplished for employers in order to encourage job creation and reinvestment in our workforce. Stemming the tide of frivolous litigation and abuse of agency authority would go a long, long way toward that end. And so, dear Santa, here are just a few things we would like to see in or around our tree next week:

A cooperative Congress that can actually get things done. Employers and employees, alike, suffer from the uncertainty of our current, volatile political climate.
We need more judges. Lots more judges. Federal judicial vacancies are delaying justice for employers and employees at a mind-boggling pace, and the highly politicized process of appointing new judges is a mess.
A national, unified approach to paid leave. For multi-state employers, navigating the hopelessly contradictory state laws governing paid leave is daunting, if not impossible.
An end to certain states “under-turning” the Supreme Court’s arbitration jurisprudence at every opportunity. While some states refuse to believe this, there is a controlling federal policy favoring arbitration agreements even in employment, it’s the law of the land.
Marijuana-induced clarity. As more and more states roll out pro-marijuana laws, employers are increasingly caught between a rock and a hard place given the conflicting state and federal laws governing marijuana use.
An end to EEOC overreach and litigation abuse. Courts have repeatedly called out the EEOC for its over-the-top bullying and litigation abuse. It’s time for something to be done legislatively to curb the agency’s abusive conduct.
Simplified, unified, and practical rules determining the existence or non-existence of independent contractor relationships. The current hodge-podge of separate and distinct contractor tests throughout the states and conflicting tests within the federal government make it nearly impossible to enter into contractor agreements with any assurance that there will not be expensive litigation to follow.
Conclusive guidance on LGBT and related protected categories. Legislative clarity in this arena is long overdue.
A simplified, and realistic approach to FLSA white-collar exemptions, and a less pedantic enforcement strategy from the DOL.
A Senate vote on the countless agency vacancies that remain open but ready to be filled. Positions such as the Assistant Secretary of Labor—OSHA, and many more, could be filled in an instant, but won’t be due to gridlock.

And, for a stocking stuffer, how about amending labor and employment laws to make patently clear that the party who prevails in a lawsuit or agency proceeding shall recover costs and attorneys’ fees. File a bogus unfair labor practice charge, and you pay the price. Initiate a baseless FLSA collective action, and you pay the price. The playing field has been turned on its side in this respect, as employers are forced to settle frivolous or specious claims simply to avoid the costs of litigation. When both sides face the specter of litigation expenses, there will be less abuse and more efficient processing of legitimate claims.

Terminating Employees for “Bad Faith” Harassment Complaints Fraught With Peril 2018-08-14T09:46:08-06:00

Posted on August 14, 2018

By: Chance Hill

In EEOC v. HP Pelzer Auto. Sys., the U.S. District Court denied the employer’s motion for summary judgment on a retaliation claim. The employer received a complaint that its HR manager had made two offensive, sex-related, comments. The employer’s investigation turned up three witnesses who denied the manager had made the comments. Concluding that the complaint was false, the employer discharged the complainant for making a complaint that was not in “good faith.”

The EEOC contends that the employer unlawfully retaliated against the complainant because of her opposition to its discriminatory practices. The employer admits that it terminated the employee because of her complaint, but argues that she forfeited protection by bringing a false complaint. The EEOC argued that, even if the employer had a good faith belief that the complaint was unfounded, the employer still has to show that the complainant did not also act in reasonable good faith, as used in Title VII.

The Court denied summary judgment. In resolving an employer’s motion for summary judgment, the court assumes the employee’s version of the facts is true; consequently, the court assumed the employee had a basis for her complaint. The employer needs proof the complainant acted in such bad faith that she forfeited protection from retaliation. The Court also underscored that it could not ascertain the reasonableness of the employer’s belief without making credibility determinations—a determination appropriate for the jury, but not the Court.

This case – brought by the EEOC – highlights the risk of employer policies that threaten termination for bad faith internal complaints. It is one thing to disbelieve a complaining employee, based on reasonable evidence. It is another thing to determine for yourself that the complainant does not deserve protection from retaliation. The second judgment is one the EEOC might dispute.

EEOC v. HP Pelzer Auto. Sys, Inc., No. 1:17-cv-00031 (E.D. Tenn. Aug. 3, 2018) (order denying summary judgment).

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.

EEOC Ain’t Over ‘Til It’s…Forever 2017-09-13T11:06:45-06:00

Posted on September 13, 2017

By John Alan Doran

The Seventh Circuit recently condoned an EEOC practice that dramatically inhibits the private settlement of employment discrimination lawsuits.

