Refusal By Employer to Remove Letter of Reprimand from Employee’s Personnel File Creates Viable Claim for Retaliation

In Munive v. Fairfax County School Board, the Fourth Circuit recently ruled that an employer’s refusal to rescind a disciplinary notice issued after claimant filed a discrimination charge with the Equal Employment Opportunity Commission, and the consequent loss of a promotion, could constitute an adverse action sufficient to create a bona fide retaliation claim.  As such, the Court denied a motion to dismiss and permitted pretrial discovery to continue

The case serves as a reminder to employers to evaluate all of the facts prior to taking (or refusing to take) any action against an employee who recently has engaged in protected activity, even if the action may not appear to result in a significant impact on the employee’s terms and conditions of employment.

Rescinding Termination May Not Defeat Retaliation Claim

Proving that non-economic damages and perhaps attorney’s fees are driving forces in litigation, constructive discharge clams were asserted and survived summary judgment in a federal district court action in Oregon. The Court’s ruling permitted a plaintiff’s retaliation claim to survive summary judgment even though the employer rescinded the termination and rehired plaintiff within 24 hours after termination.  (Aichele v. Blue Elephant Holdings, LLC dba Human Collective II, November 13, 2017).  Denying the dismissal motion, the Court ruled that even though the employee’s discharge was rescinded within 24 hours after it was implemented, and even though Plaintiff suffered no economic loss, she was deemed to have been subject to an actionable adverse employment action under Title VII.   In effect, the timing of the discharge soon after certain complaints was sufficient to permit a jury to determine if the company was liable.   Reinstatement within 24 hours may have a favorable impact on damages, but not on liability.

In this case, Plaintiff had a documented history of lodging complaints about working conditions. While the employer considered its options and consulted with counsel, the employee lodged a sexual harassment complaint after a video was played in the workplace that contained sexually graphic content. After viewing the video, the employee shouted at her manager and refused to leave the premises when instructed to do so.  Several days thereafter, she emailed a formal sexual harassment complaint.  Soon thereafter she was discharged.  On the day following termination, the owner rescinded the termination decision and placed Plaintiff on paid administrative leave.  Although she was placed back on the schedule soon thereafter, she refused to return to work.   In sum, she suffered no loss of wages because the discharge was rescinded, but she resigned (claiming to have been constructively discharged).

Seventh Circuit: Multi-Month Leave of Absence Not a Reasonable Accommodation under the ADA

Determining how long an employer must hold a position for an absent worker is a question that vexes Human resources Directors and Operations management. The Seventh Circuit recently ruled, in Severson v. Heartland Woodcraft, Inc., that an employee’s request for extended leave after having exhausted his Family Medical Leave Act (“FMLA”) entitlement is not a “reasonable accommodation” under the Americans with Disabilities Act (“ADA”).  This ruling is at odds with other federal rulings and many state court decisions requiring an employer to show that it would suffer an undue hardship by holding open the possibility of return from an unpaid leave (for an employee usually on COBRA).

In Severson, the plaintiff employee suffered from back pain that became increasingly worse, causing him to take a leave of absence under the FMLA.  On the last day of his FMLA covered leave, the employee had surgery.  As such, he could not return to work for several months thereafter.  Because the employee had exhausted FMLA leave, the employer terminated the employment (but invited him to reapply for a position once he had recovered and was medically cleared to work).  The employee filed suit under the ADA, arguing that the employer failed to provide him with a reasonable accommodation – specifically extended leave.

The Court found in favor of the employer, noting that “[t]he ADA is an antidiscrimination statute, not a medical-leave entitlement.” The Court noted that permitting intermittent time off or a short leave of absence “may, in appropriate circumstances” act as a reasonable accommodation.  However, it distinguished those situations from a lengthy month leave, during the employee is not available to perform the essential functions of his/her job.  Ultimately, the Court found that if extended leave were a reasonable accommodation, “the ADA is transformed into a medical-leave statute – in effect, an open-ended extension of the FMLA.  That’s an untenable interpretation of the term ‘reasonable accommodation.’”

Please keep in mind that the ruling is only binding upon courts within the Seventh Circuit (Illinois, Indiana, and Wisconsin) interpreting the ADA. Employers throughout the country should consider that in many jurisdictions a leave of several months may still be considered a reasonable accommodation under the ADA and should consult counsel accordingly.

The Weinstein Effect: Importance of Anti-Harassment and Anti-Discrimination Training

It seems as if a report of workplace sexual harassment or sexual battery is published nearly daily. While the media focuses upon notable public figures, workplace harassment can occur at any company.  In many of those reports, it seems that the environment was not conducive to reporting the alleged misconduct or to obtaining an internal remedy.  Employers would be well advised to publish anti-harassment policies, conduct anti-harassment raining and to make available bona fide reporting and corrective protocols. Doing so is protective of the workforce and legally can serve as a shield to claims.  For example, in Morgan v. Triumph Aerostructures, LLC, the United States District Court for the Middle District of Tennessee gave credit to an employer’s proactive steps in addressing harassment by dismissing an employee’s claims for sex discrimination, retaliation, and hostile work environment under Title VII and the Tennessee Human Rights Act.

