As we have previously noted, employers often wonder what to do when an employee makes a harassment complaint, but the alleged harasser is not another employee. The employer cannot simply do nothing, but it also generally does not have the ability to discipline the alleged harasser as it would in the situation where another employee is the alleged perpetrator. The extent of an employer’s duty in these kinds of situations has troubled employers and their counsel for some time because, even though the EEOC had a few suggestions on the topic, the case law was unclear. A recent ruling in Summa v. Hofstra University et al., however, may provide some clarity.Continue reading this entry
Category Archives: Discrimination, Retaliation and Harassment
Whistleblower Retaliation Claims — Are You Prepared?
Posted in Discrimination, Retaliation and HarassmentPublicity about whistleblower claims and recoveries continues to grab headlines. The recent confession by Lance Armstrong highlighted the blood doping allegations behind his seven Tour de France titles and on the whistleblower claim by his former teammate, Floyd Landis, who initially made the allegations. The U.S. Postal Service has now joined Landis’s whistleblower case under the False Claims Act, seeking to recover more than $40 million that it paid to sponsor the Armstrong racing team for years.Continue reading this entry
Are You My Supervisor?
Posted in Discrimination, Retaliation and Harassment; Human Resources/ Employer MattersLate last month, the Supreme Court considered whether and when a co-worker can be deemed a supervisor for purposes of evaluating if the employer is strictly liable for that persons harassment of another employee. As we reported in the July 9, 2012 edition of Labor & Employment Law Perspectives, the Supreme Court agreed to hear Vance v. Ball State University to address the critical question of who qualifies as a supervisor. The Justices debated the merits of upholding the clear standard applied by the 7th Circuit Appeals Court or of adopting the case-by-case standard advocated by the EEOC or a new hybrid standard suggested by Justice Kennedy. They also asked questions indicating that the Justices may believe that the facts in the case are not sufficient to decide the issue in the first place. To top it all off, Ball States counsel did not even argue in favor of the standard applied by the appellate court to rule in his clients favor. Continue reading this entry
How Long Is “Too Short?”
Posted in Discrimination, Retaliation and HarassmentEmployers know retaliation cases continue to rise, and many appropriately fear being the subject of one. Employers also know that it is difficult, if not impossible, to know exactly when retaliation will occur. So what to do? Continue reading this entry
To Pump or Not to Pump — Nursing Mothers and Breastfeeding Protection Laws
Posted in Discrimination, Retaliation and Harassment; Human Resources/ Employer MattersThere does not seem to be a manner of enforcing the express breast milk provisions of the Patient Protection and Affordable Care Act (the Act) through the court system. A federal court in Iowa made this finding in Salz v. Casey’s Marketing Co.. The Act provides protection to nursing mothers at their place of employment by requiring that employers provide a reasonable break time for an employee to express breast milk for her nursing child in a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public. The Act also provides that employers are not required to compensate an employee for the time spent expressing breast milk.Continue reading this entry
New California Law Bans Workplace Religious Discrimination
Posted in Discrimination, Retaliation and HarassmentCalifornia Governor Edmund G. Brown signed the California Workplace Religious Freedom Act into law, which bars religious discrimination in the workplace. In particular, the new law expands employees’ protections under the Fair Employment and Housing Act by making clear that wearing religious clothing or a religious hairstyle as a belief or observance is protected. In particular, “religious dress practice” shall be construed broadly to include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of the observance by an individual of his or her religious creed. Likewise, “religious grooming practice” shall be interpreted broadly to include all forms of head, facial, and body hair that are part of the observance by an individual of his or her religious creed.Continue reading this entry
New EEOC Rule Provides Guidance on “Reasonable Factors Other Than Age” Defense to ADEA Claims
Posted in Discrimination, Retaliation and Harassment; EEOC DevelopmentsIn the April 12, 2010 edition of Legal News: Employment Law Update, we analyzed a proposed EEOC rule addressing the “reasonable factors other than age” (RFOA) defense to age discrimination claims. This proposed rule has now been issued as a final regulation and is currently in effect.Continue reading this entry
Our Employee Is Going to Hurt Himself Performing That Job With That Medical Condition! What Can I Do? What Should I Do?
