Employment Discrimination Report : New York Attorneys & Lawyers for Labor Discrimination Defense : Fox Rothschild LLP

The EEOC just announced that it has sued a Georgia staffing and professional recruitment company for retaliating against an employee who had filed an unspecified EEOC discrimination charge. Noteworthy is that the complaint in this case is silent as to what the employee felt was the basis for the discrimination charge, for none is asserted by the EEOC in its complaint.   

The employee was assigned to one particular client of the staffing company as a quality auditor, and was suspended for a week for missing one day of work. He filed a discrimination charge with the EEOC, and was never given any further job assignments or opportunities.  The staffing company’s on-site supervisor was the person who suspended the employee and to whom the employee allegedly said that his suspension “was not fair” and that “he was going to the EEOC.”  

Since filing an EEOC charge requires an employee to check a box indicating the type of discrimination alleged, i.e., race, gender, age, etc.,  presumably the employee in this case did indeed check a box, therefore the fact that the EEOC’s lawsuit does not set forth this basis of discrimination may be significant.  

The EEOC stated that: “Eliminating policies and practices that discourage or prohibit individuals from exercising their rights under employment discrimination statutes, or that impede the EEOC's investigative or enforcement efforts, is one of six national priorities identified by the EEOC's Strategic Enforcement Plan (emphasis added).”

We have always cautioned employers that retaliation for filing a charge of discrimination is far easier to prove than the underlying alleged discrimination, and can be demonstrated even if the underlying basis for the discrimination charge fails.  Given that retaliation is an EEOC priority, perhaps this is a test case by the EEOC to see how low the bar is when no underlying basis for discrimination is set forth or when an incredibly weak case of discrimination is alleged.  

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A UK employer provided a negative employment reference because an employee who had been fired had filed a discrimination claim.  Was this retaliation, or as it is known in the UK, “victimization,” under The Equality Act 2010? 

No, said the UK courts – the law does not cover post-employment acts of the employer, even acts of victimisation. This is contrary to US anti-discrimination laws.  

The employee has been given leave to further appeal the case,  since it appears that relevant precedent is scarce.  The blog Disability Discrimination Newsletter from a UK law firm stated today that “The general consensus among practitioners is that post-employment victimisation is important and needs protection. It appears that its omission from the Act may simply be a drafting error as both national and EU case law provides for this protection. Surely it was not Parliament’s intention to exclude this protection?”

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This Utah company must be the poster child for the “worst practices” award: a company supervisor repeatedly called a class of African-American employees racial slurs such as the “N-word;” the company had an anti-harassment policy which directed employees to report harassment to their harassing supervisor; and the company fired one of the employees for complaining.

Can you pick out all of the acts which violated Title VII?  They cost the company $230,000 in a settlement just reached with the EEOC.

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"Any employment discrimination problem -- sexual harassment or anything else -- can always be made worse and more injurious to the conduct of the employer's business. Retaliation is guaranteed to do that. It never makes sense, it is never good for business, and it is always illegal."  This is from an EEOC lawyer quoted in our blog of September 11, 2012.    

And retaliation comprises about almost 40% (and rising) of all EEOC charges, the most frequently filed charge with the EEOC.

Two new government announcements will preface and underscore the need for this tutorial.   

A New Retaliation Lawsuit And Settlement

Yesterday, the EEOC announced that it has sued an Alabama company contending that it retaliated against one of its managers for firing an employee who had sexually harassed and assaulted a female co-worker.  The suit alleges that the employer verbally abused him, re-hired the harasser, and terminated the manager when he declared that he would "tell the truth" about the matter. 

And the Justice Department just settled a case against a city in which it was alleged that the city discriminated against an employee by subjecting her to sexual harassment (unwanted sexual advances by a co-worker) and then firing her when she complained and filed an EEOC charge. The complaint alleges that the city fired her for making internal complaints and filing a sex discrimination charge with the EEOC.

The cases keep coming and the filing of retaliation charges will continue at an alarming rate.

What Is Retaliation?

Retaliation is far easier to prove (and difficult to defend against) than the underlying discrimination, and even if the underlying claim of discrimination has no merit, retaliation can still be claimed and proved.  All that must be shown to make out a claim for retaliation is:  (1) that plaintiff was engaged in a “statutorily protected activity” by opposing an employment practice that she has a good faith, reasonable basis to believe is unlawful; (2)  an “adverse employment action” by the employer, and (3) some causal connection between the two.  

An employee who alleges or files a discrimination claim or complaint is protected from retaliation – in our parlance, the employee becomes insulated or “cocooned,” because it is extremely difficult or even next to impossible to take any adverse employment action at that point for fear of incurring a retaliation charge.

Pretty much anything you can do can be claimed to be an “adverse act” against an employee who has filed a complaint of discrimination, and therefore retaliatory (and employees have, indeed, claimed just about everything).  Termination, of course, is an adverse act, but adverse acts can also be demotion, transfer, ignoring or berating an employee, taking away work or responsibility, or giving too much work, and even refusing to re-hire.    

A claim of sexual harassment by a supervisor is particularly susceptible to a follow-up retaliation claim since virtually any adverse action against the employee can be viewed as retaliation.

Preventing Retaliation Claims

To prevent retaliation claims, you first must take all steps to prevent any discrimination claims. You know the drill – zero tolerance policies, up-to-date employee manuals, training (and more training) for all managers and employees, and open communications with employees especially about reporting discrimination.   

As to what to do after an employee has filed a charge or claim of discrimination, we summed it up on September 20, 2011.  An employer’s best practice is to take a “business as usual” approach and act as if no complaint had been filed by treating the employee like any other employee; engaging in open, non-intimidating communication with the employee to find common ground while the investigation or litigation is pending; and, of course, documenting all decisions and pre and post-complaint performance issues that might result in discipline. 

