Under the theory of “disparate impact,” even facially neutral policies can result in claims of discrimination when a “protected group” suffers a statistical disadvantage vis a vis another group (i.e., the rule of thumb is a twenty-percent disadvantage). For example, in Andreana v. Virginia Beach City of Public Schools, the United States District Court of the Eastern District of Virginia denied a motion to dismiss and ruled that Plaintiff could proceed with a claim of age discrimination by alleging that the employer’s hiring process brought down the average age of its Information Technology Specialists by about three years when employees had to reapply for their positions following a restructuring. While enough to get by a motion for dismissal, the worker still must show that he was qualified for the remaining positions and that age motivated the denial of placement.
Many times, timing is everything (or nearly so). For example, in Dighello v. Thurston Foods, Inc. (and unlike the Eleventh Circuit’s ruling in Bailey v. Oakwood Healthcare, Inc., about which we recently wrote), the trial court held that a plaintiff who was discharged shortly after suffering an asthma attack at work plausibly alleged an FMLA retaliation and interference claim. In Dighello, plaintiff worked as a router and dispatcher for a wholesale food service distributor. Her position required her to work 12.5 hour shifts without breaks. After four years on the job, she became ill with walking pneumonia and was absent for two days. Upon return, she requested a reduced work schedule as an accommodation. The employer refused, insisting that the full schedule be worked. Shortly thereafter, plaintiff suffered a bronchial asthma attack while in the office and went to the hospital for emergency treatment. When she returned to work and was advised that she was required to work the full 12.5 hour work days. Several days later, and following her refusal to commit to the full schedule, the employee was discharged.
For purposes of the Plaintiff’s retaliation claim, the employer conceded all elements besides whether the plaintiff exercised rights protected by the FMLA. The Court found that seeking emergency medical treatment could qualify as protected FMLA leave and thus the plaintiff sufficiently stated a retaliation claim. As for her FMLA interference claim, the Court noted that an employer’s failure to notify an employee of her FMLA rights may constitute interference if the lack of notice causes the employee to forfeit FMLA leave. Here, the plaintiff’s allegations that her employer instructed her to work 12.5 hour shifts, even after her asthma attack, were sufficient to show that the employer’s instructions may have had a “chilling effect” or fully prevented the plaintiff from taking FMLA leave. Thus, the court permitted the plaintiff’s FMLA interference claim to proceed with respect to her asthma condition.
Employers should be ever mindful of their duty to avoid interference with an employee’s FMLA rights. What qualifies as interference may be subject to challenge. As this decision illustrates, even certain work related comments may discourage an employee from taking FMLA leave.
In Everson v. SCI Tennessee Funeral Services, LLC., the federal court granted summary judgment dismissing Plaintiff’s FMLA claims because the worker failed to follow Defendant’s FMLA notice requirements when requesting leave. As discussed below, Plaintiff’s ADA claim also was dismissed.
In this lawsuit, Plaintiff alleged, among other things, that Defendant retaliated against him for requesting FMLA leave. The fact pattern is a common one. It began several years earlier when Plaintiff requested time off for a medical procedure. Subsequently, Plaintiff informed the employer that he was going to need to have another procedure and requested one week off from work, which Defendant also granted. Two days later, Plaintiff, a funeral director, was fired for leaving an embalmed body at one of Defendant’s facilities without refrigeration in violation of Defendant’s policy.
In its summary judgment motion, the employer asserted that Plaintiff failed to properly give notice of his intent to take FMLA leave. According to the Defendant’s FMLA policy, Plaintiff was required to contact the Leave and Disability Center to make a request for FMLA leave. Plaintiff countered that he provided notice to his supervisor each time he took off for a procedure. Here, the Court found that Plaintiff could not establish a prima facie case because Plaintiff did not follow the proper notice and requirements for taking FMLA leave that Defendant established and as permitted under federal regulations. The ADA claim also was dismissed because Defendant articulated a legitimate, non-discriminatory basis for Plaintiff’s termination.
