Employer’s Misleading Statements Allow FMLA Claim to Survive Motion to Dismiss

The U.S. District Court in Wisconsin recently held in Reif v. Assisted Living by Hillcrest LLC d/b/a Brillion West Haven, that misleading statements by an employer regarding the Family and Medical Leave Act (“FMLA”) can give rise to an FMLA interference claim, even before an employee is eligible for leave.

In January 2018, the Plaintiff notified the Company’s Human Resources department that she scheduled a required surgery one week after she became eligible for FMLA so as to be entitled to FMLA protection. However, an HR Coordinator told Plaintiff that she needed to schedule surgery as soon as possible (before she was FMLA eligible) and that “she would work with her so that her FMLA would be approved.”

Based on these representations, Plaintiff scheduled an earlier surgery and submitted an FMLA request. Her FMLA request was denied because she was not yet eligible and later was terminated. Plaintiff then filed suit alleging, among other claims, FMLA interference The Defendant moved to dismiss asserting Plaintiff was not eligible for FMLA leave. The Court denied Defendant’s motion stating “it would be fundamentally unfair to allow an employer to force an employee to begin a non-emergency medical leave less than two weeks before she would become eligible under FMLA, assure her that she would receive leave and her job would be waiting for her when she returned, and then fire her for taking an unauthorized leave.”

Employers should train management, including human resources team members, to ensure consistent policy application, communication and to avoid false or mistaken representations that can give rise to liability.

Pre-Employment Examinations Without Disparate Impact May Still Serve As Basis For Disparate Treatment Claims

In EEOC v. Upstate Niagara Coop., Inc., the U.S. District Court for the Western District of New York denied Defendant’s motion to dismiss finding that the EEOC stated claims for discrimination based on sex in violation of Title VII.

The EEOC filed suit against Defendant alleging that it discriminated against female applicants by hiring less qualified male applicants for production-related positions despite a pool of qualified female candidates. A female applicant who was not hired, despite passing the physical exam upon which her offer was contingent, filed a charge with the EEOC in 2010 alleging the pre-employment physical examination had a disparate impact on female applicants. Although evidence suggested that the physical examination did not have a disparate impact on women, the EEOC nonetheless alleged the company engaged in a pattern or practice of disparate treatment in hiring on the basis of sex.

Defendant disputed the that the alleged failure to hire qualified female applicants gave rise to an inference of discrimination, a requirement in order to establish a prima facie case of sex discrimination under Title VII. The Court held, however, that because the company hired someone outside the aggrieved employees’ protected class, the Complaint supports a minimal inference of discrimination. The Court also cited statistics regarding the disparity between male and female employees and that qualified female applicants were passed over for employment in favor of male applicants, some with no relevant past work experience.

Employers should continuously monitor their hiring practices to ensure that they are hiring qualified applicants and that their hiring practices do not – even unintentionally – result in a disparate impact on a protected class.

Another Circuit Prompts the Supreme Court to Resolve Title VII Sexual Orientation Claims

As the Circuits become further divided on issues of civil rights, the scope of legally protected characteristics under Title VII become harder to predict. After a recent loss in the 11th Circuit, a claimant petitioned the Supreme Court to review the 11th Circuit’s decision that “discharge for homosexuality is not prohibited by Title VII.” Bostock v. Clayton Cty. Bd. of Comm’rs, 894 F.3d 1335, 1337 (11th Cir. 2018). In its ruling, the 11th Circuit expressly rejected the argument set forth by the Supreme Court in Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (1998), that same-sex sexual harassment is actionable under Title VII if a person of the opposite sex would have been treated differently.

The 11th Circuit’s holding seemingly follows the Department of Justice’s brief last summer arguing that Title VII as enacted does not cover sexual orientation, and changes to the statute are left to Congress. In contrast with the federal government’s current interpretation and the 11th Circuit’s decision are rulings in other Circuits. For example, the 2nd Circuit has held that Title VII applies because it is necessary to consider claimant’s sex as a factor in considering discrimination on the basis of sexual orientation. See Zarda v. Altitude Express, Inc., 883 F.3d 100, 132 (2d Cir. 2018). Accord Hively v. Ivy Tech Cmty. College of Ind., 853 F.3d 339, 358-59 (7th Cir. 2017).

If certiorari is granted, argument will focus, in part, upon the breadth of the ruling in Oncale. Regardless, for many employers, state and local laws and court rulings have expanded legal protections beyond those enumerated in Title VII. The best rule remains – make decisions based on documented, easily explained business reasons.

Guidance Issued on New York City Mandatory Sexual Harassment Training

The New York City Commission on Human Rights has released Frequently Asked Questions (FAQs) as guidance on the “Stop Sexual Harassment in NYC Act.”  New York City employers with at least 15 employees are required to conduct annual anti-sexual harassment training for all employees starting April 1, 2019.  For complete details click here.

EEOC Reports Increase in Sexual Harassment Claims

This past year has been filled with disturbing reports of alleged sexual assault and sexual harassment by prominent figures in business, politics, and even the judiciary.  Not surprisingly, the number of EEOC sexual harassment filings has increased. In data published in October, the EEOC reported, that in 2018, it filed 50% more lawsuits regarding harassment than it did in 2017.  Additionally, the EEOC reported that charges alleging sexual harassment increased in 2018 by 12% when compared to 2017.  Along with these statistics, the EEOC reported that it recovered nearly $70 million for victims of sexual harassment in 2018, compared to only $47.5 million in 2017.

