Discrimination, Harassment and Retaliation

The US Court of Appeals for the Seventh Circuit held in EEOC v. United Airlines, Inc., that the Americans with Disabilities Act of 1990 (ADA) requires employers to reassign employees with disabilities to vacant positions for which they are qualified, unless the reassignment would cause the employers undue hardship. The decision overrules Seventh Circuit precedent in light of the US Supreme Court's decision in U.S. Airways, Inc. v. Barnett. 

In Seff v. Broward County, the US Court of Appeals for the Eleventh Circuit held that Broward County's wellness program fell within the Americans with Disabilities Act of 1990 (ADA) safe harbor for insurance plans. The Eleventh Circuit affirmed the district court's ruling in Broward County's favor, which was based on the district court's finding that the wellness program was a term of Broward County's group health insurance plan for purposes of the safe harbor.

Effective January 1, 2012, California law prohibits discrimination in employment, housing, public accommodation and other areas on the basis of an individual's genetic information, which includes genetic tests, disorders and services received by the person or person's family members. 

California Governor Jerry Brown signed multiple employment-related bills into law in September 2012, covering such areas as wage payment laws and notification requirements, anti-discrimination laws and social media laws.

In Smith v. Bray, the US Court of Appeals for the Seventh Circuit held that the cat's paw theory of liability is available under Section 1981 of the Civil Rights Act of 1866 where an employee, acting with a retaliatory motive, causes the employer to retaliate against another employee. An employee may be held individually liable under Section 1981.   

In Bucalo v. Shelter Island Union Free School District, the US Court of Appeals for the Second Circuit held that an employer may satisfy its burden of production under McDonnell Douglas by providing circumstantial evidence of nondiscriminatory reasons for an employment decision, when the employer, through no fault of its own, cannot specifically articulate nondiscriminatory reasons for the decision. 

The US Department of Labor's (DOL) Wage and Hour Division (WHD) has extended the comment period for the proposed rule implementing statutory amendments to the Family and Medical Leave Act (FMLA). Among other things, the new rules would expand military caregiver leave, add a special hours of service eligibility requirement for airline flight crew employees, and impact certain regulations for calculating FMLA leave and for reinstating employees following FMLA leave.

In Brush v. Sears Holdings Corp., the US Court of Appeals for the Eleventh Circuit held that the plaintiff's criticism of her employer's internal investigation of a sexual harassment claim by another employee was not protected activity under Title VII of the Civil Rights Act of 1964. The court adopted the "manager rule," which holds that a manager's disagreement with his employer's actions, during the course of performing his regular job duties, is not protected activity under Title VII.

In Sanders v. Lee County School District,  the US Court of Appeals for the Eighth Circuit held that defendants must affirmatively prove they were ignorant of federal discrimination law under Title VII of the Civil Rights Act of 1964 to avoid punitive damages. The Eighth Circuit reversed and remanded the district court's decision to set aside a jury verdict that found constructive discharge and awarded punitive damages.

In Gerald v. University of Puerto Rico, the US Court of Appeals for the First Circuit held that the plaintiff had presented enough evidence of hostile work environment and quid pro quo sexual harassment under Title VII and analogous Puerto Rico laws to withstand summary judgment, even though she previously had a romantic relationship with her alleged harasser and told risqué jokes and engaged in "off-color banter" with him.

The US Court of Appeals for the Eleventh Circuit recently held in Glenn v. Brumby that discrimination against a transgender or transsexual individual on the basis of their gender non-conformity is sex discrimination.

The US District Court for the District of Connecticut in Kramer v. Trans-Lux Corp. adopted a broad reading of the Dodd-Frank Act's whistleblower definition under the Act's anti-retaliation provision, holding that an employee's reasonable belief of SEC violations qualified him as a protected whistleblower for purposes of his retaliation claim against his employer.

On January 30, 2012, the Department of Labor's (DOL) Wage and Hour Division issued a notice of proposed rulemaking to revise certain regulations of the Family and Medical Leave Act (FMLA). The proposed regulations implement statutory amendments to the FMLA made by the National Defense Authorization Act for Fiscal Year 2010 and the Airline Flight Crew Technical Corrections Act.

In Menendez v. Halliburton, Inc., the Department of Labor Administrative Review Board adopted a new definition for adverse employment actions for claims brought under the whistleblower provisions of the Sarbanes-Oxley Act. Under the new standard, an employer's action may qualify as adverse if it is more than trivial, even if the employee suffers no tangible employment consequences.

