Category Archives: Discrimination/Retaliation

Documenting Employee Performance Problems May Become Key Defense in Future Retaliation Claims

Contributed by Allison P. Sues, September 10, 2019

Employee performance evaluation form on a desk.

According to the U.S. Equal Employment Opportunity Commission (EEOC), retaliation claims continue to be the most frequently filed charges of discrimination at the federal agency by far. According to the EEOC’s Fiscal Year 2018 Enforcement and Litigation Data, retaliation claims made up 51.6 percent of all charges filed last year. Given their frequency, employers should be as proactive as possible in protecting themselves from these claims.

The Seventh Circuit recently affirmed summary judgment in a Title VII retaliation case, and in doing so sent a reminder to employers about the importance of properly documenting employee performance concerns. In Rozumalski v. W.F. Baird and Associates, Ltd., the Seventh Circuit held that the plaintiff could not establish her retaliation claim due to an “insurmountable problem with timing,” where her employer was able to point to negative performance feedback that predated any of her protected activity. Indeed, an employer may be able to negate an inference that it disciplined an employee because he engaged in protected activity if it can point to documentation of its concerns forming the basis for the discipline before the employee ever complained of discrimination or harassment. 

Creating strong records of employee performance problems may serve as a strong defense to future retaliation claims. Employers should keep the following in mind regarding job evaluations and other documentation:

  • All concerns with employee performance should be documented in writing, even including verbal counseling on performance issues.
  • Documentation should avoid vague references to performance problems. For example, performance evaluations should not note problems such as “bad attitude” or “not a culture fit.”  These vague criticisms are too subjective and do not provide adequate coaching to the employee on what needs to be improved. Instead, employers should list specific examples of performance or attitude problems and the dates on which they occurred.
  • Evaluations of job performance should never include personal attacks. The documentation should focus on the performance problem – not the individual.  For example, rather than telling an employee that they are a very disorganized person, instruct the employee on what files or work matters need to be reviewed and filed or maintained in a more orderly fashion. 
  • Company expectations also need to be defined through concrete instructions.  For example, rather than vaguely instructing an employee to always be on time, the documentation should note that the employee is expected to be present and ready every Monday for the daily 9 am meeting. 
  • Each criticism of an employee’s job performance should be paired with specific coaching on how to improve and a deadline by which the employer expects the improvement to be achieved.
  • Documentation should communicate that the employer is taking the performance problem seriously. This can be done by the employer following up on the problem to ensure it has been improved. The employer should also explain the specific consequences for not improving the performance problem by a certain date.
  • Employee coaching or performance evaluations should allow for two-way communication between the employee and the employer so a discussion can occur regarding the problems and expected solutions. Documentation of the coaching or evaluation should confirm that the employee had an opportunity to discuss the issue.
  • Documentation should be created so that a third party with no knowledge of the specific issues can understand the performance problem and the expected improvement. The documentation should give enough information to provide context to the issue and fully explain the circumstances.

Recent Decision Highlights Risk of Post-Employment Retaliation Claims

Contributed by Suzanne Newcomb, July 30, 2019

3d illustration of scales of justice and gavel on orange background

A federal court in Pennsylvania recently ruled that a former employee presented sufficient evidence to warrant a jury trial on a claim she was retaliated against after she resigned. The decision serves as a good reminder that anti-retaliation protections extend beyond the end of the employment relationship to protect former employees.

Cherie Leese complained of sexual harassment while employed by a state agency. She later filed a charge alleging she was issued discipline in retaliation for her report. The parties eventually settled. As part of that settlement, Leese resigned and agreed not to apply for or accept employment within a subset of state agencies. Leese expressly retained the right to seek employment in other areas of state government. When her numerous attempts to secure another position failed, Leese filed a new charge, this time claiming her former employer retaliated against her after she resigned by hindering her attempts to get a new job.

The state, like many large employers, coded former employees based on the circumstances of their separation. Leese was assigned an unusual code, “voluntary resignation contact former agency.” Inquiries regarding Leese were directed to the agency’s general counsel, who responded by stating, “I can make no comment regarding Ms. Leese’s separation.” Leese presented evidence to suggest the code and response were atypical and that they “raised a red flag” which took her out of the running for various positions. 

A well-drafted release protects against claims stemming from conduct occurring before the agreement is signed, but individuals generally cannot waive their rights with respect to future events. As some courts have put it, “an employer cannot purchase a license to discriminate.”

So what steps can an employer take to protect against post-employment retaliation claims?

