Tag Archives: Discrimination

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.

Tattoos, Facial Piercings, Ear Gauges? What’s an Employer to Do?

Contributed by Suzanne Newcomb

In the past, dress codes were straightforward. Depending on the nature of the business, they required a “neat, clean uniform” or perhaps “professional attire” and banned tube tops and flip flops. But as visible body art becomes more mainstream, many employers find themselves struggling to decide whether and where to draw the lines when drafting a personal appearance policy that works for their business.

As a starting point, body art itself is not a legally protected characteristic so bans are generally permissible. However, employers should be mindful that some tattoos, piercings, and other body adornments could have religious or cultural roots.  Accordingly, employers must ensure their policies do not adversely impact a particular ethnic or religious group and should take seriously requests to accommodate religious beliefs.

Back in 2004 a federal appeals court dismissed claims brought by a member of the Church of Body Modification finding that accommodating her multiple facial piercings imposed an undue hardship because it could adversely affect the employer’s public image. Since then, district courts have found that a restaurant employee who claimed covering his tattoo amounted to sacrilege; an employee who refused to remove her allegedly religious nose ring; and a Rastafarian who was moved to a non-customer contact position after refusing to cut his hair, all presented potentially viable claims warranting jury trials.

It is tough to say whether the tide is turning. Nevertheless, it is an issue many employers deal with on a regular basis.

Best practices for drafting an effective and workable personal appearance policy:

  1. Really think about what you will tolerate and why. Will you hire an employee with a visible tattoo? What if the tattoo is on her face? Might a total ban exclude applicants who would be a great asset for your business? Is there an alternative to a total ban that makes more sense? What about ear gauges and tunnels?
  2. Be prepared to justify the reasoning behind any bans or limits you decide are best for your business. Is the policy rooted in concern for the company’s public image? Fear of customer reaction? Safety or sanitation concerns?
  3. Consider whether the policy might look different for different segments of your workforce. One size fits all might not make the most sense here.
  4. Most importantly, as the cases referenced above demonstrate, employers must take claims for accommodation of religious beliefs seriously and engage in an interactive process to determine whether a workable accommodation exists if an employee or applicant claims conforming to the policy would infringe upon his religious beliefs.

General Contractor Held Liable for Hostile Work Environment Against Subcontractor’s Employee

Contributed by Noah A. Frank

Title VII prohibits employers from discriminating against any individual with respect to compensation, terms, conditions, or privileges of employment, because of that individual’s race, color, religion, sex, or national origin.  Other state and Federal laws prohibit discrimination based on age, disability, veteran status, and other characteristics.

Recently, the Sixth Circuit Court of Appeals held that a general contractor could be liable for a hostile work environment directed towards its subcontractor’s employee under a joint employer theory.  EEOC v. Skanska USA Building, Inc., No. 12-5967 (6th Cir. Dec. 10, 2013). The court found the general contractor supervised and controlled its subcontractor’s employees’ daily activities, directed their performance, determined their hours and daily assignments, assigned their supervisors, handled complaints, held meetings regarding disagreements, and did not consult the subcontractor’s owners regarding its employees’ complaints.  In essence, the court found that the subcontractor generally did “nothing” with respect to his employees and was a “nonentity.”  The court noted that the subcontractor’s African-American employees were allegedly called a variety of hostile names and epithets including the “n-word,” and were subjected to graphic depictions, including a picture in the port-a-potty of a Caucasian person shooting an African-American person.  The offenders included the general contractor’s employees, other subcontractors, and third-parties.  The victims allegedly reported the conduct to the general contractor, which did nothing to resolve their complaints, and eventually directed the subcontractor to fire them as a “poor fit.”  The court held that there was enough evidence to support a determination that the general contractor jointly employed the subcontractor’s employees, and therefore could be liable under Title VII.

While this case is an example of an extreme hostile work environment, its impact is directly applicable to all employers, and shows a changing tide in EEOC practice and discrimination jurisprudence.  Under Title VII, employers are responsible for protecting their workers from other workers, customers, and third-party vendors.  Under the joint employer theory, it is conceivable that a court could find an innocent general contractor or borrowing employer responsible for discriminatory conduct and hostile comments made towards another at their workplace.  Further, while this case addresses a construction general contractor’s responsibilities, it is likely that the EEOC and state agencies would attempt to extend this argument to borrowing employers (including those using temporary staffing agencies) and others using subcontractors.

Practice pointer for best practices:

Employers should ensure that subcontractors and independent contractors have, maintain, and enforce EEO policies, including anti-harassment and anti-retaliation policies. These policies should be incorporated by reference into any contract for services.  In light of the recent decision, employers should ensure that they not only have written policies and procedures in place to handle discrimination, harassment and retaliation issues, but must also carefully train all employees, supervisors and managers on the need to better identify, prevent and remediate such issues.