Posted in Discrimination, Retaliation and Harassment; Human Resources/ Employer MattersVirtually all employers have to think about employee safety and preventing risks of injury. Yet while employers and government agencies such as OSHA focus on safety, employees — and sometimes even their doctors — incredibly seem to take a cavalier approach in the face of seemingly obvious safety risks. In light of this, what can, and potentially should, an employer do?Continue reading this entry
How to Avoid the Most Popular EEOC Charge — Retaliation
Posted in Discrimination, Retaliation and HarassmentAccording to charge statistics maintained by the EEOC, retaliation charges accounted for more than 37 percent of all charges filed with the agency in FY2011, totaling more than 37,300 charges. Retaliation charges accounted for the largest percent of charges filed with the EEOC (race discrimination was second, totaling approximately 35,300 charges).Continue reading this entry
A Setback for the Paycheck Fairness Act, but the Equal Pay Act Remains
Posted in Discrimination, Retaliation and Harassment; Human Resources/ Employer MattersThe latest effort to pass the “Paycheck Fairness Act” has stalled in the U.S. Senate. The current version of the bill would make various changes to the portions of the Fair Labor Standards Act known as the Equal Pay Act. Currently, the Equal Pay Act prohibits employers from paying members of one sex a lower wage than members of the other sex for doing the same work. The Paycheck Fairness Act would, among other things, make it more difficult for employers to avoid liability for sex-based pay differentials, add prohibitions against retaliation for discussing or inquiring about wage rates, and increase penalties for violations. Democrats had previously tried and failed to pass a similar bill in 2010. (For additional information, see Legal News: Employment Law Update February 6, 2012 related to wage gap. On June 5, 2012, Senate Democrats sought to move the bill to debate, but the motion was defeated by a vote of 52 to 47. The defeat derailed the bill, at least for the time being, although its supporters have indicated they may try to push the bill forward again in the future.Continue reading this entry
Employees Can Be Personally Liable for Retaliation Under “Cat’s Paw” Theory
Posted in Discrimination, Retaliation and HarassmentEmployees alleging race discrimination under an old federal law, 42 U.S.C. § 1981, may bring claims against supervisors, managers, and human resource professionals who intentionally cause a decision-maker to take an adverse action against that employee in retaliation for protected activity. In a case of first impression, the United States Court of Appeals for the Seventh Circuit held that the cat’s paw theory can support individual liability under § 1981 for an employee who intentionally causes an employer to retaliate against another employee. Smith v. Bray, No. 11-1935 (7th Cir., May 24, 2012). Section 1981, enacted by the Civil Rights Act of 1866, is a federal statute that protects the rights of all persons to make and enforce contracts, including the making, performance, modification, and termination of contracts and enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.Continue reading this entry
Is Your Separation Agreement Missing Any of the Required Elements for an Age Release?
Posted in Discipline and Termination; Discrimination, Retaliation and HarassmentCan you name all four of the components needed in a separation agreement in order to release federal age discrimination claims?
- Must provide 21 days to consider the agreement
- Must provide seven days to revoke the agreement (after it is signed)
- Must advise the employee to consult with an attorney
- Must specifically identify the federal Age Discrimination in Employment Act (ADEA) as a released claimContinue reading this entry
Pregnant Employees Make Very Sympathetic Plaintiffs
Posted in Discrimination, Retaliation and HarassmentSome of the toughest discrimination claims involve pregnancy. A recent Florida case, Williams v. Crown Liquors, in which the court made the company go to a jury trial, helps to illustrate some of the potential pitfalls. The employee was the human resources director for the company and had been employed almost five years when she learned she was pregnant. About four months into the pregnancy, the employee shared the information with friends, family, and the company. Soon afterward, her doctor suggested she consider working from home due to concerns about high blood pressure and issues with her ability to commute more than an hour one way to work.Continue reading this entry
California Considers Joining Small but Significant Trend Toward Prohibiting Discrimination Against Unemployed Job Applicants
Posted in Discrimination, Retaliation and HarassmentThe California assembly recently continued a trend of federal and state legislatures seeking to prohibit discrimination against unemployed job applicants. Later this month, the California assembly will consider passage of a bill that would prohibit discriminating against an employee on the basis of his or her status as unemployed, and it also would prohibit publishing job advertisements that exclude the unemployed from submitting job applications.Continue reading this entry
Transgender Employees Also Protected From Sex-Based Discrimination
Posted in Discrimination, Retaliation and HarassmentMost employers have policies related to sex-based discrimination and conduct harassment trainings or sensitivity workshops based on traditional gender roles, but a new case highlights the need to consider transgender employees. Although there is no federal law explicitly prohibiting discrimination against transgender persons in employment, a transgender employee successfully sued her employer for discrimination on the basis of her gender non-conformity.Continue reading this entry
Appeals Court Finds Employer Liable for Supervisor’s Same-Sex Sexual Harassment
Posted in Discrimination, Retaliation and HarassmentA 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
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.