A recent case reminds us to take all claims of sexual harassment seriously, including when the two employees are of the same sex. In Cherry v. Shaw Coastal, the Fifth Circuit Court of Appeals recently found an employer liable for failing to respond following allegations that a male supervisor was sexually harassing a male employee.Continue reading this entry
Category Archives: Discrimination, Retaliation and Harassment
In a Landmark Decision, the Supreme Court Exempts “Churches” From Most Employment Discrimination Statutes Affecting “Ministers”
Posted in Discrimination, Retaliation and HarassmentThe First Amendment of the United States Constitution (U.S. Const. amend. I) provides, in part, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This short sentence containing what is known as the Establishment Clause and the Free Exercise Clause, has been the source of a large body of law and scholarly commentary.Continue reading this entry
How Employers Faced With Potential False Claims Act Liability May Avoid Liability for Whistleblower Retaliation
Posted in Discrimination, Retaliation and HarassmentUnder the False Claims Act, a private whistleblower can bring suit on behalf of the federal government to recover funds fraudulently obtained from the government. See 31 U.S.C. § 3730. It is not uncommon for the whistleblower, who can keep up to 30 percent of the government’s total recovery, to be an employee of the defendant. Often, depending on how far along an investigation or lawsuit is, because lawsuits brought under the False Claims Act are initially filed under seal, the company may not even know the identity of the whistleblower for some time. Recently, a wide spectrum of companies — from manufacturing and construction to health care and banking have found themselves grappling with these issues, as they are confronted for the first time with False Claims Act investigations or lawsuits, in many instances instigated by their own employees.
By George, It Must Be Formal — Informal Complaints May Not Be Protected by ERISA’s Anti-Retaliation Provision
Posted in Discrimination, Retaliation and HarassmentSection 510 of the Employee Retirement Income Security Act of 1974 (ERISA) protects an employee who “has given information or has testified or is about to testify in any inquiry or proceeding relating to” ERISA from retaliation by that person’s employer. 29 U.S.C. § 1140. It is clear that, if an employee testifies regarding an alleged ERISA violation in a case pending in court or talks to the Department of Labor (DOL) as part of an active DOL investigation of potential ERISA violations, this section prohibits the employer from discharging, fining, suspending, expelling or otherwise discriminating against the employee. But what if an employee informally volunteers information to the DOL when no litigation or investigation is pending and no formal complaint is filed?
Court Holds That Employer Meeting to Discuss Ideas for Retirement Packages Does Not Constitute Evidence of Discrimination
Posted in Discrimination, Retaliation and HarassmentWhen an employer meets with an employee to solicit opinions from retirement-age employees as to ideas for retirement packages the meeting itself does not constitute evidence of age discrimination, a court recently held. In McWhorter v. Maynard, Inc. (W.D. Ark. July 19, 2011), the former employee alleged violations of the Age Discrimination in Employment Act (ADEA) and ADA against the defendant employer. As part of her ADEA claim, the employee alleged that her employer held a meeting with individuals over the age of 49 to discuss retirement options at the company. The company held a second meeting during which retirement-age employees shared ideas about possible retirement plan options.
A Negative Job Reference Can Lead to a Claim of Retaliation
Posted in Discrimination, Retaliation and HarassmentProviding negative job references to prospective employers about one of your former employees could constitute unlawful retaliation in violation of the Americans With Disabilities Act (ADA), the Family Medical Leave Act (FMLA) and similar anti-discrimination laws.
Anti-Gay Harassment Claims Need to Be Investigated
Posted in Discrimination, Retaliation and HarassmentThe employee in EEOC v. Cromer Food Services, Inc., brought a harassment claim under Title VII (http://tinyurl.com/yl7jjbb), complaining his employer failed to protect him from regular anti-gay harassment by two individuals who were not co-workers. In adopting a negligence standard for considering whether an employer may be liable for the activities of non-employees in a claim for sexual harassment, the federal Court held that the employer would be liable if it knew or should have known that the employee was the subject of anti-gay harassment and failed to take appropriate actions to stop it. From the facts available to the appeals Court, it was reasonable to conclude that the employer had such knowledge, didn’t follow its own harassment complaint procedure, and ultimately failed to protect the employee from lewd, unwanted, and inappropriate anti-gay harassment.