Retaliation Claims Continue to Rise… and Business Marches On

Contributed by Noah A. Frank

While the total number of charges before the EEOC increased by 18,732 for the 15 year period 1997 to 2012, the total number of retaliation charges has increased at a faster rate, by 19,638.  In fact, in 1997, retaliation accounted for 22.6% of charges, and in 2012 retaliation accounted for 38.1% of charges.  As claimants become more sophisticated, they will continue to assert retaliation as one of their bases of discrimination.

Recently, in Benes v. A. B. Data, Ltd., Case No. 13-1166, the Seventh Circuit granted a victory to employer A.B. Data for terminating employee Michael Benes for acting out during an EEOC-sponsored mediation.  

Benes had been employed by A. B. Data for four months prior to claiming sex discrimination.  After receiving an offer that he deemed too low during the mediation, he entered his employer’s representative’s separate mediation room, and declared: “You can take your proposal and shove it up your [expletive omitted] and fire me and I’ll see you in court.”  With its representatives shaken, A. B. Data accepted Benes’s proposal and terminated him within an hour. 

The court found that there was no retaliation for terminating the employee where the employer would not have tolerated such conduct had it occurred at work.  The court held that Title VII (and instigating proceedings under it) does not create a privilege for any party to misbehave in mediation or court; The Title VII anti-retaliation provisions forbid only that conduct which would dissuade a reasonable worker from making or supporting a charge of discrimination.

Lessons Learned: Even though the Seventh Circuit ultimately agreed with A. B. Data’s decision to terminate Benes, three years of litigation passed prior to arriving at this stage.  While an employee who reported discrimination internally or filed a claim with an agency does not have an unqualified immunity to misbehave, the situation should be handled carefully.  Consider speaking with counsel prior to effectuating discipline, as it is becoming more and more likely that the employee will tack retaliation onto any charge.

Want to use a Last Chance Agreement? Careful, it could be used against you.

Contributed by Michael Wong

While Last Chance Agreements (LCAs) have grown in popularity as a way to protect an employer’s decision to terminate an employee, the Central District of Illinois’s decision in EEOC v. Cognis has created a concern for employers that use LCAs.

In EEOC v. Cognis, the court issued a bold statement by granting the EEOC summary judgment and finding an employer, Cognis, had violated Title VII by terminating an employee after he revoked his promise to abide by an LCA. 

In the case, the employee was offered an LCA after his poor performance resulted in verbal warnings, counseling and a suspension. The LCA stated that “in lieu of termination,” the employee agreed to accept the terms of the LCA, including a release and waiver of any claims under state and federal employment law in relation to his right to employment with Cognis or his status under the LCA.  The employee understood that if he did not agree with all of the LCA terms, including the release and waiver, he would be immediately terminated.

After signing the LCA, the employee questioned whether he had waived his civil rights, including his ability to file an EEOC charge of discrimination.  Cognis’ response was simply that it would not alter the LCA.  Cognis did not explain if, or how, the LCA impacted the employee’s civil rights or ability to file a charge of discrimination. After learning that the LCA would not be modified, the employee revoked the LCA indicating that he refused to give up his civil rights.  Cognis then terminated the employee because he was unwilling to remain bound by the terms of the LCA.

In granting summary judgment against the employer, the court held that the employee’s revocation of the LCA was a protected activity and the employer’s decision to terminate his employment after the revocation (even though the employer was simply reverting to its prior decision to terminate the employee) constituted an adverse employment action, because it “might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” While the court refused to apply the same rational to the EEOC’s class claims, it specifically stated that it “believes that a jury could reasonably conclude that Cognis feared protected activity from poorly performing employees if they were terminated, and therefore offered LCAs which required the poorly performing employees to give up their civil rights as their sole alternative to termination.” 

Employers should carefully review their last chance agreements to determine whether they could fall into the same pitfall as Cognis. Revising the language of a last chance agreement to clarify an employee’s rights may provide some protection from the Central District’s decision. Regardless, employers should now be more careful when terminating an employee who refuses to sign or wants to revoke his or her promise to abide by a last chance agreement.

EEOC Approves Its Highly Anticipated Strategic Enforcement Plan – Adds Equal Pay to List of Nationwide Priorities

Contributed by Samantha Esmond

On September 10, 2012, we blogged about the EEOC’s proposed Strategic Enforcement Plan (SEP), which had been released for public comment.