First, establish a protocol for responding to requests for information regarding former employees, train all supervisors on the protocol, and insist they follow it, regardless of the circumstances underlying an employee’s departure. To better control what information is released, consider directing all requests to a designated individual or department (usually HR). To prove retaliation – whether post-employment or otherwise – a plaintiff must link her protected activity to an adverse action. Leese’s claim was bolstered by evidence that the agency deviated from its usual practice when responding to requests for information about her. The ability to prove that the plaintiff was treated in exactly the same manner as everyone else often allows an employer to avoid trial by defeating a retaliation claim on summary judgment. 

Second, when negotiating severance or a settlement, expressly discuss whether the individual is eligible for rehire and what information the employer will provide in response to reference requests and other inquiries about the individual (** be mindful of restrictions in your local jurisdiction and/or industry – in Vermont, for example, including a no-rehire provision may invalidate a sexual harassment settlement). Incorporating the parties’ agreement on these items into the formal agreement provides certainty for both parties and avoids surprises down the road.

States Mandating Companies’ Board Member Composition

Contributed by Noah A. Frank, May 9, 2019

In an effort to try and help root out discrimination, the Illinois legislature has followed California’s top-down approach of regulating the boardroom to ensure that decision makers include historically disenfranchised classes. 

black and white gavel

On March 29, 2019, the Illinois House sent HB 3394 to the Senate.  HB 3394 is modeled after California Corporations Code § 301.3, which requires publically held corporations (domestic and foreign corporations that list their outstanding shares on a major U.S. Stock Exchange), which state on their SEC Form 10-K that the principal executive offices are in California, to have at least one female board member by 12/31/2019 – with the number of female board members required increasing based on the board size. A corporation may also increase the number of directors on its board to comply. The Illinois bill is more expansive, as it requires at least one female director and one African American director on the board by 12/31/2020 (though the number of “designated seats” does not increase as board size increases). Much like the California law, publically held corporations whose principal executive offices are in Illinois may increase the number of directors on its board in order to comply with this proposed legislation. 

Sizeable Penalties

Illinois’s (prospective) and California’s laws apply to public companies whose principle executive offices are in that state, according to SEC Form 10-K. Both laws empower their respective Secretary of State (“SOS”) to adopt rules, as well as impose penalties of (i) $100,000 for failure to fill the designated seat(s) as required, (ii) $300,000 for a second or subsequent violation, and (iii) $100,000 for failure to file board member information. Each designated seat must be held “during at least one point of a calendar year” to avoid a violation (e.g., it would not be a violation if a board member left mid-year and was not contemporaneously replaced). Presumably Illinois SOS’s regulations will address: (a) the process for filing board composition information, and (b) whether an individual female, African American director satisfies both composition requirements (e.g., can one person fill both “designated seats”).

Precedent for a National Movement

Equal opportunity laws – such as ban-the-box, salary history inquiry bans, and harassment training mandates – have been sweeping the nation in a patchwork, making compliance much more difficult.  While California is currently the only state mandating board composition, New Jersey’s AB 4726 (introduced 11/26/2018) is pending, and others states have passed non-punitive resolutions encouraging female representation on boards, including Illinois (HR 439) and Massachusetts (Res. S 1007) in 2015, and Pennsylvania (HR 273) in 2017. Other than Illinois HB 3394, we are unaware of any other legislation mandating composition based on race or any other protected-class.

Will HB 3394 Become Law?

In 2018, overriding then-Governor Rauner’s veto, the Illinois General Assembly amended the Illinois Equal Pay Act to add African Americans to women as protected classes, effective 1/1/2019. (Note: Governor Rauner rejected the limitation of “African Americans” and suggested expanding the protection to race, color, national origin, and ancestry.) Governor Pritzker, along with the current General Assembly, have taken steps to enact legislation that protects employees and increases expectations and obligations for employers and businesses, ranging from increased minimum wage, wage and hour penalties, attacks on unfair competition agreements, and the like. Given this backdrop, it seems likely that Illinois will pass a board composition law, with the question being whether the current proposed language will be amended or changed. 

Is Compliance Limited to Public Companies?

Like many experiments, these laws typically first apply to public corporations that are, presumably, sophisticated enough to know, understand, and comply with their legal obligations. If successfully implemented, the requirements may be expanded to cover unlisted public companies, nonprofits, and large companies or employers.

Public companies that might be subject to these laws should start planning now, including considering topics such as board succession planning to identify qualified directors, and amending governing documents to permit increasing the board size to comply. Of course, qualified counsel should be consulted to avoid unforeseen pitfalls created by these untested laws.

