Category Archives: employment discrimination

Responding to Violence in the Workplace – A “Catch 22” for Employers

Contributed by Michael Wong, August 10, 2017

Workplace investigation

The recent instances of violence in the workplace remind us of the complex task facing employers. Employers must maintain a safe work environment for employees while operating within the parameters of the many federal and state laws that may protect certain employee conduct. More importantly, because an employer has no objective “litmus test” for predicting which employee may become violent under particular triggering circumstances, there is no foolproof way to effectively eliminate the hazard.

Employers today can find themselves in a seemingly untenable dilemma when they have violence threaten to invade their workplace, as disciplining or terminating the problem employee can result in a legal claim as well.

In Mayo v. PCC Structurals, Inc., 795 F.3d 941, 942 (9th Cir. 2015), the employer, PCC, terminated the plaintiff, Thomas Mayo, after he made threatening comments to three co-workers that he was going to bring a gun to work and start “shooting people.” After the threats were reported, the employer took the proper precautions by immediately suspending the plaintiff, barring him from company property, and notifying the police. The police took him to the hospital for medical treatment on the basis that he was an imminent threat to himself and others.

After taking three months of leave under the FMLA and Oregon’s equivalent state law, a treating psychologist cleared Mayo to return to work, but recommended a new supervisor assignment. Instead, the employer terminated Mayo. Plaintiff then sued PCC alleging he was terminated because of his disability in violation of the Americans with Disabilities Act (ADA) and state law.

In Mayo v. PCC, the United States Court of Appeals for the Ninth Circuit held that an employee who made serious and credible threats of violence against coworkers is not a qualified individual with a disability under the ADA or Oregon’s disability discriminatory law. In granting summary judgment to the employer, the Court held that an essential function of almost every job is the ability to appropriately handle stress and interact with others, and that an individual is not qualified and cannot perform the essential functions of the job if he or she threatens to kill co-workers – regardless of whether such threats stem from a mental condition or disability.

What should employers do?

Against this potential liability minefield, an employer should develop an effective written workplace violence preventative policy. For those who already have policies in place, it would be a good idea to review your policies and practices with your legal counsel to make sure that these issues and any potential concerns are properly addressed.

Ask yourself the following questions to see if your policy needs to be modified in light of the recent lawsuits:

  1. Do your policies advise employees that they will be subject to discipline (up to and including termination) if they “fail to foster collegiality, harmony, positive attitude, and good relations in the workplace?”
  2. Do you have a statement that there is “zero tolerance” regarding threats or acts of violence?
  3. Do your managers/supervisors know what steps should be taken if there is a threat, complaint of bullying or violence?
  4. Have your managers, supervisors and employees been trained on identifying signs and symptoms of behavior which may predict potential violence (erratic behavior; comments regarding violence, homicide or suicide; provocative communications; disobedience of policies and procedures; presence of alcohol, drugs or weapons on the worksite; evidence of violent tendencies or abuse of alcohol or drug use)?
  5. Have your managers and supervisors been trained and regularly reminded about the importance of good documentation and dangers of bad documentation?

Employer May Be Held Liable For Employing Murderer!

Contributed by Noah A. Frank, July 27, 2017

Claims of negligent hiring, training, and retention is alive and well. Employers must be prepared to investigate, and fully remediate supervisors’ misconduct.

code of conduct

Recently, the Seventh Circuit Court of Appeals (Illinois, Wisconsin, Indiana) held that an employer may be liable for intentional acts committed by supervisory employees against other employees outside of work if the employer has been negligent. The tragic case, Anicich v. Home Depot USA, Inc., 852 F. 3d 643 (7th Cir. 2017), arose from the death and rape of a pregnant employee at the hands of her supervisor.

Background

Home Depot and its garden centers subcontractors (together, the “Employer”) jointly employed Brian Cooper as a regional manager. The victim’s estate alleged the employer knew Cooper had a history of sexually harassing, verbally abusing, and physically intimidating female subordinates, which included making crude and lewd comments, yelling and swearing at them, rubbing against them, controlling their conduct by pressuring them into spending time with him alone, and even throwing things.

The supervisor’s mistreatment of one subordinate, Alisha Bromfield, began in 2006 when she started working for the employer seasonally as a teenager. Cooper fixated his attention on her, calling her his “girlfriend” at work and repeating the above misconduct with her. Senior management, aware of Bromfield’s repeated complaints, failed to take reasonable steps to protect Bromfield, ensure that Cooper completed mandated anger management training or remove his supervisory duties. This ended in tragedy.

In 2012, when Bromfield was 7 months pregnant, Cooper threatened her. Using his supervisory authority, he demanded that she attend an out-of-town wedding with him, telling her he would fire her or reduce her hours if she refused. Bromfield acquiesced, but denied Cooper’s recurring demand to “be in a relationship.” After the wedding, Cooper murdered Bromfield, and then raped her corpse.

