Under the National Labor Relations Act (NLRA), the remedies available to a successful claimant have been limited to “make whole relief.”  Like Title VII before the Civil rights Act of 1991, relief under the NLRA typically was limited to lost wages, benefits, other economic losses, and reinstatement.  The underlying policy behind such “make whole relief” is restoration of the successful claimant, as nearly as possible, to the position he or she would have been but for the illegal discrimination.  In a groundbreaking decision, King Soopers Inc. and Wendy Geaslin, NLRB Case Number 27-CA-129598, the National Labor Relations Board (NLRB) held that damages available to an employee, who had been interrogated, suspended and then fired for participating in union activity, must include expenses for the post-separation search-for-work and interim employment expenses as a direct part of the make whole remedy.  Prior to this ruling, the NLRB traditionally had treated reasonable search-for work and interim employment expenses as a mere offset that reduced the amount of interim earnings that is deducted from gross back pay.  In rejecting this traditional approach, the NLRB found that such expenses should be calculated separately from back pay – i.e., they must be awarded regardless of whether the successful claimant received any interim earnings or had interim earnings less than such expenses.  The Board found that the practical result of the traditional approach has been that successful claimants are improperly awarded “less than make whole relief  . . . contrary to the central remedial principle underlying the [NLRA].”

 The King Soopers Inc. decision highlights the NLRB’s expansion of the traditional remedies available to alleged victims of discrimination or retaliation under the NLRA.  As a result, employers are well served to carefully examine all of the underlying facts prior to terminating or taking other adverse action against an employee to ensure that his or her rights under the NLRA have not been violated.

 

The U.S. District Court for the District of Connecticut ruled that a Muslim employee raised a triable national origin and religion discrimination claim against his employer arising out of his five-day suspension for using the gym during work hours. Ucar v. Conn. Dep’t of Transp., (D. Conn., No. 14-CV-765, 8/11/16).  The situation arose when, after receiving a tip, the Connecticut Department of Transportation (DOT) commenced an investigation into Ucar’s use of the gym during work hours, resulting in Ucar being placed on a five-day suspension.  Ucar subsequently brought this action under Title VII, alleging DOT discriminated against him on the basis of his national origin and religion, amongst other claims. 

DOT moved for summary judgment on all claims.  With regard to his claim of discrimination, the motion was denied.  The Court found that Ucar proffered sufficient evidence to establish the first three elements of a prima facie case of disparate treatment under Title VII: (1) he was a member of a protected class; (2) was qualified for his position; and, (3) he suffered an adverse employment action, i.e., the five-day suspension.  With regard to the fourth element—“the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent”—the Court found that a reasonable juror could conclude that Ucar satisfied this element.  The evidence demonstrated that similarly situated employees (insofar as they are union employees of DOT) outside of Ucar’s protected class were permitted to take short breaks to smoke cigarettes or go for a walk, without adverse consequences.  DOT argued that these employees were not “similarly situated” because they did not use the gym, were not part of his work unit, and some were not even in his chain of command.  Despite this argument, DOT’s motion for summary judgment was denied.

This case serves as a reminder that careful consideration must be given prior to taking adverse action.  For litigation avoidance, broad interpretation of the term “similarly situated” is best.

 

In light of evidence that not all employees were given training or information about the employer’s sexual harassment policy, the Fifth Circuit recently reversed the grant of summary judgment in favor of an employer.  The court ruled that the evidence was sufficient to create a fact issue as to whether the employer took reasonable steps to prevent sexual harassment.  Pullen v. Caddo Parish School Board, 2016 U.S. App. LEXIS 13254 (5th Cir. July 20, 2016).  In Pullen, the plaintiff claimed her supervisor sexually harassed her and continued to do so after she worked in a different department and was no longer under his supervision.  During her employment, the plaintiff did not complain contemporaneously about the supervisor’s alleged harassment. 

The facts showed that the employer posted its sexual harassment policy on bulletin boards around the central office and that the policy was also available online.  The lower court concluded that plaintiff’s failure to report the alleged harassment for more than two years was unreasonable.  However, the Fifth Circuit found that the plaintiff produced evidence, including testimony from other employees, that if believed would show that employees were not trained on sexual harassment; were not informed of the existence of the policy; were not shown where to find it; and were not told whom to contact regarding harassment.  The appellate court thus held there was a genuine dispute of material fact as to whether the employer took reasonable steps to prevent sexual harassment.