US Supreme Court to Decide Title VII Sexual Orientation/Transgender Discrimination Cases

Contributed by Carlos Arévalo, April 22, 2019

Judge’s Supreme Court gavel with law books

The United States Supreme Court announced today that it will consider whether Title VII protects workers from discrimination based on sexual orientation. To date, several federal appeals courts have reached different conclusions on this issue. In 2017, the Seventh Circuit was the first to rule that sexual orientation discrimination was a form of sexual discrimination. The Second and Sixth Circuits followed in 2018. But in 2017, the Eleventh Circuit reached the opposite conclusion. And earlier this year, the Fifth Circuit reaffirmed its long standing “binding precedent” that Title VII does not prohibit discrimination on the basis of sexual orientation. This circuit split set up the stage for the Supreme Court to address the issue.

In Bostock v. Clayton County, Georgia (consolidated with Zarda v. Altitude Express, Inc., the Second Circuit case), the Supreme Court will decide whether discrimination “because of…sex” within the meaning of Title VII includes discrimination based on sexual orientation. In R.G. & G.R. Harris Funeral Homes v. EECO, the Sixth Circuit case, the court will decide whether Title VII bars discrimination against individuals based on their transgender status or sex stereotyping.

In Bostock, the plaintiff was fired from his position as child welfare services coordinator in 2013 after joining a gay softball club. The county conducted an internal audit on CASA program funds he managed and found that Bostock allegedly spent CASA funds fees sponsoring his softball team. Bostock alleged that “in May 2013, during a meeting with the Friends of Clayton County CASA Advisory Board, where his supervisor was present, at least one individual made disparaging comments about Bostock’s sexual orientation and identity and participation in the softball league.” A month later, Bostock was fired for “conduct unbecoming of a county employee.”  In Harris Funeral Homes, the employer fired the plaintiff, who previously presented as a man, when she said she would begin presenting as a woman at work and would adhere to the dress code for women.

Just last year, the Supreme Court declined to address a similar question originating in the Eleventh Circuit in Evans v. Georgia Regional Hospital, but additional petitions subsequently followed creating the need for clarity on Title VII. While the Supreme Court is poised to finally address this issue, many states have already enacted protections in anticipation of how the conservative leaning Supreme Court might rule. Should the Supreme Court rule that Title VII does not afford protection, employers should expect a massive onslaught of local and state laws and regulations to counter such a ruling. 

Check out our previous articles addressing Title VII and Sexual Orientation/Transgender Discrimination cases:

Sixth Circuit Says Transgender Discrimination is Protected

Seventh Circuit Issues Landmark Decision Holding that Title VII Prohibits Discrimination Based on Sexual Orientation

Suspicious Timing of Termination Supports Retaliation Claim

Contributed by Debra Mastrian, December 12, 2016

A recent 7th Circuit Court of Appeals decision, Gracia v. Sigmatron, International, Inc., Case No. 15-3311, is a good reminder to employers to be careful in taking adverse action against an employee who recently engaged in statutorily protected activity. In Gracia, a longtime employee, who had complained of sexual harassment by her supervisor and filed a charge of sex discrimination with the Equal Employment Opportunity Commission (EEOC), was fired two weeks later for allegedly allowing a subordinate to make a production error on a customer order.  The employee sued her former employer for sex discrimination and retaliation. While Gracia was unsuccessful on her sexual harassment claim, a jury found in her favor on the retaliation claim, awarding $57,000 in compensatory damages and $250,000 in punitive damages.

39454888 - notice of employee termination with glasses and ballpoint pen.Gracia was highly regarded and had received a number of promotions. In her current role as assembly supervisor, she was responsible for production output, quality, and overseeing the work of her team members on the assembly line. Gracia’s male supervisor began sending her sexually graphic photographs through the company’s email system. Gracia did not complain because of her supervisor’s position and his friendship with the company’s president. The supervisor then began writing Gracia up for attendance issues, even though Gracia had not been previously written up for similar problems in the past and, in fact, had been told her attendance was “excellent.” Gracia alleged the supervisor began calling her at home and asking her out. She declined and was suspended a few days later for attendance problems.

Gracia then complained to HR about her supervisor. HR informed the company’s president, who ultimately told Gracia and her supervisor to ‘shake hands’ and get along. Gracia, unhappy with the company’s response, filed a charge with the EEOC. Two weeks later, she was fired after one of her subordinates made a mistake, even though others made similar mistakes and were not terminated. Perhaps of significance to the jury on the punitive damages award was evidence that the company never admonished the supervisor for sending the graphic photographs but rather simply told him to stop using the company’s email for non-business reasons. The company also refused to admit the photographs violated the company’s sexual harassment policy.