Employers should review their FMLA policies to be sure they are detailed and specific as they can create, within the bounds of regulations, detailed procedures that employees must follow. By doing so, employers may be able to limit liability for certain FMLA claims. Nevertheless, management training is recommended to help supervisors identify notice and other obligations.
In Bailey v. Oakwood Healthcare, Inc., No. 17-2158 (April 23, 2018), the 11th Circuit found that an employer’s decision to terminate an employee on the day she returned from maternity leave was not discriminatory because during her leave, the employer discovered deficiencies in performance and falsifications in her employment application. The decision in Bailey reinforces that taking a protected leave does not insulate an employee from termination for poor performance and other inappropriate conduct. However, it should also serve as reminder that the perceived unfairness associated with a termination so close in time to taking a protected leave may result in a lawsuit (and the headache that come with it). In so ruling, the Circuit concluded that the timing of the employer’s termination of Bailey was “unfortunate” and that the “manner in which the decision was communicated was clumsy.” Still, the 11th Circuit found “no fault” in Oakwood’s decision to terminate Bailey and noted that the Court had “no authority to interfere in the private personnel management matters, however unwise or unfair they may appear to be.”
Employers should always be cautious when terminating an employee who has taken a protected leave (or engages in other protected activity). Where an employer has a good reason for termination and that reason is supported by objective evidence, an employer may consider (carefully) terminating that employee. Be mindful, however, that even with objective evidence – such as a falsified employment application in this case – the employer could still be liable for discrimination or retaliation if, for example, it knew of other employees who engaged in similar activity but terminated only the one who engaged in protected activity.
After years of litigation across the country and sharply divided rulings among the Circuits (some damning class/collective action waivers and others enforcing them), and over seven months after oral argument, the United States Supreme Court upheld the enforceability of arbitration agreements that include class and collective action waivers. It was a close decision, 5-4, like many key workplace law rulings. The ruling can be read here.
Having an arbitration agreement with a broad waiver against multi-claimant litigation can play a significant role in reducing risk and the cost of defending claims. If an employer is sued by an employee, for example, the claims would be “transferred” from state or federal court to an arbitral forum. In that arbitration, the scope of claims would be limited to the single claimant (rather than facing a jury trial and claims brought in behalf of a class). An agency (e.g., DOL, EEOC) could still pursue a claim on a systemic or class basis, but agency litigation is far less frequent than private litigation. Clearly, a class waiver agreement (and the avoidance of jury trials in federal and state courts) could materially reduce exposure and possibly legal fees. Other than in “rocket docket” Circuits, arbitrations tend to occur more quickly than court adjudications, thus reducing potential back pay and spurring claims toward resolution while memories are fresh and witnesses are more likely to be available.
Jackson Lewis was counsel in one of the consolidated cases where the lower court held the waivers enforceable (Fifth Circuit), which was affirmed by the Supreme Court. The other Circuits (Seventh and Ninth) were reversed.
For a more detailed analysis of the Court’s decision click here.
In Lassiter v. Hidalgo Medical Services, No. 17-00850 (D. N.M. Apr. 18, 2018), a former employee sought to compel production of outside counsel’s reports and findings of an internal investigation into harassment claims. The discovery demand was denied, in this instance, because the Court found that the documents, which contained “factual summaries of the information she learned in the course of her investigations” were protected by work-product privilege. The documents were protected because they were “prepared by a representative of the defendant in anticipation of litigation” and because the plaintiff could not show “a substantial need for the materials and an inability to obtain their equivalent through other means absent undue hardship.” Further, in this case, the defendant did not waive the privilege because it disclaimed any reliance on the investigation as a defense in the matter.
While this decision is comforting, it is not an across-the-board protection of investigations conducted by outside counsel. In some instances, a claimant, may be able to establish a substantial need for the report and, in doing so, prove that the information cannot be otherwise obtained. In those instances disclosure is likely to be ordered.