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The San Francisco Business Times reported yesterday that SendGrid, an email technology company, fired a female employee who complained on Twitter of sexual jokes made by a male employee of a San Francisco company at a recent conference.

Adria Richards, a “developer evangelist” at SendGrid, Twittered: “Not cool. Jokes about forking repo's in a sexual way and ‘big’ dongles.”

SendGrid's CEO was not amused, and wrote two blog posts in which he stated that he had fired Richards because she showed bad judgment by using Twitter for “shaming,” and in doing so “put our business in danger.”

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An African-American employee in NYC who was subjected to daily physical and verbal abuse for 1½ years just settled his case for $190,000, the EEOC announced.

The foreman of Day & Zimmerman NPS, a leading supplier to the power industry, often tripped the employee and once kicked him.  He told racist stories and jokes where African-Americans were referred to as “stupid” and “incompetent,” said that an African-American in the news “deserved to be shot,” and said that candidate Obama “would be shot before the country allowed a black president.”  

The EEOC said that "[the employee] complained to management many times for more than a year regarding the harassment, and that when Day & Zimmerman finally arranged a meeting in response, it disciplined [him] less than an hour later, and then fired him that same day, citing a false safety violation as a reason.”  

Readers:  We cite these outrageious cases because some of you are so appalled that you think that these cases are made up. 

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We warned last May about using “last-chance agreements.”  We highlighted the case of EEOC v. Cognis Corp..  In that case, plaintiff was a longtime employee who, as a condition of continued employment, was required by the employer to sign a “last-chance” employment agreement, in which he waived his right to file any discrimination charge with the EEOC, even charges based upon acts which had not yet occurred.  Plaintiff refused to sign away these statutory rights, and the EEOC alleged that he was fired as a result.

The Court awarded the EEOC a rare summary judgment after finding that the firing constituted unlawful retaliation.  The only issue remaining was damages.

The EEOC today just announced that it has, in fact, settled that case for $500,000, and the Court entered a consent decree.  

The EEOC Chicago District Director stated that the employer "presented the victims in this case with a terrible, illegal choice: lose your job or lose your civil rights.  Under the law, no worker has to make that kind of choice.  Employers would be better served by working to ensure that their employees are free from discrimination, rather than threatening their workers with termination in an effort to make sure that employees don't complain."

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"Any employment discrimination problem -- sexual harassment or anything else -- can always be made worse and more injurious to the conduct of the employer's business. Retaliation is guaranteed to do that. It never makes sense, it is never good for business, and it is always illegal."  This is from an EEOC lawyer quoted in our blog of September 11, 2012.    

With retaliation the most frequently filed charge with the EEOC (the EEOC reports that last year 38.1 percent of private sector bias charges  were for retaliation),  how much do you know about it?  Do you know that its different than other kinds of employment discrimination? 

1.         Do you know what retaliation is?  

As our readers are well aware, an employer is not permitted to retaliate against an employee who has filed a claim or complaint of discrimination.  However, retaliation is far easier to prove than the underlying discrimination and even if the underlying claim of discrimination has no merit, retaliation can still be proved. All that must be shown to make out a claim for retaliation is:  (1) that plaintiff was engaged in a “statutorily protected activity” by opposing an employment practice that she has a good faith, reasonable basis to believe is unlawful; (2)  an “adverse employment action” by the employer, and (3) some causal connection between the two.  

2.         Do you know who is protected from retaliation?

An employee who alleges or files a discrimination claim or complaint is protected from retaliation. However, we noted on January 25, 2011 that the United States Supreme Court expanded the field and unanimously held that the anti-retaliation provision of Title VII protects employees from retaliatory termination where that employee was the fiancé of another employee who exercised her rights under the statute to file a discrimination complaint.  This has been called “associational discrimination.”

Lower appeals courts which have been faced with claims of associational discrimination have so far held that close or intimate family members or friends of employees who are also employees are considered closely enough associated to warrant a so-called “third party claim” under Title VII.  These associations may be parent and child, husband and wife, engaged fiancés, and even two people dating.  

3.         Do you know that claims can be filed after employment ends?

Usually a claim for retaliation is made by a current employee, since it seems obvious that an employer does not have the ability to retaliate against someone who is no longer an employee.  Not so: retaliation can occur after the termination of employment.  As we noted on May 23, 2011, courts have held that even though an “adverse employment action,” by its very wording, seems to apply only to a current employee, nonetheless in light of the broad purpose of the anti-discrimination laws, which are to be “liberally construed,” it is not limited to current employees. The anti-discrimination laws also protect former employees from further adverse actions by the former employer. 

For example, retaliation may be found in a case where an employer refused to re-hire a former employee who had two years earlier resigned after claiming sexual harassment.    

4.         Do you know what acts of yours may constitute retaliation?

Pretty much anything you can do can be claimed to be an “adverse act” against an employee who filed a complaint of discrimination, and therefore retaliatory (and employees have, indeed, claimed just about everything).  Termination, of course, is an adverse act, but adverse acts can also be demotion, transfer, ignoring or berating an employee, taking away work or responsibility, or giving too much work, and even refusing to re-hire.   

5.         Do you know how to avoid a retaliation charge?

We summed it up on September 20, 2011.  An employer’s best practice in a situation where a discrimination claim has been filed is to take a “business as usual” approach and act as if no complaint had been filed by treating the employee like any other employee; engaging in open, non-intimidating communication with the employee to find common ground while the investigation or litigation is pending; and, of course, documenting all decisions and pre and post-complaint performance issues that might result in discipline. 

Finally, anti-discrimination training of managers and employees is key.

