Telecommuting May Not Be A Reasonable Accommodation

The Fifth Circuit recently upheld the dismissal of a lawsuit against an employer who denied an employee’s request to telecommute on the grounds that regular attendance at work is an essential function of her job as a litigation attorney.  Credeur v State of Louisiana, 16-CV-30658 (5th Cir. 2017).  The employer did provide unpaid leave as an alternate and reasonable accommodation.


Given the proliferation of digital workspaces and telecommuting, well written job descriptions identifying whether attendance is an essential function are increasingly important.

Recent 7th Circuit Court of Appeals Case Demonstrates Importance of Documentation of the Interactive Process

On May 4, 2017, the U.S. Court of Appeals for the Seventh Circuit in Brown v. Milwaukee Board of School Directors affirmed the summary judgment dismissal of a former employee’s disability discrimination claim under the ADA.   While the employer consistently sought to find reasonable accommodations, plaintiff failed to engage in the interactive process because neither she nor her doctor clarified the extent of her restrictions despite the board’s multiple written requests.  

 Employers who engage in the interactive process in good faith, and document their efforts are much better positioned to prevail in failure to accommodate claims.


D.C. Circuit Court of Appeals Upholds the NLRB’s Revision to Its Back Pay Calculation Formula

On June 9, 2017, the U.S. Court of Appeals for the DC Circuit unanimously upheld the NLRB’s pro employee approach in King Soopers Inc. v. NLRB.   As previously reported, the NLRB revised its back pay calculation formula to allow employees full recovery for all reasonable interim employment and search-for-work expenses.


Federal District Court Rules Federal Protections Expanded for Transgendered Employees

According to one federal court judge, a transgendered former employee can proceed with an employment discrimination case under the American With Disabilities Act (“ADA”) alleging that she was mistreated and fired based on her gender-identity-related disability. Blatt v. Cabela’s Retail, Inc., No. 5:14-cv-04822 (E.D. Pa. May 18, 2017).

While courts have recognized federal protections for transgendered individuals under theories that the person did not conform to gender stereotypes or under a typical sex discrimination analysis, the Court in Blatt recognized a new theory – that is, a transgendered individual’s claims of discrimination based upon “gender dysphoria” under the ADA.  In arguing for coverage under the ADA, Blatt argued that her gender dysphoria limits her in several major life activities such as reproduction and interacting with others.

The rights and protections afforded to transgendered employees under federal, state, and local law rapidly are expanding. Employers should ensure that their policies and processes are compliant under all applicable laws to protect members of the LGBTQ community.

Timing Is Everything: Federal Judge Permits Suit to Continue Despite Time-Barred Allegations

A federal magistrate in New York has recommended that an employment discrimination case survive a dismissal motion even though some of the claims relied on facts that occurred outside the statute of limitation. Grimes-Jenkins v. Consolidated Edison Company of New York, Inc., 16-cv-4897.  In Grimes, the Plaintiff alleged claims of discrimination and retaliation under various federal, state, and local laws.  In doing so, plaintiff alleged a course of conduct dating back to 1990.

The Court recommended that the bulk of Plaintiff’s claims be dismissed. However, the Judge ruled that any claim based on a supervisor’s alleged racist statements that Black employees were “going to the fields” should survive the motion to dismiss even though they were made more than three years before the filing of the complaint.  The Court determined that such allegations were relevant to Plaintiff’s claims of discrimination which allegedly lasted throughout the length of her employment.  The allegations also were considered because of the employer’s alleged refusal to address Plaintiff’s complaints.  Accordingly, the Court found that allegations regarding such conduct could be used to support her claims, regardless of when the conduct allegedly occurred.

Cases such as this illustrate an often overlooked factor that employers should consider in evaluating possible claims. Simply stated, employers cannot ignore comments that may have been made (or actions that were taken) even if they took place a long time ago.  When confronting situations that involve a long history of alleged harassment or discrimination, employers are advised to consult with counsel before taking adverse action.

Evidence That Similarly Situated Employees Included Those of the Same Race Dooms Race Discrimination Claim

A federal district court granted an employer’s summary judgment motion in light of evidence that employees allegedly not disciplined for similar infractions as the plaintiff included those of the same race and color as the plaintiff..  The Court ruled that the purported inconsistency in enforcement, if any, was not because of the plaintiff’s race or color.  Harden v. OmniSource Corp. (N.D. Ind. May 4, 2017).