On Friday, May 4, 2018, the National Labor Relations Board ruled that a janitorial services company violated the National Labor Relations Act when it terminated an employee who pursued wage theft claims and discussed the company’s poor working conditions with Houston city lawmakers. Specifically, the employee filed a formal wage theft complaint with the city of Houston and spoke about the working conditions of the company’s employees at a Houston city council meeting. The NLRB concluded that the employee’s conduct in filing a wage theft complaint and discussing the company’s working conditions with the Houston city council both constituted concerted activity protected by the NLRA. In finding that company terminated the employee’s employment in response to the above concerted activity, the NLRB ordered that the employee be made whole for lost earnings and benefits, but denied the employee’s request for consequential damages because current NLRB law does not provide for such damages.
This decision is significant for two reasons: (1) this is the first decision rendered by a Republican majority NLRB that includes newly appointed Republican member John Ring, thereby signaling that the NLRB will continue to aggressively prosecute cases involving non-union employees that engage in protected concerted activity; and, (2) the decision reaffirms that consequential damages (such as emotional distress damages) are not available under the NLRA.
Union and non-union employees alike have the right to collectively discuss their terms and conditions of employment. Employers should be careful not to take adverse employment actions against employees for discussing their wages or workplace related issues. Remember – employees do not need to be unionized in order to be afforded the protections of the NLRA.
For employers defending discrimination claims in which the plaintiff claims emotional distress, social media accounts are potential treasure troves of evidence of claimant’s feelings, thoughts, and mental impressions. In Forman v. Henkin, New York State’s highest court held that the “threshold inquiry” for social media disclosure is whether the materials sought are “reasonably calculated to contain relevant information.” The Court rejected the “heightened threshold” previously applied by lower courts. That higher threshold had “conditioned discovery of material on the ‘private’ portion of a Facebook account on whether the party seeking disclosure demonstrated there was material in the ‘public’ portion that tended to contradict” plaintiff’s claims.
Although the Forman case did not involve an employment law case, we see no reason the same principles would not be applicable in the employment law litigation context.
By now, employers generally are aware that a growing number of states and municipalities are passing bans prohibiting pre-employment inquiries into an applicant’s salary history. This trend is part of a growing effort in the United States to reduce the pay gaps that may result from discrimination. In contrast, Michigan and Wisconsin became the first states to enact legislation barring localities from implementing legislation that would prohibit pre-hire salary history inquiries.
While employers in Michigan and Wisconsin may welcome legislative relief, New York City, and states including California, Delaware, Massachusetts, and Oregon have taken an opposite approach and passed legislation banning salary history inquiries. Employers should check their policies to confirm that they are in compliance with applicable laws and assess whether those responsible for hiring are familiar with all applicable laws.
In Mumm v. Charter Township of Superior, the United States Court of Appeals for the Sixth Circuit held that Plaintiff is entitled to a trial where her employer began the termination process on the same day she threatened suit over a difference in pay between her and a male counterpart even though she did not allege the pay disparity was the result of sex discrimination.
In the lawsuit, Plaintiff alleged violations of Title VII of the Civil Rights Act and Michigan’s Elliot Larsen Civil Rights Act, claiming that she was paid less than her male counterpart for substantially similar work because of her sex and that she was retaliated against after she complained about the alleged sex discrimination. The District Court granted summary judgment for Defendant, holding that Plaintiff did not clearly allege that the difference in pay was the result of sex discrimination and that Plaintiff could not show that Defendant’s non-retaliatory reasons for her termination were pretexts. The Court of Appeals reversed, holding that Plaintiff’s threat to sue over the difference in pay was clear enough to qualify as protected activity given that the officials should have known that Plaintiff was charging sex discrimination.
In light of this decision, employers should consider that employee complaints about different treatment among employees could be protected activity even if the employee does not invoke any “magic words” describing the basis for the different treatment. Managers who handle these types of complaints should be trained accordingly.