Summary judgment was appropriate because the employer established its entitlement to the Faragher/Ellerth affirmative defense by proving it had promulgated and enforced an anti-harassment policy.  Notably, the employer provided discrimination and harassment training, ensured that employees were aware of how to report harassment, fully investigated the complaints of the plaintiff, and engaged in remedial action thereafter. The importance of effective anti-harassment and anti-discrimination training should not be underestimated.  Employers should periodically review their policies and conduct regular training to ensure (a) that all employees know how to report harassment and (b) that supervising employees are equipped to properly investigate and intervene when a complaint has been made.

A Jackson Lewis webinar on this topic is slated for December 14. Details can be found by clicking here.

Congressional Bill: Joint Employer Liability May Become More Limited

The EPL industry rightfully has been concerned about the NLRB’s and courts’ expansion of liability from the seeming employer to those with relationships to that entity.  Franchisors increasingly were exposed to liability for franchisees’ alleged misconduct and contractors were being served with lawsuits alleging discrimination by subcontractors or staffing agencies.  This expansionist trend may be reversing.  The U.S. House Education and the Workforce Committee, on October 4, approved the Save Local Business Act (H.R. 3441).  The U.S. Senate is considering the bill.  If enacted into law, this Act would limit the extent to which businesses can be considered “joint employers” under NLRB standards. Under the bill, entities such as subcontractors would be considered a joint employer with the contracting entity only where one exerts “direct, actual and immediate” control over the employee policies of the other. H.R. 3441 effectively seeks to reverse the NLRB’s decision in Browning-Ferris Industries of California, 362 NLRB No. 186 (2015), in which the Board held that entities are joint employers where one exercises even indirect control over the policies of the other.   Meanwhile, the U.S. Court of Appeals for the D.C. Circuit is considering an appeal of Browning-Ferris and is expected to issue its decision shortly.


Top 5 Tips for Conducting Pre-Employment Medical Exams

In a recently filed lawsuit, the U.S. Equal Employment Opportunity Commission contends that Consolidated Edison Co. (“Con Ed”) violated the Americans with Disabilities Act (“ADA”) and the Genetic Information Non-Discrimination Act of 2008 (“GINA”) by its use of pre-employment medical examinations. According to the Complaint, Con Ed required applicants to submit to pre-employment medical examinations in which the company improperly sought disclosure of genetic information and used this information in deciding whether to hire certain applicants.

Employers should be aware of the following general requirements under the ADA and GINA:

  1. The ADA prohibits all disability-related inquiries and medical examination prior to a valid offer of employment
  2. If a valid conditional offer of employment has been issued, the ADA allows an employer to make disability-related inquires and conduct medical examinations as long as it does so for all entering employees in the same job category
  3. Once employment begins, the ADA only permits an employer to make disability-related inquiries and require medical examinations if they are job-related and consistent with business necessity (see guidance by clicking here)
  4. GINA prohibits employers from requesting genetic information about applicants, such as family medical history, during the course of any pre-employment medical examination; and
  5. GINA prohibits employers from using genetic information in making employment decisions, such as hiring, firing, promotions and compensation (see guidance by clicking here)

Employers found to have violated the ADA and/or GINA could be liable to aggrieved applicants and employees for back pay, compensation for economic losses, emotional pain and suffering, punitive damages, and attorneys’ fees. Consequently, employers are encouraged to review their hiring procedures and contact counsel with any compliance question that may arise.

U.S. Court of Appeals Decision Highlights Importance of Carefully Drafting Release Agreements

In Zuber v. Boscov’s, the Third Circuit narrowly interpreted a release agreement to permit the plaintiff to pursue a claim under the FMLA for interference and wrongful termination.  The employer moved to dismiss on the basis that his claims were barred by a previously-entered Compromise and Release Agreement (“C&R”) settling his workers’ compensation claim.  The C&R provided that it constituted a “full and final resolution of all aspects of the 8/12/2014 alleged work injury claim” and that the:

“employee is forever relinquishing any and all rights to seek any and all past, present and/or future benefits, including, but not limited to, wage loss benefits, specific loss benefits, disfigurement benefits, medical benefits or any other monies of any kind including, but not limited to, interest, costs, attorney’s fees and/or penalties for or in connection with the alleged 8/12/2014 work injury claim as well as any other work injury claim(s) Employee may have with or against Employer up through and including 4/7/2015.”

The District Court granted the employer’s motion to dismiss holding the language contained in the C&R was broad enough to encompass the FMLA claims.  However, the Third Circuit reversed, finding that the “C&R is unambiguously a specific and limited release rather than a general release,” that was only intended to release future workers’ compensation claims. 