The EEOC and the Office of Federal Contract Compliance Programs (OFCCP) signed a revised memorandum of understanding on November 7, 2011 to aid in coordination of enforcement efforts.

The US Court of Appeals for the Sixth Circuit reversed the trial court's ruling for the employer in Serrano and EEOC v. Cintas Corp., holding that the Equal Employment Opportunity Commission (EEOC) can pursue a pattern-or-practice claim under Section 706 of Title VII of the Civil Rights Act of 1964 (Title VII).

On July 18, 2012, the Equal Employment Opportunity Commission (EEOC) held a public meeting on its proposed Strategic Enforcement Plan.  The EEOC is holding open the record of the meeting for 15 days and will accept written comments during that time. 

The Equal Employment Opportunity Commission (EEOC) issued four revised documents on protections under the Americans with Disabilities Act (ADA) in the workplace, specifically focusing on cancer, diabetes, epilepsy and intellectual disabilities.

An update on an EEOC informal discussion letter providing guidance on employer wellness programs under the ADA and GINA and on employers' use of genetic information for those programs.

The Equal Employment Opportunity Commission (EEOC) has released additional guidance on when an employer potentially violates the Americans with Disabilities Act (ADA) by requiring employees to have a high school diploma.

In Equal Employment Opportunity Commission v. Burlington Northern Santa Fe Railroad, a disability discrimination case involving two individual claims, the US Court of Appeals for the Tenth Circuit affirmed the district court's refusal to enforce the Equal Employment Opportunity Commision's (EEOC) administrative subpoena seeking the employer's nationwide hiring records, reasoning that the requested information was not relevant and overbroad.

In Chapter 7 Trustee v. Gate Gourmet, Inc., the US Court of Appeals for the Eleventh Circuit held that an employee whose claims included allegations of pregnancy discrimination and retaliation for the filing of an EEOC charge had presented sufficient evidence on those counts to survive a motion for summary judgment.

In Sims v. MVM, Inc., the US Court of Appeals for the Eleventh Circuit considered the standard for proving violations of the Age Discrimination in Employment Act (ADEA) under a cat's paw theory of liability. The Eleventh Circuit held that the proximate causation standard articulated in Staub v. Proctor Hospital, a case alleging violations under the Uniformed Services Employment and Reemployment Rights Act (USERRA), does not apply in ADEA cases.

The US Court of Appeals for the Seventh Circuit ruled in EEOC v. Thrivent Financial for Lutherans that information about an employee's illness provided in response to a non-medical inquiry is not protected by the confidentiality requirements of the Americans with Disabilities Act (ADA) where the employer was unaware of the employee's medical condition beforehand.

In Lewis v. Humboldt Acquisition Corp., the en banc US Court of Appeals for the Sixth Circuit joined 11 other circuit courts in rejecting the "sole reason" causation standard for claims under the Americans with Disabilities Act (ADA). The court also declined to accept a "motivating factor" test urged by the plaintiff and adopted by seven other circuit courts, instead citing Supreme Court precedent in holding that a "but-for" test is the proper standard for adjudicating ADA claims.

In Philip Cannata v. Catholic Diocese of Austin, a church music director alleged that he was terminated in violation of the Age Discrimination in Employment Act (ADEA) and the Americans with Disabilities Act (ADA). The US Court of Appeals for the Fifth Circuit affirmed the district court decision and dismissed the suit based on the ministerial exception, which bars employment-discrimination suits by ministers against their churches. This appeal presents the first opportunity for the Fifth Circuit to address the ministerial exception in light of the US Supreme Court decision in Hosanna-Tabor.

This Law Firm Publication by Fisher & Phillips LLP discusses Indiana's new anti-smoking law, signed by Governor Daniels. Under this law, smoking is prohibited in any place of employment, all public places and within eight feet of the entrance to either of these places. Employers must inform current and prospective employees of the prohibition. The law also prohibits discrimination and retaliation for reporting violations under this law. The anti-smoking law takes effect July 1, 2012.

In Randolph v. ADT Security Services, Inc., the US District Court for the District of Maryland held that an employer violated the anti-retaliation provisions of the Fair Labor Standards Act (FLSA) when it terminated employees for breaching their confidentiality obligations by disclosing confidential information to a state agency in connection with a wage claim.