Conclusion

In this uncertain economy, insecure employees often try to game the system by filing weak or meritless charges of discrimination, knowing that employers are likely to avoid doing anything that might bring on a retaliation claim. The result is that the insecure employee is able to delay or avoid altogether  appropriate disciplinary measures or termination. We believe that this likely accounts for the explosive growth of retaliation claims.

Employers must stick to “best practices” – being sued for retaliation may be unavoidable, but avoiding ultimate liability should be the goal.    

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In our practice we have received a number of inquiries over the years from employers whose departing employees executed severance agreements and then turned around and filed discrimination charges against them with the EEOC, or sued them.  Does this breach the severance agreement?  Can an employee who receives severance file such a charge? Can the employer stop paying severance?

The answer can be found in a newly settled EEOC lawsuit against Trinity Health Corporation of Michigan. The EEOC alleged that Trinity had a policy of denying or delaying severance payments to these employees.   It is clearly unlawful for an employer to punish or retaliate against employees who exercise their right under Title VII to file a charge of discrimination with the EEOC, and Trinity settled the case by agreeing to change its policy and also pay $25,000 to an employee whose severance pay was withheld after she filed an EEOC charge.  

An EEOC attorney answered our initial inquiry succinctly: "even if employees sign severance agreements with their employer, they are still entitled to file a discrimination charge with the EEOC."

Of course -- and this is a big "of course" -- if the severance agreement is properly drafted and provides consideration for the employee's agreement to release the employer from all claims, then the result could be different -- the employer would have a defense to the EEOC charge based upon the release.   

But could the employer also cease making severance payments based upon a breach of the severance agreement by the employee?  

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The short answer is “no,” because the employee’s prima facie case of retaliation can be rebutted by showing a legitimate, non-retaliatory reason for the termination.  

As our readers are well aware, retaliation is far easier to prove than any underlying discrimination and that even if the underlying claim of discrimination has no merit, retaliation can still be proved. All that must be shown to make out a claim for retaliation is (1) the employee’s filing of a claim or complaint of discrimination, (2) an “adverse employment action” by the employer, and (3) some causal link between the two.  

A decision coming from a federal court in North Carolina illustrates nicely that in spite of a prima facie showing, an employer can still show that the termination was based upon legitimate, non-retaliatory reasons.  In that case, an African American county transportation planner filed a charge of race discrimination with the EEOC in 2010. He also sent an 81-page letter to the County Manager in which he made comments which caused alarm that he could become violent.  For example, in the letter he said that “The tidal wave is impending … I shall deal with this matter.”

Plaintiff was placed on administrative leave and directed to undergo a fitness for duty evaluation, but was ultimately fired when he cancelled the appointment, did not reschedule it, failed to respond to the County's attempts to contact him by telephone, failed attend a scheduled evaluation and failed to maintain his availability during administrative leave. 

The County did not dispute that plaintiff established a prima facie case of retaliation since he made a complaint about discrimination in his letter and EEOC charge, his firing was an adverse action, and it took place in close temporal proximity to the letter and EEOC charge. However, the County contended that he was fired for legitimate, non-retaliatory reasons – i.e.,  because he cancelled his fitness for duty evaluation, did not reschedule it, and did not remain available as instructed while on administrative leave.

The Court agreed that plaintiff indeed made out a prima facie case of retaliation, and that under the McDonnell Douglas test, the burden then shifted to the County to articulate a legitimate, non-retaliatory reason for the firing, which the Court held that the County did.  Under McDonnell Douglas, plaintiff then was required to show that the County’s articulated reason was a pretext, which plaintiff failed to do.   

Notwithstanding the availability of defenses to a retaliation charge, we still strongly advise an employer to take a “business as usual” approach to a charging or complaining employee, to treat that employee like any other employee, to engage in open, non-intimidating communication with the employee to find common ground while the investigation or litigation is pending, and, of course, to document all decisions and pre and post-complaint performance issues that might result in discipline.

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According to Andersonvalleypost.com, the EEOC has just settled for $95,000 a national origin discrimination and retaliation claim brought in California on behalf of an employee of Egyptian descent against Sierra Pacific Industries. The allegation was that after 9/11, the employee was called “Osama,” “f---ing Arabian,” and “camel jockey” by co-workers, and that the company permitted this to go on after the employee complained, and eventually fired him.

The interesting thing about this matter is despite settling the lawsuit, the company vehemently denies discriminating against the employee and firing him in retaliation.  Instead, it claims that the employee was fired because he was a serial sexual harasser.  

Sounding exactly like an EEOC attorney quoted in an official press release, a company spokesman said that “Sexual harassment is something we take very seriously. We will not tolerate it in our company and will terminate employees who have harassed others.”

 

So is there a zero-tolerance company policy for sexual harassment, but not for national discrimination harassment?  No, says the company, which contends that its settlement of the case was not an admission of liability, but that it “only agreed to settle the case in order to stop spending money and to free the courts of a merit-less case.”  

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Short answer?  Yes.

We've all seen it before: an employee who has a history of performance problems, including belligerent interactions with co-workers and supervisors writing a rebuttal to a performance review that addresses these issues.  Usually, the rebuttal is a self-serving denial of any wrongdoing and an attempt to blame everyone else for the conflicts.

So, what is the normal reaction of management?  Nothing.  Let's face it, the rebuttal is not going to be sufficient to change the manager's mind about performance and I'd be willing to bet, at least half the time the full rebuttal is not even read.

A recent case reported by Bloomberg BNA, Tasciyan v. Medical Numerics, reminds employers that they must pay attention to employee comments in a performance review.  In Tasciyan, the Plaintiff had a history of abusive interactions with co-workers and supervisors.  When that was documented in her 2009 performance review, she wrote in response that she felt she had not been promoted due to the fact that she was the only female employee of the company.

