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.

STATE SENATE SUES EEOC? 2018-10-11T16:56:48-06:00

Posted on October 11, 2018

By John Doran

In a classic “man bites dog” story, the Florida Senate filed a federal lawsuit against the EEOC yesterday. The suit seeks to kill an EEOC charge and administrative hearing alleging that a senator sexually harassed a legislative assistant. While the actual dispute involves only a single senator, the entire Florida Senate was named as the respondent. The Senate’s lawsuit claims that the EEOC is stonewalling by refusing to turn over roughly 1,000 pages of evidence and a sworn statement from the alleged victim. Instead, the EEOC has provided only a one-page charge that references, but does not attach any evidence. This, the Senate claims, violates due process. The Senate also claims that it is immune from the charge and hearing process due to sovereign immunity.

Frankly, we are shocked, flabbergasted, and gobsmacked by this alleged EEOC stonewalling. Never before has an employer ever been forced to defend itself to the EEOC with no more information than that provided in a one-page charge. And never before has an employer been denied much-needed information to defend itself by the EEOC. Oh, wait, yes, yes that happens pretty much every single time the EEOC investigates a charge. So good luck with that argument Florida Senate.

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.

Groundbreaking Discrimination Lawsuits 2016-03-02T10:35:00-07:00

Posted on March 2, 2016

By Joe Hunt

The EEOC filed two lawsuits yesterday alleging – for the first time – that discrimination on the basis of sexual orientation violates Title VII. As you know, sexual orientation is not expressly protected under Title VII, so these suits mark the EEOC’s expansive interpretation of its statutory authority.

One EEOC complaint, filed in Pennsylvania federal court, alleges discrimination against a male employee because of his sexual orientation, and the second complaint, filed in Maryland federal court, alleges discrimination against a female employee because of her sexual orientation. Each complaint alleges the relevant employer subjected the employee to homophobic epithets and other offensive remarks about the employee’s sexual orientation.

The EEOC’s underlying rationale for these lawsuits is that an employer’s harassing conduct of an employee based on his or her sexual orientation is inherently discrimination based on sex. The EEOC argues that the employer’s unlawful conduct is motivated by an employee’s sex by virtue of his or her non-compliance with sex stereotypes or heterosexually defined gender norms. The Pennsylvania complaint can be found here and the Maryland complaint here.

EEOC Benchslaps Just Keep Coming 2014-08-28T13:46:48-06:00

Posted on August 28, 2014

By John Alan Doran

Yesterday we reported on an entertaining “man bites dog” case initiated by a former EEOC Phoenix Regional Office investigator who sued the EEOC for race discrimination, retaliation, and violation of her civil rights. “Another Approaching Benchslap for EEOC.” Well, today we report on her co-worker, Quarracy Smith, who is a current EEOC investigator, also in the Phoenix Regional Office, and also suing the EEOC for race discrimination and retaliation, as well as racial harassment. Smith v. Barrien et. al., No. 2:14-cv-01616-NVW (D. Az., filed July 17, 2014). Consider this an “another man bites the same dog” story. Mr. Smith claims that he has been working as an EEOC investigator since June 2009. He alleges that from June 2010 forward, he has been subjected to race discrimination and harassment in several respects, which include being held to case dismissal quotas, cell phone rules, promotion standards, disciplinary actions, and much more solely on account of his race. He even goes so far as to allege that the Regional Director stated that he could not do much for the Black employees in the office because he was afraid it would be interpreted as favoritism. Mr. Smith also alleges that the EEOC failed to adequately investigate his claims of discrimination and hostile working environment, and requests all sorts of legal and equitable remedies including punitive damages.

In light of the recent VA debacle in Phoenix, one has to wonder what in the world the Feds are doing to keep a watchful eye over their teams in Arizona. More pointedly, one must wonder how a federal agency empowered to eradicate discrimination and retaliation can possibly police our employers when it appears wholly incapable of policing itself. More to come on this case and the case we reported yesterday…..

Report of “Horrific” Conduct, without More, Was Unreasonable Failure to Complain 2013-06-03T20:28:29-06:00

Posted on June 3, 2013

By Bill Wright

In the absence of a tangible employment action, employers may raise a Faragher-Ellerth defense to a claim of sex harassment. In a recent case, the employer obtained summary judgment on the defense because the alleged victim of harassment refused to tell the employer’s investigators any details about the harassment. The victim told Human Resources that her supervisor had done something “horrific” and when asked directly whether the harassment included a sexual advance, she nodded. Other than that, she refused to provide any details. The employer investigated anyway, interviewing the alleged harasser and other possible witnesses, without discovering any facts about the alleged harassment.

