2013 Employment Law Update: What are the Courts Saying? Anthony M. Hohn Davenport, Evans, Hurwitz & Smith, LLP

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1 2013 Employment Law Update: What are the Courts Saying? Anthony M. Hohn Davenport, Evans, Hurwitz & Smith, LLP

2 Road Map I. What is Title VII? II. Litigation and Enforcement Trends III. Significant Case Law and Administrative Developments

3 I. What is Title VII? Prohibits discrimination by covered employers on the basis of race, color, religion, sex or national origin. Prohibits not only intentional discrimination, but also practices that have the effect of discriminating against individuals because of their race, color, national origin, religion, or sex.

4 Title VII and Retaliation It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

5 Enforcement of Title VII Title VII Covers all private employers, state and local governments, and education institutions that employ 15 or more individuals. Enforced by the Equal Employment Opportunity Commission (EEOC).

6 II. Litigation and Enforcement Trends The EEOC has substantially increased its enforcement activity In 2012, it obtained $36.2 million in settlements from systemic investigations. Compare that to 2011, in which only $8.6 million was recovered. The EEOC announced it plans to litigate more cases in the future.

7 Increased EEOC Enforcement: Strategic Enforcement Plan Six Major Areas of Focus: 1. Class-based recruitment and hiring practices 2. Protecting workers unaware of their rights 3. Actively pursuing three main areas of litigation: (i) ADA; (ii) pregnancy-related limitations in the ADA; and (iii) coverage of gay, lesbian, and transgender individuals

8 Strategic Enforcement Plan (con t) 4. Pay discrimination based on gender 5. Retaliation 6. Harassment

9 EEOC Charges Filed in 2012 There were nearly 100,000 charges filed in FY Most common charges: Retaliation: 38.1% Race: 33.7% Sex: 30.5% Disability: 26.5%

10 III. Significant Court Decisions Courts addressed a wide variety of employment issues this year, including cases involving: Discrimination Harassment Retaliation ADA Age Discrimination

11 Harassment Vance v. Ball State University (U.S. Sup. Ct.) Narrowed the definition of supervisor under Title VII for purposes of assessing liability for unlawful harassment. Now, a supervisor only includes someone empowered to take tangible employment actions against an employee.

12 Retaliation University of Texas Southwestern Medical Center v. Nassar (U.S. Sup. Ct.) Retaliation claims under Title VII must be proven by but for causation standard Eliminates the less demanding motivating factor test BUT, the motivating factor test still applies to status-based discrimination claims

13 Retaliation Tangible employment actions include: Hiring Firing Failing to promote Reassignment with significantly different responsibilities Significantly changing benefits

14 Retaliation Vance is significant because, in harassment cases involving harassment by a co-worker, employers can be held liable only if the employer was negligent in failing to stop the conduct. However, if a supervisor is involved, the employer can be held liable regardless of whether it was negligent where tangible employment actions are taken.

15 Retaliation, FMLA, and ADA Jones v. Bracco, LP (Dist. Of SD) Restaurant manager with health problems was discharged shortly after her physician recommended that she take time off work to recover. Employer did not give a reason for the discharge, but instead allowed employee to take one month of medical leave, at the conclusion of which she would be terminated.

16 Retaliation, FMLA, and ADA Plaintiff asserted claims of FMLA interference, FMLA retaliation, ADA discrimination, failure to accommodate under the ADA, and wrongful termination. Employer s defense was that the plaintiff had deteriorating work performance and failed to perform necessary aspects of her position.

17 Retaliation, FMLA, and ADA Holding: FMLA interference: Sufficient evidence of FMLA interference, as the employer had no evidence (i.e. no documentation) of alleged performance problems FMLA retaliation: sufficient evidence of retaliation, as Plaintiff was on FMLA leave at the time she was fired, and the timing of the termination was sufficient to create inference of retaliation; the lack of documentation to support the employer s claims of poor performance was telling; and The company did not follow its own disciplinary policy.