Fast forward two months when she has yet another explosive outburst and is fired, she then claims she is being terminated for complaining of gender discrimination in her performance review.  In this case, there was some additional evidence presented that the supervisors asked her to remove her comments from the performance review.  However, I can certainly imagine a claim under similar facts where the employer never paid any attention to the comment in a rebuttal.  In that case, a judge or jury is not going to accept as a defense, "oops, never noticed that."

Employers should be careful to address any such complaints in a review and promptly investigate them.  This is true even if you think the employee is just saying anything to deflect blame.

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According to an EEOC complaint filed in court in Illinois yesterday, an employee subjected to hostile, abusive and lewd comments in the workplace who complained repeatedly to management was fired in retaliation.
 

There is nothing particularly noteworthy about this set of facts, except the quote from the EEOC's regional attorney in Chicago, who had a warning for employers about retaliation – the same that we often publish:  "Employers ought to learn from this case. Any employment discrimination problem -- sexual harassment or anything else -- can always be made worse and more injurious to the conduct of the employer's business. Retaliation is guaranteed to do that. It never makes sense, it is never good for business, and it is always illegal."
 

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The ADA forbids employers from requiring medical examinations unless they are job-related.  In a significant new decision, a federal appeals court yesterday has held that psychological counseling may be considered a “medical examination” under the Americans With Disabilities Act (“ADA”).

Plaintiff Is Directed To Get Counseling But Refuses

The facts of this case are important, although somewhat in dispute, which is why the appeals court sent it back for a trial. The Court recited the relevant facts as follows: Plaintiff was a good EMT ambulance driver, and after she became “romantically involved” with a co-workers, employees expressed concern about her well being and the office manager “requested” that she receive psychological counseling.

There was a later dispute between plaintiff and another co-worker, and a complaint about her screaming on the phone while driving a patient in an emergency vehicle, which led to her supervisor ordering her to attend counseling. She refused, was fired, and sued alleging that the demand that she attend counseling was in violation of the ADA, and that her firing was in retaliation for her refusal to attend counseling.

The ADA Section on Medical Examinations and The EEOC Guidance

The appeals court wrestled with whether such counseling constitutes a “medical examination” under the ADA. The relevant section of the ADA prohibits employers from “requir[ing] a medical examination” or “mak[ing] inquiries of an employee as to whether such employee is an individual with a disability . . . unless such examination or inquiry is shown to be job-related and consistent with business necessity.”

The Court found “very persuasive authority” about what this section of the ADA means from the EEOC’s "Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA)," which the Court stated “explains that ‘psychological tests that are designed to identify a mental disorder or impairment’ are ‘medical examinations,’ while ‘psychological tests that measure personality traits such as honesty, preferences, and habits” are not.’”

The Court stated that the reason behind the law as noted by the EEOC is to prevent discrimination by “precluding employers from obtaining information about ‘nonvisible disabilities, such as ... mental illness,’ and then taking adverse employment actions ‘despite [an individual’s] ability to perform the job.’”  The Court noted that the EEOC's Guidance suggests that psychological tests that are designed to identify a mental disorder or impairment are medical examinations, while psychological tests that measure personality traits are not.

Based upon the Court’s reading of the law and the EEOC Guidance, it held that because the company expressed concern that plaintiff was suffering from depression, there were issues of fact to be sent for a trial as to whether the employer intended for her to attend counseling so that she could explore the possibility of mental health impairment and receive treatment – which would be violative of the ADA.

Unfortunately, the law is the law, and although the intent is to protect employees, it has the effect sometimes of punishing good Samaritan employers -- let no good deed go unpunished!

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We thank today's Law360 Employment for reporting on three newly-filed discrimination suits, implicating issues of race, national origin, gender, age, religion, sexual orientation, and retaliation. All this in just three lawsuits. All three plaintiffs allege that they were fired based upon these protected categories.

The Library of Congress was sued in federal court in Washington, D.C. by a former management analyst who claimed that once his homosexuality became known at work he was subjected to a hostile work environment based upon his religious affiliation (he claims to be a “liberal Christian”), and because he is gay.

Barclays Capital was just sued in federal court in New York by a commodities trader who claims that she was paid less than similarly situated males, and when she complained about this she was retaliated against by being fired.

Finally, the former president of Univision Radio National Sales has sued it in federal court in New York claiming that she was harassed and then fired due to her race (she claims that her accent was called a liability) and age.

It must be stressed that these are just-filed suits and so the defendant companies have had no opportunity to yet answer or otherwise rebut these allegations.

But what we find interesting (but not surprising), and what employers must face, is that in a down economy any adverse employment action, especially termination, will likely bring the possibility of discrimination lawsuits – alleging the entire panoply of possible claims of discrimination – concocted or otherwise.

Might as well brace yourselves, but take all possible protective action by (need we repeat it) having up to date employee handbooks in place and distributed; having zero-tolerance anti-discrimination policies that are widely disseminated; training-training-training and more training of both management and employees; investigating each and every complaint of discrimination made and taking remedial action if necessary; maintaining an open dialogue with employees about workplace practices and policies. There’s a lot more that can and should be done, but space limits us here. 

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The EEOC has just announced that it has succeeded in winning a rare summary judgment motion on behalf of an employee who claimed that he was unlawfully retaliated against by his employer.

To be awarded summary judgment there must be found to be no material facts in dispute and, therefore, as a matter of law the moving party wins because there is no need to have a trial. Employers frequently obtain summary judgment since it is no easy task for an employee to make out each and every element of, lets say, a Title VII claim, i.e., all of the McDonnell Douglas elements necessary to make out a case of discrimination.