Safe Harbors Emerge for Employers Under New GINA Regulations
Posted in Discrimination, Retaliation and HarassmentThe Genetic Information Non-Discrimination Act of 2008 (GINA) was signed into law by President George W. Bush in May 2008 and became effective in November 2009. Title II of GINA prohibits employers with 15 or more employees, unions, employment agencies, and joint apprenticeship programs from discriminating against an individual based on his or her “genetic information.” Genetic information under GINA includes an individual’s family medical history, an individual’s participation in genetic testing, counseling, or education, and (perhaps most obviously) the results of genetic testing of an employee or his or her family members.
Reasonable Accommodations for Sabbath Observances: What Does the Law Require?
Posted in Discrimination, Retaliation and HarassmentUnder federal law, employers must make reasonable accommodations for their employees’ sincerely held religious beliefs, unless such accommodations would cause an undue hardship on the employer. On April 14, 2011, a federal court in Minnesota allowed the religious discrimination claim of a Seventh Day Adventist who lost his truck-driving job when his employer refused to accommodate his Sabbath observances proceed to trial.
Avoiding Liability for Retaliation
Posted in Discrimination, Retaliation and HarassmentRetaliation claims are proliferating and are unlikely to subside anytime soon. The EEOC reported that in its last fiscal year, retaliation claims were the most common type of claim asserted in new charges. Some 36 percent of the nearly 100,000 charges filed with the EEOC in its FY 2010 asserted a claim of retaliation. During its current term, the U.S. Supreme Court has continued a trend of issuing rulings that expand anti-retaliation rights of individuals — thereby expanding the risks to and demands on employers. For example, in the March 28, 2011 edition of Legal News: Employment Law Update, we reported on the Supreme Court’s ruling in Kasten v. Saint-Goben Performance Plastics Corp., in which the Court ruled that an employee was protected from retaliation even though he had raised his wage complaint only internally and had not filed a claim with any agency or court. In the January 31, 2011 edition of Legal News: Employment
Law Update, we reported on the case of Thompson v. North American Stainless LP, in which the Court ruled that an employee who alleged he was fired in retaliation for his fiancée’s filing of a discrimination complaint against the same employer.
Skepticism Pervades Dukes v. Wal-Mart Supreme Court Oral Argument
Posted in Discrimination, Retaliation and HarassmentOn March 29, 2011, the Supreme Court heard oral argument in Dukes, et al v. Wal-Mart, a closely watched case that promises to provide guidance in the employment class action arena. The Court will decide whether a federal court in California properly certified a national class of more than 1.5 million current and former female employees alleging the pay and promotion practices of the retail giant discriminated against women.
Job Applicant Not Hired by Private Employer Because of Bankruptcy Has No Discrimination Claim Under Bankruptcy Code
Posted in Discrimination, Retaliation and HarassmentJob applicants’ claims for discrimination under the federal bankruptcy code are not recognized against private employers that deny employment because the applicants filed for bankruptcy. Two recent federal appeals courts have upheld this rule — Rea v. Federated Investors (3d Cir. Dec, 15, 2010) and Burnett v. Stewart Title, Inc. (In re Burnett) (5th Cir. Mar. 4, 2011). In both cases, the private employer initially selected the applicant for employment and later either refused to hire or outright rescinded the offer to the applicant after learning of the applicant’s bankruptcy filing.
Another Way Retaliation Claims Just Got Easier to Bring
Posted in Discrimination, Retaliation and HarassmentSince 1997, retaliation claims with the EEOC have almost doubled, and recent case law provides yet another way for employees (and their lawyers) to make a retaliation claim.