On December 18, 2012, the EEOC announced that it officially approved its highly anticipated SEP for 2013-2016 with bipartisan support. The EEOC’s press release can be accessed at: http://www.eeoc.gov/eeoc/newsroom/release/12-18-12a.cfm

According to the EEOC, the purpose of the SEP is “to focus and coordinate the EEOC’s programs to have sustainable impact in reducing and deterring discriminatory practices in the workplace.” Notably, the final version of the SEP has added “equal pay enforcement” to its list of national priorities.

The approved SEP identifies and highlights the following areas as national priorities:

  1. Eliminating barriers in recruitment and hiring;
  2. Protecting immigrant, migrant, and other vulnerable workers;
  3. Addressing emerging and developing employment discrimination issues (such as certain ADA issues, including coverage, reasonable accommodation, qualification standards, undue hardship, and direct threat, accommodating pregnancy-related limitations under the ADAAA and the Pregnancy Discrimination Act, and coverage of lesbian, gay, bisexual, and transgender individuals under Title VII’s sex discrimination provisions);
  4. Enforcing equal pay laws;
  5. Preserving access to the legal system; and
  6. Preventing harassment through systematic enforcement and outreach.

In addition to the above nationwide priorities, the SEP directs the 15 EEOC district offices to develop their own District Complement Plans by March 29, 2013, identifying, among other things, their own local enforcement priorities and describing how the district office will implement the SEP nationwide priorities.

It is also anticipated that the EEOC will take a more aggressive approach and give priority to systematic cases – those pattern or practice, policy, and/or class cases – where the alleged discrimination has a broad impact on a particular industry, occupation, business, or geographic area. While systematic cases generally involve a class of individuals, they may also originate from a single charging party alleging that an employment policy is discriminatory.

The approval of the SEP provides employers with insight into the types of issues the EEOC will likely target in the coming years. With the intensified investigative and enforcement efforts of the EEOC, employers will continue to face many challenges when responding to and defending against charges of discrimination.

Pretty Woman, Walk on Down the Street [and out of the workplace] – Firing Attractive Female Employee Due to Wife’s Demand NOT Sex Discrimination

Contributed by Terry Fox

The media, particularly the Internet, is abuzz with reports related to the Iowa Supreme Court’s decision that loosely “makes it ok” to fire a pretty woman. Nelson v. James H. Knight, DDS, P.C., 11-1857 (Iowa Supreme Court 12/21/12). At first glance, the decision screams sex discrimination to most people. There was no dispute that the attractive female was an above average employee. On further analysis, however, the decision is in line with established case law and the underpinnings of discrimination law.

Dentist James Knight employed Melissa Nelson as a dental hygienist when she was just 20 years old. She worked for Dr. Knight along with other exclusively female hygienists and office help. After ten and a half years, Dr. Knight fired Ms. Nelson, who by that time was married with children. The dentist and his assistant were close, and the relationship grew in the ten years’ time she was employed, with the two exchanging text messages outside the office on professional and personal topics. However, when Dr. Knight took his children to Colorado to ski one winter, Mrs. Knight discovered the text messages between her husband and Ms. Nelson. When Dr. Knight returned from the ski trip, Mrs. Knight demanded that he fire Ms. Nelson “because ‘she was a threat to our marriage.’”

Dr. Knight had previously commented that Ms. Nelson wore too tight clothing, that she should wear a lab coat so as not to distract him. Mrs. Knight found Nelson flirtatious towards her husband. When Nelson complained of the lack of frequent intimacy with her husband, Dr. Knight responded by observing it was “like having a Lamborghini in the garage but not driving it”. Nelson regarded Dr. Knight as a friend and a father figure. There was no sexual relationship between them, but Dr. Knight was concerned there would be in the future.

The trial court granted Dr. Knight summary judgment when the fired employee sued, on the basis that the termination was due to a threat to his marriage, not because of the employee’s sex. The Iowa Supreme Court agreed. That court pointed to decisions from around the country allowing an employer to fire an employee where a consensual relationship in the workplace lead to jealousy once the relationship ended, as well as decisions allowing an employer to treat an employee better because of the favorite’s sexual relationship with the boss. Noting that neither Title VII or the Iowa Civil Rights Act are “general fairness laws” precluding an employer from treating its employees unfairly, the Court rejected the employee’s argument that liability should be imposed where an employee is fired to avoid sexual harassment by the boss.

It is clear that had Dr. Knight fired all the females in his office, it would have been a different case. He replaced Nelson with another female, so sex discrimination appeared not to be the cause. The termination came after Knight and his wife consulted their pastor and the pastor attended the termination meeting. Knight also met with Nelson’s husband on the evening of the termination, again with the pastor present.

A broad view of the Nelson decision is that, had it turned out differently, the floodgates of personal appearance and body-type litigation would have been opened. Small employers are particularly vulnerable to that type of litigation, due to more modest resources and because one person usually makes the sole hiring/firing determination.