When the lawsuit came, the court granted the employer summary judgment because of the plaintiff’s unreasonable failure to use the employer’s complaint procedure. Stephanie Crockett v. Mission Hospital, Inc., No. 12-1910, (4th Cir. May 30, 2013). Even the best investigators need something more to go on than “horrific”, and apparently a wink and a nod isn’t that “something more”, at least in the Fourth Circuit Court of Appeals.

$3.5M in Punitive Damages Vacated 2013-05-21T21:42:42-06:00

Posted on May 21, 2013

An employer avoided $3.5M in punitive damages by proving it took sufficient steps to stop and prevent harassment. Otto May Jr. v. Chrysler Group, LLC, Nos. 11-3000 & 11-3109 (7th Cir. May 14, 2013). In this case, the plaintiff was subjected to dozens of threats and derogatory graffiti messages, from 2002 until 2005, based on his race, religion, and national origin. He complained to his employer about the co-worker harassment. He specifically asked the employer to install cameras near his work station; the employer did not. He provided a list of nineteen employees that he suspected of involvement in the harassment, but the employer never formally interviewed the employees. Still, the employer did take multiple steps to ameliorate the harassment, including hiring a forensic document investigator to help identify the source of the harassment, and the harassing conduct did eventually cease. The court reasoned that, “while far from perfect, [the employer’s] actions did have a positive effect on the harassment” and held there was no evidence in the record to support the jury’s finding that the employer acted with the requisite “malice” or “reckless indifference” to uphold an award for punitive damages.

This employer’s “far from perfect” response to a harassment claim may have been enough to avoid punitive damages, but it takes something close to perfection to avoid a verdict in the first place.

Sexual Assault Was Not Sexual Harassment 2013-04-15T15:35:20-06:00

Posted on April 15, 2013

By Andy Volin

A security guard and her husband thought she had claims for harassment and retaliation after she was sexually assaulted (unwanted kissing and groping) at work by an employee of a customer, but the First Circuit recently upheld the dismissal of her claims on summary judgment. The harassment claim failed because the employer had a strong anti-harassment policy in place, and the alleged victim never reported that the customer’s employee was sexually harassing her before the assault occurred. Instead, she had only complained about a couple of phone calls that bothered her. That was not enough to put her employer on notice that the customer’s employee was sexually harassing her. After she reported the assault, the customer’s employee was immediately moved to a different city, ending any potential for further harassment.

Her retaliation claim failed as well. She claimed her employer reduced her hours after she reported the assault, but work records showed that wasn’t the case. She also complained that a person conducting sexual harassment training singled her out for humiliating questions at a training session, but that person did not know about her sexual assault, and so the questions could not be considered retaliation for reporting it. Medina-Rivera v. MVM, Inc., No. 11-2419 (1st Cir. Apr. 10, 2013).

The case is a good reminder that employers must have robust anti-harassment policies in place, and those policies must address harassment both by co-workers and by outsiders who have access to employees as a result of their jobs.

Firing Supervisor for Threats Is Not Retaliatory 2012-12-21T18:25:41-07:00

Posted on December 21, 2012

By Bill Wright

There are limits to self-help, even if you believe you have been subjected to harassment. In Gaff v. St. Mary’s Regional Med. Center, No. 12-6064 (10^th Cir. December 19, 2012) (unpublished), the employer discharged a supervisor for her reaction to an employee’s joke. The joke was in poor taste: the employee “joked” that the supervisor’s husband was leaving her for another woman. In times past, the same employee had told her: “All you need is a good f[—].” But the supervisor’s response to the “joke” this day was to say that she owned a gun, knew how to use it, and that the employee’s comment was “the kind of joke that can get someone shot.” The employer fired the supervisor and she sued. The Court ruled that – with just these two comments and other innocuous conversations – the supervisor cannot have had a reasonable belief that the employee was harassing her. More to the point, the only evidence in the case showed that the supervisor’s threat was the real and only reason for the discharge decision.

These days, everyone has good reason to be leery of threats in the workplace. The courts seem to support employers who take those threats seriously.

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