The Court held that employers have a duty to act reasonably in hiring, supervising, and retaining their employees, and that this was part of a broader trend toward recognizing employer liability for supervisors’ intentional torts committed outside the scope of employment – even where the harm caused was wholly disproportionate to more predictable harms (e.g., murder/rape versus continued sexual harassment, emotional/mental trauma). Because Cooper was alleged to have abused the employer’s grant of supervisory authority over Bromfield, the employer could be vicariously liable for Cooper’s torts committed against Bromfield.

Employers’ Duty in Light of the Seventh Circuit Court Ruling

Anicich is instructive. Employers that fail to act to stop an employee’s abuse of supervisory authority could be held liable for even the most extreme and gruesome intentional tortious and criminal conduct.

As such, employers must protect their businesses, including the following minimum steps:

  • Understand the risks associated with subcontracting and joint employer relationships, including supervision and control;
  • Implement and train employees on anti-discrimination, harassment, and sexual harassment policies, including a published complaint/reporting procedure, and prohibiting retaliation;
  • Take seriously and investigate all reports and complaints – no matter how minor, and even for repeat complainants;
  • Remediate any issues – including stripping supervisory authority, mandating training, and transferring/terminating employees;
  • Prohibit and protect those involved from, retaliation;
  • Respect and comply with collective bargaining rights – and get the union’s buy-in when necessary; and
  • Seek the advice of and guidance from experienced employment counsel when issues arise to ensure legal compliance and implementation of best practices to mitigate exposure.

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

Contributed by Allison Sues, April 7, 2017

On April 4, 2017, the United States Court of Appeals for the Seventh Circuit, sitting en banc, held that discrimination based on sexual orientation is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964. The seventh circuit decision is significant as the first of its kind. The United States Supreme Court has never ruled whether Title VII prohibits discrimination based on sexual orientation, and the seventh circuit, as well as the other United States Circuit Courts of Appeals had previously established a long line of precedent holding that claims alleging sexual orientation discrimination fail to state a claim under Title VII.

16306823 - 3d illustration of scales of justice and gavel on orange background

llustration of scales of justice and gavel on orange background

In Hively v. Ivy Tech Community College of Indiana, Kimberly Hively, a lesbian, worked as a part-time adjunct professor. She believed that Ivy Tech discriminated against her because of her sexual orientation when they denied her applications for full-time positions and later failed to renew her part-time teaching contract. Hively filed a Title VII lawsuit alleging sexual orientation discrimination, and the district court dismissed the case for failure to state a claim. The seventh circuit originally heard Hively’s appeal and a panel of three judges affirmed the district court’s decision, holding that it was bound by prior precedent. A majority of judges sitting on the seventh circuit voted to rehear the case en banc, enabling the court to overrule its prior decisions.

In reaching its holding that Title VII’s proscription against sex discrimination includes mistreatment based on sexual orientation, the majority noted that Title VII cases already preclude discrimination based on associating with someone of a protected class. The majority cited an eleventh circuit case holding that discriminating against an employee because of his interracial marriage is a form of race discrimination under Title VII as an example. The majority also reasoned that Hively alleged discrimination based on her sex because she claimed that Ivy Tech would not have denied her promotions or terminated her employment if she were a man in a romantic relationship with a woman. The majority equated discrimination based on sexual orientation to discrimination based on gender non-conformity, which the Supreme Court had previously ruled was a type of sex discrimination. Specifically, in Price Waterhouse v. Hopkins, the Supreme Court held that gender stereotyping, such as discriminating against a woman because she is perceived as too manly, is prohibited under Title VII, and in Oncale v. Sundowner Offshore Services, Inc., the Court held that same-sex harassment is prohibited under Title VII. Judge Posner’s concurring opinion added that changing societal norms justify updated interpretations of federal law. The dissent criticized the majority for overstepping the role of the judiciary, arguing that any change in the meaning of sex discrimination needed to come from Congress.

Ivy Tech has indicated that it will not appeal the decision to the Supreme Court and instead plans to defend the case on its merits following the remand to the trial court. Therefore, Hively will be the law of Illinois, Indiana, and Wisconsin until a different sexual orientation discrimination case makes it way to the Supreme Court – an event likely to happen now that there is clear division between the circuit courts on this issue.

Employers in Illinois and Wisconsin should already maintain policies prohibiting discrimination based on sexual orientation because Illinois and Wisconsin state law prohibit this type of discrimination. Nevertheless, all employers, especially private employers in Indiana who are not currently bound by a state sexual orientation non-discrimination law, should ensure that all employee handbooks, non-discrimination policies, and job application forms explicitly state that the company will not discriminate based on sexual orientation, and should train management and human resources personnel on the same. Following the reasoning of Hively, employers should be cautious to guard against discrimination or harassment based not only on sexual orientation, but also sexual identity.