On the other hand, summary judgment in favor of a discrimination plaintiff is almost unheard of. This is because there are almost always issues of fact put forward by the employer concerning what alleged adverse action took place and why, or relating to any number of defenses that the employer may have. It is therefore of particular note that the EEOC was successful in this case and we should understand the reasons for it. And employers should take note of the EEOC’s explicit warnings.

In this case, EEOC v. Cognis Corp., plaintiff was a longtime employee who, as a condition of continued employment, was required by the employer to sign a “last-chance” employment agreement, in which he waived his right to file any discrimination charge with the EEOC, even charges based upon acts which had not yet occurred. Plaintiff refused to sign away these statutory rights, and the EEOC alleged that he was fired as a result.

In December, the court initially found that there “is no question” that the employee was fired for not signing the agreement, and gave leave to the EEOC to make a motion for summary judgment on the issue of whether the employer retaliated against plaintiff by firing him for refusing to sign the agreement. The court ultimately granted summary judgment to the EEOC on this legal issue.

The court correctly stated that “It is not often that a plaintiff moves for or is granted summary judgment on a Title VII retaliation claim,” but held, in effect, that it was not reasonably in dispute that the employer unlawfully retaliated against the plaintiff when it fired him. The only issue left is what remedy the plaintiff is entitled to.

An EEOC attorney noted in a press release issued after the EEOC’s initial victory in December, that “it is a risky and illegal proposition” for employers to “dup[e its] employees into believing their rights are waived,” which the employer was no doubt “banking on.” He warned that “the EEOC is on the lookout for cases like this where employees are most vulnerable to employer excess.”

In yesterday’s press release, after announcing the granting of summary judgment, another EEOC attorney warned further that  “Filing EEOC charges is a fundamental right of American employees, and this agency always stands ready to protect that right. This court’s opinion should cause employers to remember that seeking to dissuade employees from exercising that right is not only bad policy, it’s a violation of federal law which can give rise to very substantial liability (emphasis added).”
 

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We seldom write about discrimination law if it is not related to statutes such as Title VII, the ADEA or the ADA, for no other reason than that’s where most claims and lawsuits arise, and that’s where the cutting edge of discrimination law seems to be found. But not always.

There are anti-discrimination provisions found in other statutes, and last week the US Justice Department announced that it had filed an anti-discrimination suit against a staffing company in Jersey City, N.J. which specializes in information technology, under the Immigration and Nationality Act (“INA”). The suit alleges that the company fired its receptionist/recruiter after she opposed the company’s alleged practice of recruiting and preferring noncitizens with temporary work visas over Americans citizens and lawful permanent residents.

The relevant provision of the INA prohibits “citizenship status discrimination” and “national origin discrimination” against citizens (and certain others), and as with Title VII and other such laws, prohibits retaliation against employees who oppose a practice that is illegal under the INA, or who attempt to assert rights under that statute. The Civil Right’s Division of the Justice Department, through its Office of Special Counsel for Immigration-Related Unfair Employment Practices, is charged with enforcing these provisions of the INA

Thomas E. Perez, Assistant Attorney General for the Civil Rights Division of the Justice Department, stated that “Employers cannot punish employees who try to do the right thing and take reasonable measures to shed light on a practice they believe may be discriminatory. Employers must ensure that their practices conform to the anti-discrimination provision of the INA, and retaliation will not be tolerated.”
 

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We have written a lot about retaliation -- for good reason. It is the most frequently filed employment discrimination charge (see our blog of 9/20/11), and, more importantly, it is far easier to prove than an underlying claim of discrimination; even if the underlying claim of discrimination has no merit, there can still be a meritorious claim of retaliation. 

The three elements of retaliation are:  (1) that plaintiff was engaged in a “statutorily protected activity” by opposing an employment practice that she has a good faith, reasonable basis to believe is unlawful; (2)  an “adverse employment action” by the employer, and (3) some causal connection between the two.  

We have written before about “adverse employment actions,” and also about the concept of “causal connection” (see our blogs of 3/29/11 and 11/7/11).  A new court decision gives us the opportunity to examine the first element: what constitutes engaging in a “statutorily protected activity.”  

A federal appeals court recently was faced with a plaintiff who claimed that she was fired after she complained that because she was African American she was given less favorable work assignments than white employees.  The court repeated the first element that we mentioned above, that “A plaintiff engages in statutorily protected activity when she opposes an employment practice that she has a good faith, reasonable basis to believe is unlawful,” and then explained that a plaintiff must show a “subjective” good faith belief that the employer had engaged in unlawful employment practices, and  also that her belief was “objectively reasonable in light of the facts and record presented.”

In this case, based upon plaintiff’s testimony, the court held that plaintiff had not established that she “reasonably believed” that she was the victim of discrimination, or, put another way, that her belief (even if it was held in subjective, good faith) was “objectively reasonable.”  Plaintiff could not identify any favorable work that been assigned to white employees, and even acknowledged that white employees might also have been given less favorable work assignments.  Without any relevant knowledge, the court reasoned that plaintiff could not have reasonably believed that she was the victim of discrimination.    

See also discussion in Business Management Daily.

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The EEOC reported some time ago that it had received a record number charges of discrimination for the fiscal year ending 2011 – almost 100,000 nationwide.  The EEOC has just released a report breaking down these charges by number and percentage state by state, and by nature of charge, giving us a good picture of which charges are increasing and which are decreasing, and providing bloggers and pundits with a good platform to speculate wildly but authoritatively about the reasons.   

Lets take two states and compare them – New York and New Jersey.   