18 Retaliation, FMLA, and ADA ADA Discrimination: Court noted that when an employer gives a nondiscriminatory reason for discharge only after litigation begins, the jury should sort out who is telling the truth ADA Reasonable Accommodation: Employer had notice that Plaintiff needed an accommodation, but failed to provide her with such

19 Retaliation, FMLA, and ADA Wrongful Termination: The Court expanded the public policy exception to the at-will doctrine, It is unfair for an employee to be terminated for asserting her rights under the ADA and FMLA.

20 Retaliation, FMLA, and ADA Lesson: There are times when giving a reason for termination is necessary; this was one of those times If there is truly poor performance, it must be documented Terminating an employee on the heels of a leave request is dangerous territory

21 Hostile Work Environment Ayissi-Etoh v. Fannie Mae (D.C. Circuit) Use of the n-word, referring to plaintiff as a young black man, and requiring plaintiff to continue working with his alleged harasser contributed to a hostile work environment Court held that one use of the n-word alone could establish a hostile work environment

22 Hostile Work Environment Lesson: One extreme comment or incident can create a hostile work environment under Title VII All employees should be trained about antidiscrimination laws, and that the use of any racial epithets in the workplace will not be tolerated

23 Discrimination: Disparate Impact EEOC v. BMW and EEOC v. Dollar General Employers have policy of not hiring people with criminal backgrounds EEOC is challenging use of background checks as being discriminatory against black applicants and employees EEOC claims the policies are not job related or consistent with business necessity

24 Discrimination: Disparate Impact Lesson: Employers must ensure information obtained from background checks is not used in a discriminatory way, even if the policy appears neutral and applies to all applicants/employees Employers must treat everyone with criminal records the same, regardless of race, national origin, etc. If the policy disproportionately excludes a certain protected class, employers must show the exclusions are job related and consistent with business necessity

25 Sex Discrimination Nelson v. James H. Knight, DDS (Iowa Sup. Ct.) Dental assistant was fired for being too tempting to the dentist for which she worked The plaintiff was fired at the request of the dentist s wife The plaintiff sued for unlawful gender discrimination

26 Sex Discrimination Holding: No gender discrimination Employees discharged due to consensual, romantic, or sexually suggestive relationships with their supervisors does not amount to sex discrimination, because the termination was based on sexual activity rather than gender Decision to terminate not based on plaintiff s status as a woman

27 Sex Discrimination Lesson: Even though the employer prevailed, it is never a good idea to engage in a personal relationship with employees This was a close case there is no guarantee other jurisdictions would follow suit Do not model your behavior after Dr. Knight!

28 Age Discrimination Ridout v. JBS USA, LLC (8 th Circuit) 62 year old manager of a pork processing plant fired for insubordination and poor performance filed claim under ADEA Plaintiff claimed his successors, who were in their 30s, were treated better than him despite committing similar infractions

29 Age Discrimination Holding: Similarly situated does not mean clone In other words, the fact the plaintiff s younger replacements engaged in different misconduct does not preclude them from being similarly situated for purposes of ADEA (and probably Title VII) Must simply be similarly situated in all relevant aspects

30 Age Discrimination Younger successors were only demoted for poor performance/misconduct, while the plaintiff was terminated Considering the company s past practices, 4 of 5 managers terminated in the previous year were 40 or older; could show pattern and practice of age discrimination

31 Age Discrimination Sufficient evidence of pretext regarding employer s reason for the termination due to: Satisfactory performance reviews No specific examples or evidence to support reason for termination The plaintiff s conduct was common at this workplace (for example, yelling and swearing on factory floor)

32 Age Discrimination Lessons: Inconsistencies between documentation and reason for termination can lead to big problems Similar misconduct must be treated uniformly regardless of age (and regardless of race, color, religion, sex or national origin)

33 THANK YOU

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