Two Union Pacific employees filed an EEOC charge. The EEOC provided a Notice of Right-to-Sue, and the employees filed a federal lawsuit alleging harassment, discrimination, and retaliation. The employees’ lawsuit was later thrown out by the judge for lack of evidence. However, while the lawsuit was pending, the EEOC issued a separate administrative subpoena to Union Pacific, which it sought to enforce for the matters being litigated in the employees’ lawsuit in federal court. Union Pacific objected, arguing that the EEOC’s enforcement authority was terminated either when it issued the Notice of Right-To-Sue, or when judgement was entered against the two claimants in their federal lawsuit.

The Seventh Circuit rejected both of Union Pacific’s arguments. The court concluded that nothing in Title VII prevents the EEOC from investigating a charge after issuing a Notice of Right-To-Sue or even after a civil lawsuit on the same subject matter has been disposed of.

The message to employers: Even if you WIN a case in federal court against a charging party, you may still be whipsawed by the EEOC. This is also true with respect to settling an EEOC charge with an individual. This creates a perverse disincentive for employers to settle charges and lawsuits, since such settlements do not buy absolute peace of mind.

EEOC v. Union Pacific RR Co. https://dlbjbjzgnk95t.cloudfront.net/0954000/954665/rssexec.pdf

UPS Delivers Cautionary Tale 2017-08-08T14:56:42-06:00

Posted on August 8, 2017

By John Doran

Maximum leave policies are ubiquitous. These policies typically state that an employee who does not/cannot return from leave within a specified period (e.g. 12 months) will be discharged. Last year the EEOC issued “guidance” reminding employers that it views maximum leave policies as a violation of the ADA. Last week the EEOC settled a long-running case with UPS involving maximum leave policies. The EEOC’s lawsuit, filed in 2009, claimed that UPS’s maximum leave policy discriminated against disabled workers because it left no room for accommodation upon expiration of twelve months leave. Under the settlement, UPS agreed to pay $1.7 million to a class of workers and to create new mechanisms within the entire organization to ensure a prior legal review of any termination of an employee who has reached the end of a medical leave. Whether the EEOC is right or wrong on maximum leave policies under the ADA, it clearly litigates to enforce its position. Employers are wise to look at their leave policies to ensure they do not run afoul of the EEOC’s interpretation of the ADA.

Grudges Are Forever 2017-07-14T15:34:29-06:00

Posted on July 14, 2017

By Bill Wright

Even a gap of five years between protected conduct and an adverse action isn’t enough to show the two are not connected. In Baines v. Walgreen Co., No. 16-3335 (7^th Cir. July 12, 2017), the plaintiff had worked for the employer in 2009 and, back then, had filed several EEOC charges. In 2014, she applied for work again, and her application was rejected. She claimed retaliation, and the employer argued that 5 years was far too long for any connection to exist between filing the charges and the decision not to rehire her. The problem with this argument was that the plaintiff was not relying on close timing to establish a causal connection. Instead, her cousin had taken the job with the employer, and the cousin reported her supervisor’s statement the plaintiff’s application had been blocked by a higher level manager. The manager had been personally involved in the employer’s defense of the old EEOC charges.

The employer will still get to present its reasons for the decision not to hire the plaintiff, but will have to do that in front of a jury. Managers involved with former employees’ protected activity might have conflicts dealing with new applications from the same employee. Consider how to identify those conflicts when they occur in your hiring process.

Don’t Quarrel Over Scripture 2017-06-13T10:30:04-06:00

Posted on June 13, 2017

By Bill Wright

The Fourth Circuit Court of Appeals recently upheld a jury verdict in favor of the EEOC in a Title VII religious discrimination claim. At issue was the use of a biometric scanner as a time clock. EEOC v. Consol Energy, Inc. et al., No. 16-1406 (4^th Cir. June 12, 2017) The employee objected that allowing the company to scan his hand – either hand – would result in his receiving the Mark of the Beast. (See Revelation 13:16-17.) The company provided the employee with a prepared interpretation of the Book of Revelation from the manufacturer of the biometric device. The manufacturer explained (1) the device left no mark, or “Mark,” and (2) employees could safely use their left hands as the Beast would Mark only a person’s right hand or forehead. The company therefore insisted that the employee scan his left hand. Oh, of course, employees with injured hands could just input their employee number, but the company did not offer – in an internal email, actually refused – to offer this accommodation to the religious dissenter. The company threatened discipline if he did not scan one hand or the other; and the employee resigned under protest.

Apparently the scriptural disagreement and evidence related to constructive discharge were the main themes of the trial. There was no disagreement over the sincerity of the employee’s belief, only over whether he was right.

It seems elementary, but a U.S. court is not going to rule, or instruct a jury to determine, authoritative interpretations of scripture. As an employer, don’t get into a dispute of biblical proportions over a simple timekeeping accommodation. If it had been anything more than de minimis, Title VII would not have required the employer to provide the accommodation.

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