A recent case, McGhee v. Healthcare Services Group, et al., involved a married couple who each worked for separate companies that had a business relationship. The wife worked for a nursing facility, while the husband was employed as an account manager for the vendor hired to ensure the cleanliness of the same nursing facility. In his position, the husband had some responsibility for managing the contract with the nursing facility.
Employer Still Liable If Discriminatory Action of Supervisor Has Only “Some Direct Relation” to Termination
Posted in Discrimination, Retaliation and HarassmentA decision of the United States Supreme Court this week makes even more clear that to avoid liability under some federal employment discrimination laws, an employer’s human resources department should complete a thorough, independent review of the facts before making a termination or other adverse employment decision. If that employment decision is influenced in some direct way by a biased supervisor who has acted to cause the negative employment action, the employer may be liable.
Employer Not Liable for Conduct of Equal-Opportunity Harasser
Posted in Discrimination, Retaliation and HarassmentA federal court in Kentucky recently ruled that an employer was not liable for a former manager’s abusive conduct that was directed equally at men and women. In Street et al v. U.S. Corrugated, Inc., (January 25, 2011), five employees (two men and three women) sued the company alleging that they were terminated due to their gender and in retaliation for their complaints of gender-based harassment in violation of Title VII.
Fired Fiancé Fuels Retaliation Claim
Posted in Discrimination, Retaliation and HarassmentIn an 8-0 decision last week, the U.S. Supreme Court expanded the law on unlawful retaliation when it handed down its decision in Thompson v. North American Stainless, LP.
The facts of this case were straightforward. Eric Thompson and his fiancée, Miriam Regalado, were employees of North American Stainless (NAS). In February 2003, the EEOC notified NAS that Ms. Regalado had filed a charge alleging sex discrimination. Three weeks later, NAS fired her fiancé, Mr. Thompson, who then filed his own charge with the EEOC claiming that that NAS had fired him in retaliation for Ms. Regalado’s filing with the EEOC. The trial court dismissed Mr. Thompson’s suit.
Close Timing Not Enough to Support Discrimination Claim
Posted in Discrimination, Retaliation and HarassmentEmployers who propose to terminate an employee are often rightly concerned that the proximity of another event or protected activity may “insulate” the target employee from termination. However, as a recent federal court decision demonstrates, an employee’s claim will not always proceed merely because two events were close in time.
Can Accusing a Former Employee of Stealing Trade Secrets Be Unlawful Retaliation?
Posted in Discrimination, Retaliation and Harassment; Trade Secrets Protection/NoncompetesEmployers can be subject to lawsuits for actions they take after an employee leaves their employment. Luzenac American fired Sanford Lee Hertz in January 1998. Shortly after his termination, Mr. Hertz sued Luzenac for religious discrimination and retaliation in connection with the firing. The case went to trial and a jury returned a verdict in favor of Mr. Hertz.
While the case was on appeal, Mr. Hertz entered into a consulting agreement with IMI Fabi to help it manufacture and market a product to compete with a Luzenac product. Once Luzenac got the news, it sent a letter to Mr. Hertz demanding he stop misappropriating its trade secrets. Luzenac’s counsel sent a cease-and-desist letter to Mr. Hertz’s counsel, copying IMI Fabi, alleging that Mr. Hertz was illegally using Luzenac’s proprietary information to compete against it.
The Supreme Court Hears Arguments on Third-Party Retaliation Claim
Posted in Discrimination, Retaliation and HarassmentWhat if an employee claims to be the victim of retaliation not because he or she filed a charge of discrimination or participated in an investigation, but because of his/her “close association” with another employee who did? Would such an employee have a claim under Title VII? This was the question debated in the Supreme Court of the United States earlier this month.
Workplace Harassment — A Reminder
Posted in Discrimination, Retaliation and HarassmentGiven the widespread availability of electronic means of communication in many workplaces — which has made it easier for employees to transmit communications that others might find unwelcome and offensive — employers must be ever aware of harassment issues. As a result, employers should familiarize themselves with some basic concepts that apply when confronted with a claim of workplace harassment. While each harassment claim warrants its own specific investigation and determination based on all the particulars involved, the following guidelines provide a good framework for dealing with these situations.