The Third Circuit’s decision was limited to the specific agreement at issue, and the Court only discussed its effect on the employee’s FMLA and common law claims.  Nevertheless, releases should be drafted carefully to be as comprehensive as legally possible. 


Federal Court: Employer’s Letter to Employees During Pending EEOC Investigation May Constitute Unlawful Retaliation

In EEOC v. Day & Zimmermann NPS, Inc., a federal court in Connecticut found that an employer that sent a letter to employees informing them they might be contacted by the Equal Employment Opportunity Commission (“EEOC”) may be liable for unlawful retaliation.  This unlikely scenario came about after the EEOC requested the last known telephone numbers and addresses of employees who may have information relevant to a former employee’s charge of disability discrimination.  After providing the contact information to the EEOC, the employer sent a letter to over 100 employees which included: (1) the name of the Charging Party; (2) a brief description of the allegations against the company and a summary denial; (3) the employees’ right to decide whether they wished to speak with EEOC; (4) the name and contact number of the company’s attorneys should any employee wish to have them present for the interview; and (5) a description of the company’s anti-retaliation policy.

The Company described the letter as a “standard courtesy notice” designed to “minimize business disruption” and keep the employees informed.  However, the charging party alleged that after the letter was sent, he was treated unfairly with respect to work referrals.

In determining that the letter may constitute unlawful retaliation, the Court found that the Company’s inclusion of Charging Party’s name, together with the description of sensitive facts concerning Charging Party’s requested accommodations, might have a reasonable tendency to coerce or intimidate the Charging Party and/or other employees from providing information to the EEOC.

This case demonstrates that employers should use caution when communicating with employees during the course of a government agency investigation. While such communications can serve important employee relations purposes, careful consideration should be given to the risks of sending the communication and, if so, the contents of such communication.

11th Circuit: Rights of Breastfeeding Employees Protected by Federal Law

On September 7, 2017, the Eleventh Circuit in Hicks v. City of Tuscaloosa, 16-13003 held that breastfeeding is covered under the Pregnancy Discrimination Act (“PDA”).  In Hicks, the plaintiff was a police officer with the Tuscaloosa Police Department.  Hicks’ doctor recommended that the Plaintiff be considered for alternative duties because the ballistic vest could cause breast infections that could cause an inability to breastfeed.  Plaintiff’s supervisor, however, did not believe Hicks had any limitations and told her she could either not wear a vest or wear a vest that could be “specially fitted” for her.  To Hicks, not wearing a vest was not an accommodation because it was dangerous and the “specially fitted” vest option would be ineffective because those vests left “gaping, dangerous holes.”  Hicks resigned and filed her lawsuit asserting, among other things, that the City violated the PDA by compelling her to resign after refusing her an accommodation to breastfeed at work.

The jury found that the City’s action in refusing an accommodation afforded to other employees (in the past, the department had modified working conditions for male officers for various reasons) constituted a constructive discharge.  The Eleventh Circuit, citing to a prior Fifth Circuit decision, found that the “denial of accommodation for a breastfeeding employee violated the PDA when it amounted to constructive discharge.”

Several state and local laws require employers to provide accommodations for breastfeeding employees (see, e.g.,  However, all employers should be mindful that the ruling in Hicks represents the second time a federal appellate court has reached the conclusion that discrimination because a woman is breastfeeding is prohibited under the PDA, and revise their policies and procedures accordingly.

Spousal Jealousy Provides Grounds for Discrimination Claim

In a decision of apparent first impression in New York, an appellate court has ruled that the sexual jealousy of an employer’s spouse may be considered gender discrimination under New York State and New York City law (Edwards v. Nicolai).  In this case, the husband and wife were co-owners of a chiropractic office.  The practice hired a female massage therapist and yoga instructor.  The husband was her direct supervisor.  The complaint alleged that during the course of plaintiff’s employment, her relationship with the husband was “purely professional.”  During the course of employment, the husband allegedly told her that his wife might become jealous because she was “too cute.”  Several months thereafter, the wife sent the employee a text message stating “You are NOT welcome any longer … DO NOT ever step foot in there again, and stay the [expletive] away from my husband and family!!!!!!! And remember I warned you.” Soon thereafter, the employee claimed she received an email from the husband stating: “You are fired and no longer welcome in our office. If you call or try to come back, we will call the police.”

The trial court granted the employer’s motion to dismiss plaintiff’s claims of gender discrimination. However, the appellate court overruled the decision based on a prior decision which held that “adverse employment actions motivated by sexual attraction are gender-based and, therefore, constitute unlawful gender discrimination.”

Take away: Employers (especially those in New York) should give broad consideration to possible gender-based claims before taking adverse action against an employee where the gender of the employee is related to the employment action.