New York’s total number of filings with the EEOC increased over the last three years from 3.8% of the total number of US filings to 4.4%, while New Jersey’s filings went down from 1.8% to 1.5%.   What is the reason for this difference in trending?  I have no idea.   Could be that the relevant state agency is New Jersey is more active or employee friendly and therefore receives a greater percentage of charges within the state, or it could be just a statistical anomaly. Or it could be that New Jersey employers are better trained and utilize best practices more often, which might be accounted for by the excellent legal services provided to these employers by my colleagues across the big river.  

Lets compare the types of charges filed.  Charges of sex discrimination made up 32.4% of the filings in New York, while only 28.1% in New Jersey.  However, charges of race discrimination made up only 29.3% of the filings in New York, while in New Jersey the number was 32.5%.      

Retaliation claims in New York made up 40.5% of the charges filed, while in New Jersey, they made up only 27.9%.  This disparity is pretty wide, and unexplainable to me at this point, (Note: the EEOC explained in its report that the numbers add up to more than 100% because many people file charges based upon multiple types of discrimination).

Oh, and GINA charges were zero in both states last year.      

The state by state report makes generally boring reading, but see for yourself.     

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For the title of this blog I've taken some liberties with the original dialog from the Wizard of Oz (for the actual dialog click here).  If, when you hear these words, you find yourself wishing you could just click your heels and go home, you are not alone as that is a common reaction from my clients.

Recently, I had the opportunity to present at a seminar with Meg Errickson from Marsh & McLennan Agency LLC in New York City.  The overall topic was on reducing your Workers' Compensation costs. 

We have blogged extensively about disability issues under the ADA (2/8/12 and 3/30/11, for example).  We have not, however, spoken about workers' compensation and Family and Medical Leave Act ("FMLA") retaliation, but both statutes do prohibit employers from retaliating against an employee for claiming the benefits of the statute.

As most of you know, the ADA and FMLA can be complicated.  Throw in workers' compensation and you have a recipe for disaster.  My part of the presentation was on understanding obligations under all of these laws in order to reduce workers' compensation costs and retaliation claims.

If you would like to check out the presentation, you can view my slide show here:  http://www.slideshare.net/cstoneburner/rl1-1022709v1marsh-interplay

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If you thought that “code words and dog whistles” (see our blog of March 20, 2012) were the only remnants of employment discrimination 50 years after Title VII, listen to this. 

In Menomonie, Wisconsin, the EEOC has just filed a retaliation suit on behalf of an African-American restaurant employee who was terminated soon after he reported blatantly racist drawings posted at his work site.

The taped images included a dollar bill with a noose drawn around the neck of a blackened George Washington, drawn swastikas on the bill, along with a man drawn in a KKK hood.

The suit was just filed so we do not know all sides to this story. 

It is not often easy for management to control the baser discriminatory impulses of employees at work, but it is easier to train managers as to how to avoid retaliatory behavior.        

Read more: http://chippewa.com/news/local/discrimination-suit-lodged-against-menomonie-restaurant/article_7e36e886-7a92-11e1-89b5-001a4bcf887a.html#ixzz1qohgkXJG

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Is it just me who was disappointed in the Desperate Housewives case filed by Nicolette Sheridan?  I'm not talking about the mistrial, I'm talking about the utter lack of sensational testimony.   

When I first heard about the trial, I kept an eye out for news, sure that lots of juicy tidbits about tantrums on the set, either by Ms. Sheridan or Marc Cherry, were going to come to light. 

I hoped that one of the other female leads (if not all of them) would parade through court for some good old-fashioned mud-slinging.  Given the show's over-the-top soap opera story lines, I expected a soap opera in court.

Nothing doing.  Although there were some juicy tidbits about whether Ms. Sheridan was difficult, whether Mr. Cherry touched or "walloped" her, in the end the case proved as big a bore as the non-verdict mistrial.

The one takeaway I got from the trial to pass on to employers came from Mr. Cherry's testimony about why he touched Ms. Sheridan on the forehead (his version of events).  He indicated that he was merely trying to direct her in the scene, which seems plausible.  However, there was a problem with a couple of other things he said:

• That he did not feel like he needed permission to touch her; and
• His explanation that he regularly physically directed the actors on set, including carrying Eva Longoria around on the set. 

I hope it is obvious to employers that, even if an employee is pocket-sized like Ms. Longoria, picking him or her up to carry around is not a good idea.   General rule of thumb:  assume it is never ok to touch an employee without permission.

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The National Labor Relations Board (NLRB) recently issued a decision interpreting the United States Supreme Court (“SCOTUS”) decision in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002) as prohibiting the NLRB from awarding back pay to undocumented immigrants whose rights under the National Labor Relations Act (“NLRA”) were violated; even when their illegal status was known to the employer at the time of hiring. NLRB Chairwoman Wilma B. Liebman, and Members Mark Gaston Pearce and Brian Hayes issued the unanimous decision in Mezonos Maven Bakery, with Member Craig Becker having recused himself.

The case involved seven employees at a bakery who were not asked for documentation when they were hired, worked for up to eight years, and were fired after complaining as a group about the treatment that they were receiving. After settling the subsequent unfair labor practice charges, the issue arose as to whether the employees could be awarded back wages and benefits post Hoffman.

Chairman Liebman and Member Pearce agreed that Hoffman precludes an award of back pay but they warned of the policy implications of Hoffman. In what is being heralded as an unprecedented criticism of a SCOTUS decision by the NLRB, Liebman and Pearce outlined the varying implications Hoffman has on the NLRB’s ability to enforce the NLRA. They contended that removing the Board’s ability to award back wages encourages unscrupulous employment practices and prevents the employee from “being made whole.” Specifically, Liebman and Pearce explained that, “in addition to the obvious failure to make employee-victims whole[,] the Act’s enforcement is undermined, employees [documented and undocumented] are chilled in the exercise of their Section 7 rights, the workforce is fragmented, and a vital check on workplace abuses is removed.”