Mitigating the Prospect of and Appropriately Responding to Workplace Violence: Part II
Posted in Discrimination, Retaliation and HarassmentElements of Effective Policies, Practices, and Procedures Related to Workplace Violence
In continuation of Part I of our Labor and Employment Law Weekly Update (Week of November 8, 2010) regarding workplace violence, employers who do not have comprehensive and effective employment policies, practices, and procedures pertaining to workplace violence should promulgate and implement them at the earliest opportunity. The policies should, at a minimum, express zero tolerance for workplace violence of any kind, delineate what constitutes and the consequences of prohibited behavior, specify that employees are obligated to report actual, threatened, or perceived episodes of prohibited behavior without fear of retaliation of any kind, and provide a mechanism for reporting actual, threatened, or perceived episodes of prohibited behavior either anonymously or by name. The policy pertaining to zero tolerance for workplace violence should be disseminated to all affected employees and acknowledged in writing by employees.
EEOC Reports Record Number of Charges Filed
Posted in Discrimination, Retaliation and HarassmentOn November 15, 2010, the EEOC published its Performance and Accountability Report for Fiscal Year 2010 (ending September 30, 2010). The Report confirmed what many suspected — namely, that there were a huge number of charges filed with the EEOC in its FY 2010. In fact, nearly 100,000 charges were filed with the EEOC in 2010 — the most ever in its 45-year history and a 7.2-percent increase over the number of charges filed in 2009. The EEOC attributed this record-breaking year to its expanded statutory authorities related to the ADA Amendment Act, the Genetic Information Nondiscrimination Act, and the Lilly Ledbetter Fair Pay Act. The EEOC also claimed that the rise in charge filings is attributable to its easier filing procedures and better customer service, including by telephone and e-mail. Many predicted this surge in filings during the slow economy in which employers have had to make hard termination and layoff decisions, often more quickly than usual, and discharged employees faced difficulty finding alternative employment. Without ready options for alternative employment, individuals seem more likely to challenge actions by former employers by filing charges.
Red Alert to Avoid Age Discrimination Lawsuits!
Posted in Discrimination, Retaliation and HarassmentDon’t cross the line when suggesting retirement or questioning employees about their retirement plans.
Employers often suggest ideas to or question an employee about his or her retirement plans to actually save the employee from being involuntary terminated. For example, a common scenario may be a long-term employee over the age of 40 who is facing involuntary termination because he or she is not performing up to the company’s expectations or is employed in a position that has been targeted for elimination as part of a reduction-in-force (RIF). Involuntarily terminating an employee over the age of 40 can lead to age discrimination claims, so employers may attempt to convince an employee to voluntarily retire as a way to avoid an age discrimination lawsuit. The bottom line, however, is that employers may end up defending an age discrimination lawsuit as a result of repeatedly suggesting or questioning an employee about his or her retirement plans, as a recent federal court case instructs.
Cutting the Risks for and Appropriately Responding to Workplace Violence: Part I
Posted in Discrimination, Retaliation and HarassmentEmployers generally recognize they have a legal obligation to provide their employees with a safe environment in which to work. For many employers, this simply means minimizing employees’ exposure to serious risk of injury or death due to work-related processes, machinery, and other operational causes. However, the legal obligation to provide employees with a safe work environment also includes minimizing the potential that they will be the victims of workplace violence. This goal can be achieved by preparing and using effective policies, practices, and procedures.
The Risk of Workplace Violence Is Real
Twenty percent of all violent crime in the United States occurs in the workplace. An estimated 1.7 million employees are injured each year because of workplace assaults. A recent U.S. Department of Labor survey of employers with 1,000 or more workers disclosed that more than 50 percent reported at least one incident of workplace violence during the preceding 12-month period. One out of three employees feels he or she has been bullied on the job. In other words, no employer is immune from the prospect of workplace violence.