In Harden, plaintiff alleged he was scrutinized more closely than his co-workers because of his race (African American) and/or color.  Although the parties disputed whether the plaintiff’s coworkers were disciplined for similar infractions, it was undisputed that: (1) the employer terminated a Caucasian employee’s employment for safety violations about one month before the plaintiff’s termination; and, (2) some of the comparators identified by the plaintiff were of the same race and color.  Thus, the Court found that the alleged inconsistency in enforcement had no connection to the plaintiff’s race or color.  Furthermore, where the plaintiff presented no evidence of the comparators’ disciplinary histories, plaintiff’s receipt of four written warnings in three months could easily have differentiated him from those who allegedly were treated less severely.  

Although the result was favorable in this case for the employer, the decision serves as a reminder of the importance of ensuring consistent application of company policy.  Regularly scheduled management training can help reduce incidents that may create liability to the company.

Ninth Circuit Confirms Prior Salary Can Be a Legitimate Factor Other Than Sex Under Federal Law

Relying on salary history to justify differences in employee pay can be a valid defense under the Equal Pay Act, according to a recent decision by the United States Court of Appeals for the Ninth Circuit.  Rizo v. Yovino, 2017 U.S. App. LEXIS 7427 (9th Cit. Apr. 27, 2017). 

According to the Ninth Circuit, prior salary alone can be a legitimate factor other than sex warranting dismissal of an EPA/Title VII claim, provided the employer’s use of prior salary effectuates a stated business policy and is reasonable in light of the stated purpose.  The ruling adds to an already existing Circuit split – while the Seventh and Eighth Circuits both allow employers to rely on prior pay as an affirmative defense to federal wage discrimination laws, the Tenth and Eleventh Circuits have held that prior pay alone cannot justify a wage disparity (though it can be considered alongside other non-discriminatory factors).  Notably, Rizo’s claim arose before California enacted its Fair Pay Act, which states specifically that “[p]rior salary shall not, by itself, justify any disparity in compensation.”

The case serves as a reminder to employers that relying on an employees’ salary history to determine current compensation is increasingly risky.  A growing number of states and localities (including recently New York City) have enacted or are in the process of enacting legislation prohibiting employers from inquiring into an applicant’s salary history or otherwise basing employee compensation on prior pay.  Employers should review their applicable jurisdiction’s requirements before basing compensation decisions on an employee’s previous compensation. 


Eight Figure Jury Award in California Highlights Risks of Retaliation Claims

A jury in California awarded $22.4 million in punitive damages to a former sales manager of Cardiovascular Systems, Inc., a medical device company, based on a finding that his employer retaliated against him under both the California Fair Employment & Housing Act (California Government Code § 12940(h)) and the California Whistleblower Act (California Labor Code § 1102.5(b)) for making complaints regarding alleged discrimination against female employees as well as various unethical medical sales practices.  The punitive damages award came just one day after the jury awarded Plaintiff $2.7 million in compensatory damages.

The employer contended that Plaintiff’s employment was terminated for legitimate, non-retaliatory reasons based on a verbal confrontation between Plaintiff and his supervisor.  The employer submitted evidence that Plaintiff yelled, slammed his fists on a table and called his supervisor a “liar.”  The employer also argued that Plaintiff’s complaints were not asserted in “good faith”, but were simply made up to prevent his supervisor from modifying his sales territory.

The jury rejected the employer’s defenses and entered a verdict for the Plaintiff.  Prior to the award of punitive damages, Defendant’s attorney told the jury that Plaintiff already had been fully compensated by the jury’s $2.7 million award of compensatory damages.  He also stated that since the employer had already gotten the message, there was no need for any award of punitive damages.  The Plaintiff’s attorney told the jury that the Defendant attorney’s statements showed that the employer still did not believe it violated the law, despite the unanimous verdict against it.  The Plaintiff’s attorney emphasized that the employer failed to present any evidence that it had or will make changes to prevent retaliation from occurring in the future.

The magnitude of this jury award underscores the importance of training supervisors of the risks of retaliation claims even if the employee’s underlying complaint is believed to have been made in bad faith.  Further, it highlights that employers should carefully consider that juries will evaluate the extent to which an employer has presented evidence that its policies and practices have or will prevent unlawful retaliation in the workplace.