Help Wanted: ‘Seeking Fun Dude I Would Want To Have A Beer With’ And Other Things You Shouldn’t Advertise

Contributed by Noah A. Frank

The New Year is here!  Economic signs are trending up, and indicate that hiring will be picking up in 2016.  Because federal and state employment laws prohibit discriminatory job postings, and the administrative agencies are cracking down on both unintentional and intentional discrimination, care must be used to avoid drawing the attention of the government and other opportunist inquiries by simple “help wanted” posts.

What’s wrong with the ‘cool dude’ request?

It implies that the preferred candidate is: male, younger, a drinker, and has free time.  This discriminates against, at bare minimum, females (Title VII); older workers (Age Discrimination in Employment Act); recovering addicts (Americans with Disabilities Act); certain religions (also Title VII); and perhaps marital/family status (many state laws).  It could also imply quid pro quo sex discrimination – “if you spend time with me, you will get this job.”  All that from a fairly innocuous statement?  Yup.

EEOC guidance provides that it is illegal for an employer to publish a job advertisement that shows a preference for or discourages someone from applying for a job because of his or her race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability, or genetic information.  Federal law also protects veteran status, arrest records, and use of credit/background checks.

State and local laws also protect these classes and add additional protected classes – such as marital status, number of children/dependents, medical history, ancestry, citizenship status, and even unfavorable discharge from the military.

Can I Never State a Preference?

It depends.  Some employment laws provide very limited exceptions for bona fide occupational qualifications.  These include the disability-related “direct threat” and the age-related need for a younger person (e.g., hiring an actor to play a child).  These limited exceptions rarely apply, and the employer has a significant burden to prove them.

On the other side, in certain narrow circumstances, laws permit advertising and/or intentionally recruiting traditionally marginalized protected classes.  This would include preferring to hire military veterans or qualified individuals with disabilities over other candidates.

What Can I Advertise?

Now Hiring SignGenerally, employers should advertise the essential functions of the job, as well as the knowledge, skills, and abilities a successful employee must possess.  For example, advertise that a “relevant bachelor’s degree from accredited college is required” (which indicates basic knowledge), but not “recent college graduate” (which implies younger candidates are sought).  Well drafted and accurate written job descriptions containing these requirements are given substantial weight by employment administrative agencies, especially when they exist prior to the beginning of the employment relationship.

Hopefully, 2016 brings cheer, prosperity, and increased hiring – without the headaches associated with the increasingly regulated employment atmosphere.

McDonnell Douglas Analysis Takes Another Blow: Employment Discrimination Cases Should Be Assessed from a Straightforward, Non-Shifting Perspective, Seventh Circuit Says

Contributed by Jamie Kauther

The Seventh Circuit recently took another shot at the increasingly rebuked McDonnell Douglas framework for determining employment discrimination claims. Seasoned employment attorneys can recite the McDonnell Douglas burden-shifting analysis in their sleep; in fact, it’s likely been the topic of some sleep-talking rants for some. Under the analysis, established by the U.S. Supreme Court in 1973, if a plaintiff lacks “direct” or “smoking gun” evidence of discrimination, which they usually do, their claim may still survive if they show that (1) they are a member of a protected class; (2) they were meeting 8519134_sthe employer’s legitimate expectations; (3) they suffered an adverse employment action; and (4) other similarly situated individuals not in their protected class were treated better. Then the burden shifts to the employer to demonstrate a legitimate reason for the alleged discriminatory action. Once the employer meets that burden of production, it reverts back to the employee to show the employer’s reason is really a pretext for discrimination. Head spinning yet? The Seventh Circuit, since 2012, has criticized the analysis as burdensome and unjustified.

The first criticism came in 2012 in the 7th Circuit’s Coleman v. Donahoe, 667 F. Supp.2d 835 (7th Cir. 2012) decision. The court held that the district court too rigidly applied McDonnell Douglas’s “similarly situated” requirement and should have used a more flexible standard instead, reversing the lower court’s decision for the employer. Specifically, Judge Wood in her concurrence wrote, “Perhaps McDonnell Douglas was necessary nearly 40 years ago….this case well illustrates, the various tests that we insist lawyers use have lost their utility.” She suggested that employment litigation be dealt with like tort litigation, through a straightforward approach. This straightforward approach again was championed on October 26, 2015 in the Hooper v. Proctor Health Care Inc., No. 14-2344 (7th Cir. 2015) decision. In Hooper, the court recognized its recent questioning of the “continued utility of the direct and indirect methods of proof in analyzing discrimination claims” but still utilized it. However, the court reiterated what it stated in Coleman, that  a court’s main inquiry should be “whether a reasonable jury could find prohibited discrimination.”

The clear take away is that the federal judiciary is looking beyond the framework of McDonnell Douglas and defense attorneys and employers should too. Since the analysis is still utilized, its requirements should not be neglected, but a defense to an employment discrimination claim also should not  solely rest upon the McDonnell Douglas framework.  Employers also should prepare a defense that takes into consideration the issues of the case and answers the question: “Could a reasonable person find discrimination here?” in the negative.