This decision serves as a reminder to employers of the importance of distributing their anti-harassment policy to all employees and conducting training on the policy; the existence of a policy alone is insufficient.  Despite the efforts taken by the employer to post the policy, there was no proof the plaintiff actually was aware of it.  Best practices dictate that employers obtain a signed acknowledgement from each employee proving receipt and conduct regular training.

 

EEOC has released updates to its proposed EEO-1 reporting provisions. The updates were published July 14, 2016 in the Federal Register and the public with have 30 days to submit comments.  The updates consider and respond to many of the comments that were submitted in response to the Agency’s original proposal which was published earlier this year. Submission of pay data to the government likely will lead to a significant increase individual and class claims of employment discrimination based on pay disparity as well as systemic claims brought by the EEOC whose focus has been on remediating perceived pay inequities.  Broad access to data undoubtedly will make such claims more difficult to defend.

EEOC’s Original Proposal:

EEOC’s original proposal requires private employers and federal contractors with 100 or more employees to identify and report the number of employees who fall into each of 12 “pay bands” based on W-2 earnings within each of the 10 EEO-1 categories. Employers would be required to report on actual W-2 earnings and hours worked for a 12-month period prior to the snapshot the employer uses for EEO-1 reporting, which is required to be between July 1 and September 30.

Updated Proposal:

The updated proposal remains unchanged in many regards and still requires employers to report W-2 earnings and hours worked within each of the 10 EEO-1 categories. However, the revision proposes to change the EEO-1 filing deadline to March 31st of every year (instead of the current September 30th deadline) and proposes to change the workforce snapshot reported to a pay period between October 1st and December 31st of the reporting year. This change would take effect for EEO-1 filings in 2018.  Employers would be required to file the EEO-1 report by March 31, 2018, thereby giving employers a year and a half to comply with the new requirements.  No EEO-1 reports would be filed in 2017.  The reporting period for 2016, however, would remain unchanged – with reports being due by September 30, 2016.

The updated rule also states that, for exempt employees, employers would have the option to either: (i) report 40 hours per week for full-time exempt employees, and 20 hours per week for part-time exempt employees, multiplied by the number of weeks these individuals were employed during the EEO-1 reporting year; or (ii) provide actual hours worked by exempt employees during the EEO-1 reporting year, if the employer already maintains accurate records of these hours.

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It appears highly likely that the updated rule will be finalized soon. In light of this, employers should evaluate their ability to comply with the enhanced reporting requirements and consider undertaking a proactive pay equity analysis to determine if there are impediments to fair pay that can be addressed before pay data is submitted to the government.

In Beaton v. Metropolitan Transportation Authority New York City Transit, Docket No. 15 CV 08056 (S.D.N.Y. June 15, 2016), the Court denied Defendant’s motion to dismiss Plaintiff’s disability discrimination claims under the ADA and local laws.  The case is significant because it addressed an alleged  mental disability.  By way of background, Plaintiff was employed by Defendant as a station agent in a subway station in New York City for over ten years.  Plaintiff alleged, among other things, that Defendant terminated his employment on the basis of his disability (schizophrenia) and the effects of the medication used to treat that condition.  Specifically, Plaintiff’s employment was suspended, and thereafter terminated, after Plaintiff’s supervisor discovered him sleeping during work time.  Plaintiff alleged that while working he experienced severe schizophrenia symptoms, necessitating a higher dosage of his anti-psychotic prescription medication.  The higher dosage caused drowsiness.  Plaintiff advised his supervisor of his condition and the related side effect.  Plaintiff nevertheless was subjected to disciplinary proceedings, despite corroboration from his physician, and terminated from his employment.  In rebuttal, the Transportation Authority argued that Plaintiff could not proceed with his disability discrimination, in part, because: (1) sleeping on the job prevents an employee from performing the essential functions of the job, thus making him not qualified for the position; and (2) Plaintiff did not raise a plausible inference that his employment was terminated because of his disability.

The Court held that Plaintiff was a long-tenured employee, having worked for years without incident.  Thus, found the Court, he was qualified for the position under the law.  The Court further held that it was plausible that Plaintiff’s employment was terminated because of his disability given that Plaintiff advised his supervisor of his condition, and nonetheless, Defendant terminated his employment.  Though employers are permitted to discipline employees for policy violations, despite a disability, compliance with the interactive process is important – including relying upon medical information.  Courts have upheld discharges for sleeping on the job, but increasingly will demand proof of an interactive process to address disabilities and perhaps more proof of hard to the employer’s business operations.  Employers need to have a very strong basis to disregard appropriate medical information when disciplining an employee.