In response to the great many reports of sexual harassment, State and local governments have enacted laws requiring comprehensive anti-harassment training, posting of informational posters, and specific language in personnel policies — all aimed at reducing incidents of sexual harassment and increasing awareness of the reporting and remediation alternatives (from internal complaints to contacting governmental agencies).   It is likely that, at least in the near future, this all will result in a greater number of claims and perhaps greater difficulty resolving lawsuits and administrative charges.

Human Resources Employee Permitted to Pursue Discharge Claim

Rather than conduct in breach of an inherent duty of loyalty to the employer, the Eleventh Circuit Court of Appeals has ruled that a human resources representative engaged in protected activity under Title VII of the Civil Rights Act of 1964 when she referred a coworker who complained of discrimination to a plaintiff’s attorney.  Gogel v. Kia Motors Manufacturing of Georgia, Inc.  The ruling is more surprising in light of the fact that, as a Team Relations Manager, the HR representative was responsible for, among other things, investigating and resolving internal complaints of discrimination.  However, the Court focused upon the allegations that the employer “forbade” Gogel – the HR representative – from investigating a complaint made by an employee, Diana Ledbetter, and generally ignored other complaints of discrimination made by Ledbetter, other Kia employees, and Gogel herself.  The employer allegedly discharged Gogel after discovering that the same attorney represented both Gogel and Ledbetter, as it believed that Gogel had “encouraged or even solicited [Ledbetter’s] filing of the charge” and thus “at the very least, there [was] an appearance of a conflict of interest.”  Gogel subsequently sued, alleging, among other things, that she was fired for engaging in protected activity. 

The Court held that Gogel’s actions were reasonable (and thus protected) considering she tried to resolve complaints internally but failed due to the inadequacy of her employer’s procedures.  Further, the Court held the ruling advanced the “purpose of the statute and the need to protect individuals asserting their rights” by going outside the employer’s internal procedures.

This decision serves as an important reminder of the importance for companies to effectively implement and follow their investigation and complaint resolution procedures.  


Sixth Circuit Rules on Sexual Misconduct Case

The Sixth Circuit recently held, in Doe v. Baum, that a public university violated the Due Process Clause and Title IX when it did not allow a student accused of sexual misconduct to conduct a cross-examination of the claimant during university-run proceedings. The Court ruled that since the public university had to “choose between competing narratives to resolve the case,” the accused was entitled to conduct a cross examination.

The case began after Jane Roe filed a complaint of sexual misconduct against John Doe, another student, after stating she was too drunk to provide consent. Doe, however, argued that Roe was an active participant in the sexual encounter and did not appear intoxicated at the time. After conducting an investigation, in which witnesses provided statements in support of both sides, the investigator recommended that the University find in favor of Doe. Roe appealed to the University’s three-member Appeal Board, which reversed the investigator’s decision and concluded that Roe’s description of events appeared more credible. Rather than face expulsion, Doe withdrew from the University and filed suit.

In its analysis of the case, the Sixth Circuit ultimately found that the case rested on two main points: (1) since Doe was accused of serious misconduct, he was entitled to a hearing; and, (2) since credibility was a central aspect of the case, Doe should have been permitted to cross-examination. The Court then applied a balancing test, stating that Doe’s interest in not being labeled a sex offender greatly outweighed the interest of the University, which had little to lose by permitting cross examination.

In light of recent attention surrounding sexual misconduct cases, this ruling may cause sister Circuits to follow suit and expand the nature of investigations and related hearings.

“Regarded As” Disability Claim Does Not Require Proof of an Employer’s Subjective Belief

Under the ADA Amendments Act of 2008 (“ADAAA”), an individual meets the requirement of being “regarded as” having a disability, and thus is protected from discrimination, where his or her employer believes that he or she is substantially limited in a major life activity regardless of whether he or she actually is disabled.  Prior to the ADAAA, to prove a “regarded as” claim, a plaintiff in the Ninth Circuit was required to put forth evidence that the employer “subjectively believed” the plaintiff was disabled.  However, the U.S. Court of Appeals for the Ninth Circuit recently made clear that the ADAAA no longer requires a plaintiff to proffer such evidence.

In Nunies v. HIE Holdings, plaintiff complained of an injury and asked for less physically demanding work.  After the plaintiff’s request initially was approved, he advised one of the decision makers of his injury.  A few days later, the employer rescinded its offer to transfer plaintiff and told him that the position no longer existed because of “budget cuts.”  At that point, the employer terminated plaintiff’s employment. Possibly establishing pretext, a few days later, the employer advertised an opening for the position that it advised plaintiff no longer existed.  The Ninth Circuit reversed the lower court’s grant of summary judgment, holding that it was enough for plaintiff to put forth evidence that he advised his supervisor of his shoulder injury and that his position suddenly was eliminated without requiring evidence of his employer’s subject belief.

Employers are reminded of their obligations under the Americans with Disabilities Act that liability can be imposed where an employer considers and treats an employee as having a disability even if the employee does not in fact have one.