Liebman and Pearce were especially concerned that their ruling, required by Hoffman, gives violating employers a leg up on law abiding competitors by providing “a cost-free discharge guarantee—even where, as here, the employer is a knowing IRCA violator—the demand-side pull [for cheap labor] will be all the greater, directly contrary to Congress’[] purpose in enacting IRCA.”

Although Liebman and Pearce acknowledged that a first time employer-violator would be issued a cease and desist order and thereby “set the stage for contempt penalties should the employer reoffend,” their concern, and one shared by many, is that the damage will already be done. Those who complain will have been terminated, and others may refrain from exercising their rights out of fear of retaliation.

Despite your views on this decision, one thing is clear: it does little to impact the way most businesses function. The U.S. workforce is one of the most well-educated in the world and employees will generally file a complaint (only) when necessary and appropriate (some may argue that they will complain even in the absence of necessity or appropriateness). Thus, employers should continue to verify an employee’s work authorization because failure to do so, in addition to incurring liability for penalties under IRCA, may incur the wrath of the NLRB, which can be very creative in its punishment of violators. Should you be unlucky enough to violate the NLRA a second time, remember the old saying, “[h]ell hath no fury like a Board scorned” —or something like that.
 

As the Board put it, going forward: “[w]e would be willing to consider in a future case any remedy within our statutory powers that would prevent an employer that discriminates against undocumented workers because of their protected activity from being unjustly enriched by its unlawful conduct.”

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The EEOC has been working late – it has filed numerous new law suits this week, many of which are class actions.   

The EEOC’s week looked a little like this:

Monday, September 26, 2011

On behalf of black applicants who sought to become coal miners in Kentucky, the EEOC filed a class action case of racial discrimination.  

Tuesday, September 27, 2011

In a case alleging gender discrimination, the EEOC sued another coal mine owner in Illinois on behalf of female applicants.  

Wednesday, September 28, 2011

The EEOC filed a class action in Tennessee against U-Haul based upon racial discrimination. 

In another action that is more interesting, a complaint filed in Texas entitled EEOC v. Vitol, 4:11 cv 03506 (S.D. Texas), the EEOC claimed that a woman was fired subsequent to filing a claim of sexual harassment against her employer, although the EEOC dismissed the charge. However, her presumably spiteful first employer sent a copy of her previous charge to her new employer, and she was fired the same day. 

The EEOC sued both employers for retaliation, alleging that the employee’s right to engage in activity protected by Title VII, i.e., to file a charge of discrimination against employer one, was violated when she was fired by employer two.         

Finally,the EEOC filed a national origin discrimination lawsuit in Arizona against AN Luxury Imports of Tucson, Inc. and Autonation USA Corp. based upon the alleged harassment of both a German and Polish employee. The German employee was referred to as a “Nazi” and a “German spy,” given a Nazi salute, and had pictures of Hitler put on his equipment. The Polish employee was repeatedly called a “f---ing Polack” and “dumb Polack.”   It is alleged that although supervisors knew of this harassment, they did nothing to remedy the situation but instead retaliated against the employees by disciplining and then firing them.

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Statistics released recently by the EEOC show, as employment practitioners already intuitively knew, that retaliation claims have skyrocketed so that now they are the most frequently filed EEOC claim against both private sector employers and the federal government. 

Retaliation claims are serious business, as we have repeatedly warned employers in this blog.   As we noted in our blog entry of May 23, 2011, a retaliation claim is far easier to prove than an underlying claim of discrimination, and that even if the underlying claim of discrimination has no merit, retaliation can still be proved. All that must be shown to make out a claim for retaliation is the employee’s filing of a claim or complaint of discrimination, an “adverse employment action” by the employer, and some causal connection between the two.  

Moreover, as we mentioned in our May 23^rd entry and our entry dated January 25, 2011, the scope of what constitutes retaliation has been expanding so that now it may encompass acts occurring after the termination of employment, as well as claims made by  “associates” of employees (known as “associational discrimination” claims).  For example, not long ago the Supreme Court held that the anti-retaliation provision of Title VII protects employees from termination where that employee was the fiancé of another employee who exercised her rights under the statute to file a discrimination complaint.

The employer’s best practice in a situation where a discrimination claim has been filed, as we often write, is to take a “business as usual” approach and act as if no complaint had been filed by treating the employee like any other employee; engaging in open, non-intimidating communication with the employee to find common ground while the investigation or litigation is pending; and, of course, documenting all decisions and pre and post-complaint performance issues that might result in discipline. Finally, anti-discrimination training of managers and employees is key.

In this difficult economy, insecure employees often try to game the system by filing weak or meritless charges of discrimination, knowing that employers are likely to avoid doing anything that might bring on a retaliation claim. The result is that the insecure employee is able to delay or avoid altogether  appropriate disciplinary measures or termination. We believe that this likely accounts for the explosive growth of retaliation claims.

Employers must stick to “best practices” – being sued for retaliation may be unavoidable, but avoiding ultimate liability should be the goal.    

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This newly-filed action in federal court in Nebraska against the owner of the Chicago Cubs merits little comment except to permit us to be creative in crafting a tabloid style headline.  See Davis v. Ricketts.   

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We have found another recent case where a laid off employee was not rehired after she filed claims of discrimination with the EEOC.  However, in this case the court found that the employer’s reason for refusal to rehire the employee was legitimate and therefore held that there was no retaliation.  See our blog entry of May 23, 2011.

In Lyons v. Metropolitan Government of Nashville and Davidson County, a school employee was terminated and thereafter filed a charge of discrimination with the EEOC, and later a charge of retaliation – that the school did not rehire her because she had filed the first charge.   