On the retaliation claim, the 7th Circuit reiterated the general rule that timing alone is rarely enough to support a retaliation claim; however, if there is other circumstantial evidence, it may raise an inference of retaliatory motive. Here, the suspicious timing of Gracia’s termination, coupled with evidence that others had not been terminated for similar mistakes, supported the retaliation claim.

Employers are reminded that before you take action against an employee who has recently engaged in protected activity (i.e., complained of discrimination, filed a charge), make sure you have, or would have, taken the same action against other employees for doing the same thing. Consult with experienced legal counsel before taking adverse action against a ‘protected’ employee.

Seventh Circuit Opinion Confirms Flexible Analysis of Adverse Employment Actions

Contributed by Allison Sues, November 9, 2016

On October 19, 2016, the United States Court of Appeals for the Seventh Circuit reversed a District Court’s Rule 12(b) (6) dismissal of two plaintiffs’ retaliation claims brought under Title VII and the Illinois Human Rights Act. In Volling and Springer v. Kurtz Paramedic Services, Inc., Case No. 15-3572, two Emergency Medical Technicians (EMTs) alleged that their employer and its new subcontractor refused to hire them because they had reported and/or supported claims of sex discrimination and sexual harassment against the employer’s previous subcontractor to the Equal Employment Opportunity Commission.

gavelbwThe new subcontractor filed a motion to dismiss, arguing that the plaintiffs had not stated a viable retaliatory failure-to-hire claim because the plaintiffs had not applied for the position that they claimed they were denied. The District Court dismissed the retaliation claims after referring to the prima facie case for a retaliatory failure to hire, which required the plaintiffs to allege that they applied for and were qualified for the position sought.

On review, the Seventh Circuit examined the circumstances under which the plaintiffs claimed to have been refused a position to determine whether they alleged an adverse employment action distinct from a straightforward failure-to-hire claim. In this case, the employer terminated its contract with the previous subcontractor following the plaintiffs’ reports of misconduct and replaced it with a new subcontractor. The employer informed all the EMTs who had worked with the previous subcontractor, with the exception of the two plaintiffs, on how to apply for unpublished vacancies with the new subcontractor. The new subcontractor hired all of these applicants. The plaintiffs never applied and were not hired. The Seventh Circuit reasoned that the plaintiffs alleged a discriminatory practice slightly different than a failure to hire – the failure to inform them of the vacancies where other employees who had not engaged in protected activity received notice of the positions. The Seventh Circuit stated, “plaintiffs’ failure to apply stemmed from the very discriminatory practice they complained of, and their failure to apply need not bar their retaliation claims.”

Employers should note that a court’s analysis of retaliation claims may be flexible and stretch outside confines of oft-repeated prima facie cases. Discrimination and retaliation claims can stem from not only a failure to hire an applicant because of his or her protected characteristic or prior protected activity, but also for any disparate treatment in the way employers publicize or recruit for the position prior to the hiring decision.

Can Employment Discrimination Plaintiffs Survive Summary Judgment?

Contributed by Julie Proscia and Steven Jados

The Seventh Circuit recently affirmed summary judgment for the employer in Miller v. St. Joseph County, a race discrimination case, and in doing so applied what may prove to be a streamlined standard for determining whether employment discrimination plaintiffs can survive summary judgment.

The plaintiff in Miller was a long-time employee of the county’s police department who sought several promotions which he did not receive. He alleged, among other things, that the promotion denials, a temporary assignment he disliked (but which did not change his compensation, benefits or rank), and the fact that he did not receive certain other promotions for which he apparently did not even apply, were all the result of race discrimination.

The court, while noting that it could not overrule the McDonnell Douglas burden-shifting method of proof, and its prima facie elements, instead applied a brief three-part test as a substitute for what the court called the “cumbersome” indirect and direct methods of proof. The three parts are: (1) membership in a protected class; (2) an adverse employment action; and (3) evidence from which “a rational jury could conclude that the employer took that adverse action on account of . . . protected class, not for any non-invidious reason.”

Applying that test, the court noted that there was no evidence of racial slurs or other manifest racial hostility; no evidence that the plaintiff was more qualified than the individuals hired into the positions plaintiff sought; and no evidence that race played a factor in the temporary assignment the plaintiff disliked. In short, the court looked at the evidence the plaintiff presented and saw nothing that could lead a rational jury to conclude that race discrimination occurred—and the court affirmed summary judgment in the employer’s favor as a result.

Now, what does this mean as a practical matter for human resources and management professionals?  It appears to signal the court’s interest in adjudicating discrimination cases on a common-sense basis.  That sounds simple, but whether it actually streamlines the litigation of discrimination cases—especially a case based heavily on circumstantial evidence—remains to be seen.