In Jones v. Pate Rehab. Endeavors, Inc., Docket No. 14-CV-2218 (N.D. Tx. June 17, 2016), the Court denied Defendant’s motion for summary judgment dismissing Plaintiff’s age discrimination claim under the ADEA.  By way of background, Defendant employed Plaintiff as a Patient Transporter, which required him to transport patients in a motor vehicle.  During his employment, Plaintiff was involved in three car accidents in less than a three-year period.  Under the employer’s interpretation of its policies, Plaintiff’s employment was required to be terminated.  Accordingly, at the age of 73, Plaintiff’s employment was terminated.  In support of its motion for summary judgment, Defendant asserted that Plaintiff’s employment was terminated in accordance with its workplace policies; not age-based animus.  In opposition, Plaintiff produced evidence that, among other things, a 28 year old Patient Transporter was not terminated despite being involved in four accidents in a two year period.  Defendant, however, asserted that its failure to terminate the younger Patient Transporter was an administrative error.  In denying summary judgment, and finding that an issue existed worthy of a jury trial, the Court held that Defendant’s inconsistent application of its workplace policies, and its assertion that it mistakenly failed to terminate the younger employee, were issues of fact precluding summary judgment.  “[A] reasonable jury could disagree that Defendant’s stated reason for Plaintiff’s discharge was the true or real reason for terminating him, and find that the stated reason was pretext for intentional age discrimination.”  As a result, Plaintiff’s age discrimination claim would proceed to trial.

This case serves a reminder that employers must vigilantly monitor consistent application of their workplace policies.  Inconsistent application, even if inadvertent, may allow an otherwise defensible claim to survive summary judgment.

A federal court in Missouri has held that an employer’s employment application unlawfully required job applicants to fill out a three-page “Health History” before being considered for a job, in violation of the Americans with Disabilities Act and the Genetic Information Non-Discrimination Act of 2008.  Equal Employment Opportunity Commission v. Grisham Farm Products, Inc., Case No. 6:16-cv-03105-MDH (W.D. Mo. June 8, 2016).  Phillip Sullivan, a disabled retired law enforcement officer, wanted to apply for a job with Grisham Farm Products, Inc.  He downloaded Grisham’s seven-page online employment application, which included a three-page health history form containing 43 questions for all applicants to answer.  The health history form asked numerous questions about the applicant’s health, including whether he had “consulted” a healthcare provider “within the past 24 months,” regardless of whether he had been diagnosed with a particular condition, or sought “advice, diagnosis or treatment” from a healthcare provider.  The form also asked applicants to identify whether future diagnostic testing had been recommended or discussed with their medical provider.  Sullivan refused to complete the form and contacted the EEOC instead.

After negotiations between the parties and with their consent, the Court entered a judgment finding that Grisham’s employment application violated the ADA because it sought medical information at the pre-offer stage, and that it also violated GINA because it requested information about individuals’ current health status in a way that was likely to result in obtaining genetic information.  In addition to injunctive relief prohibiting Grisham from using the health history form, Grisham was ordered to pay Sullivan $10,000.  This case highlights the fact that employers should not ask applicants for medical information at the pre-offer stage.  Employers should review their employment applications to ensure that they do not ask questions that elicit information about medical conditions or genetic information.

 

The United States Court of Appeals for the Seventh Circuit rejected a professor’s claims that a university violated Title VII of the Civil Rights Act of 1964 (“Title VII”) and the First Amendment to the United States Constitution when it allegedly denied tenure because she reported sexual harassment to the university on behalf of a student and discussed shortcomings of the university’s sexual harassment policy.

The Court affirmed the dismissal of plaintiff’s Title VII claim. It concluded that, because the student was not an employee of the school, there was no unlawful employment practice prohibited by Title VII.  The Court noted that there was no “suggestion in the complaint that in supporting the student, [plaintiff] was opposing unlawful employment discrimination, and therefore engaging in statutorily protected activity.”

Plaintiff’s claim that the university retaliated against her for engaging in protected speech under the First Amendment met a similar fate. The Court ruled that, “When a public employee speaks on matters pursuant to employment duties, that speech is not protected under the First Amendment.”  Plaintiff alleged that she made the report because she believed it was her job to do so.  The Court concluded that she had not provided a plausible basis for her argument that she was speaking as a citizen, and not an employee of the university, when she reported the harassment of the student.

The Court noted, “We have not ruled on whether allegations of retaliation against faculty who support students in bringing sexual harassment claims to university officials could state a claim for retaliation under Title IX” because the plaintiff did not make this argument.

Hatcher v. Board of Trustees of Souther Illinois University and Kimberly Kempf-Loenard, No. 15-1599 (7th Cir. July 14, 2016).