A federal appeals court ruled that the school’s reason for refusing to rehire her – that her psychiatrist reported to the police that she told him that she “felt like blowing up the school” -  was a legitimate, non-pretextual business decision.   

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The answer is a clear and unambiguous “yes.” 

The Supreme Court, in Thompson v. North A. Stainless, LP, a decision issued earlier this year (see our blog discussion of January 25, 2011), held that if an employee files a claim of employment discrimination, and another employee who is a close family member of the first employee suffers an “adverse employment action,” this may be considered retaliation.  

Before the Thompson decision was rendered, a federal appeals court had dismissed such a claim of retaliation in which a Houston police officer alleged that he was transferred to a less desirable position because his father (also a police officer) had filed a discrimination claim. The court held then that retaliation must be “based on [the plaintiff-employee’s] engaging in his own protected activity.”  Zamora v. Houston.

However, given the ruling in Thompson, the appeals court just reversed itself and held that the son has a potential claim for retaliation based upon his father’s protected activity.    

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We all know that an employer is not permitted to retaliate against an employee who has filed a claim or complaint of discrimination. We also know that retaliation is far easier to prove than an underlying claim of discrimination, and that even if the underlying claim of discrimination has no merit, retaliation can still be proved. All that must be shown to make out a claim for retaliation is the employee’s filing of a claim or complaint of discrimination, an “adverse employment action” by the employer, and some causal connection between the two.  

Usually a claim for retaliation is made by a current employee, since it seems obvious that an employer does not have the ability to retaliate against someone who is no longer an employee.  Not so.

Two courts have stressed that retaliation can occur after the termination of employment.  The highest state court in Massachusetts has just ruled that under Massachusetts state law, even though an “adverse employment action,” by its very wording, seems to apply only to a current employee, nonetheless in light of the broad purpose of the anti-discrimination laws, which are to be “liberally construed,” it is not limited to current employees. The statute also protects former employees from further adverse actions by the former employer.  Psy-Ed Corp. v. Klein.

Additionally, a federal court of appeals sitting in Cincinnati recently held that retaliation may be found in a case where an employer refused to re-hire a former employee who had two years earlier resigned after claiming sexual harassment.   Although the lower court found that the passage of two years was too long for a claim of retaliation, the appeals court reversed and held that “temporal proximity”* between the claim of discrimination and the “adverse action” was not dispositive of “causal connection,” especially in the “failure-to-hire context.”   Templeton v. First Tenn. Bank N.A.

*See our blog entry on temporal proximity, March 29, 2011.

Moral of this story: don’t retaliate ever.  

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On March 14, 2011, the United States District Court for the Eastern District of Pennsylvania answered a lingering question regarding the proof required to prove a retaliation claim under Title VII.   The question was left open as to how expansively the U.S. Supreme Court's 2009 decision in Gross v. FBL Fin. Servs. Inc. , which held that there was no such thing as a "mixed-motive" case under the Age Discrimination in Employment Act, would be applied to other statutes.  In a "mixed-motive" case the plaintiff's burden of proof is lowered.  A plaintiff may be entitled to a "mixed-motive" instruction where there is evidence that both a legitimate and a discriminatory motive was behind the employment decision.  Where there is such evidence, in order to prove discrimination, the plaintiff need only prove that the discriminatory reason was a "motivating factor" in the employment decision, not the sole or "but for" cause of the employment decision.

In Zhang v. Children's Hosp. of Philadelphia, Magistrate Judge L. Felipe Restrepo held that only the “but-for” standard applied to Zhang's retaliation claims and that, as a matter of law, the lesser "motivating factor" standard would never apply to a Title VII retaliation claims in light of the language of the statute and the Supreme Court Justices' reasoning in Gross. 

It is certainly possible (and likely) that this decision will be appealed since it addresses an issue of first impression in the wake of Gross.  In the meantime, the decision is a significant win for employers in the Third Circuit as it makes it more difficult for employees to prove retaliation claims.  This is good news especially since the EEOC has again reported an increase in retaliation claims -- with 33,613 charges filed in 2009 and 36, 258 in 2010, representing 36.3% of all charges filed with the EEOC.

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This fancy sounding legal maxim simply refers to the logical fallacy of believing that temporal succession implies a causal relation. That is, the close or suspicious timing of two events does not necessarily lead to the logical conclusion that one event caused the other.   

This maxim is not merely a lifeless old saying – it was used recently by a U.S. Court of Appeals* to reiterate the law that the “temporal sequence” of an employee’s firing -- in this case just as he

handed his boss a note opposing a discriminatory action -- did not as a matter of law show causation for a viable retaliation claim.    

Sound harsh? It really isn’t. In this case, where direct evidence of retaliation was absent, the Court concluded that it was up to the jury to determine whether, indeed, the “temporal sequence” showed causation. The Court stated that the timing of the firing “could support an adverse inference by a reasonable trier of fact.” While suspicious timing may be merely suspicious, and no more, the Court said that “[o]ccasionally, however, an adverse action [the firing] comes so close on the heels of a protected act that an inference of causation is sensible.” It all depends on the context.        

While the Court did state that Title VII does not require an employer to have a “just cause” for a firing, nonetheless “an employer who advances a fishy reason takes the risk that disbelief of the reason will support an inference that it is a pretext for discrimination.” 

Concluding, the Court noted that even though temporal succession does not imply a causal relation -- Post Hoc Ergo Propter! -- it is also false to say that timing never supports an inference of causation. “The closer two events are, the more likely that the first caused the second. … A jury, not a judge, should decide whether the inference is appropriate.”

Moral: You better not have a fishy reason to fire someone just as he complains of discrimination.

*See Loudermilk v. Best Pallet Co.,

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