This Law Firm Publication by Ford & Harrison LLP discusses the Minnesota Supreme Court's decision in LaMont v. Independent School District #728, which broadens the definition of sexual harassment under the Minnesota Human Rights Act (MHRA). The court held, for the first time, that a plaintiff can allege a hostile work environment claim for harassment that was based on sex, but was not sexual in nature. However, the plaintiff must still show that the conduct altered the conditions of employment and created an abusive working environment. This decision brings Minnesota sexual harassment law in line with Title VII.

On January 27, 2012, in Minor v. Bostwick Laboratories, Inc., the US Court of Appeals for the Fourth Circuit held that intracompany complaints may constitute protected activity under the Fair Labor Standards Act (FLSA). An employee's complaint falls under the FLSA anti-retaliation provision where it is sufficiently clear and detailed for a reasonable employer to understand it as an assertion of FLSA rights and a call for their protection.

The European Commission has published a proposal for a directive of the European Parliament and of the Council on improving the gender balance among non-executive directors of companies listed on stock exchanges and related measures. (Free access)

This Legal Update offers best practices tips for avoiding liability connected to an employer-sponsored holiday party.

This Honigman Miller Schwartz and Cohn LLP memorandum discusses the Michigan Court of Appeals' September 13, 2011 decision in Hall v. Stark Reagan, P.C., holding that shareholders may sue for discrimination under the state Elliott-Larsen Civil Rights Act (ELCRA). The ELCRA prohibits discrimination against any individual and the court reasoned that the term individual is not limited to employees.

This Legal Update highlights pertinent resources about employers' legal obligations regarding veterans and their families and care-givers.

The Seventh Circuit recently held that comments from an employer's HR director were admissions against that employer's interest, not hearsay, despite the fact that she was not directly involved in the termination decision. Because her comments were direct evidence of possible violations, the Seventh Circuit, in Makowski v. SmithAmundsen LLC, reversed the trial court's grant of summary judgment for the employer, allowing claims to stand on pregnancy discrimination, FMLA interference and retaliation.

This Law Firm Publication by Jackson Lewis LLP discusses California's Senate Bill 1038, which was recently signed by Governor Brown. Effective January 1, 2013, the new law will, among other things, eliminate the California Fair Employment and Housing Commission (FEHC). The FEHC's duties of rulemaking and administrative adjudication of discrimination claims will be mainly assumed by the Department of Fair Employment and Housing (DFEH), which will include a Fair Employment and Housing Council.

This Law Firm Publication by Jackson Lewis LLP discusses the California Workplace Religious Freedom Act of 2012 (WRFA), which went into effect on January 1, 2013. The WRFA amends the California Fair Employment and Housing Act (FEHA) by expanding the scope of workplace protections for employees' religious beliefs. For example, protected religious beliefs under the WRFA include religious dress and grooming practices. The WRFA also provides that an accommodation of an employee's religious beliefs is not reasonable if the accommodation segregates the employee from his co-workers or the public. Furthermore, the WRFA applies the same standard in religious accommodation cases as in other accommodation cases under the FEHA, by requiring an employer to show that the "undue burden" created by a religious accommodation requires significant difficulty or expense.

This Law Firm Publication by Jackson Lewis LLP discusses Patino v. Birken Manufacturing Co., in which the Connecticut Supreme Court ruled that hostile work environment claims may be brought under Connecticut's law prohibiting discrimination based on sexual orientation. The court held that the reference in the law to "terms, conditions or privileges of employment," a phrase the court had previously found to support a hostile work environment cause of action, demonstrated an intent by the legislature to create the same cause of action for sexual orientation discrimination.

This Law Firm Publication by Jackson Lewis LLP discusses Hansen v. Robert Half Int’l, a recent Minnesota Supreme Court decision affirming that an employee has no right to reinstatement under the Minnesota Parenting Leave Act (MPLA) following an extension of maternity leave. Hansen claimed that her employer violated the MPLA by failing to reinstate her after maternity leave and by retaliating against her for taking maternity leave. She also claimed that the employer violated the Minnesota Human Rights Act (MHRA) by terminating her because of her sex. The court held that the MPLA neither provides nor suggests that an extension of leave under the MPLA extends the right to reinstatement. The court supported its conclusion by referring to federal court decisions that the expiration of Family and Medical Leave Act (FMLA) leave terminates reinstatement rights to the same or an equivalent position. Further, because Hansen’s employer clearly stated in writing that she would forfeit her right to reinstatement if she extended her leave, her right to reinstatement was not extended. The court also held that there was a bona fide reduction in force and that Hansen failed to show that her termination was because of her sex.

This Law Firm Publication by Jackson Lewis LLP discusses Indiana's recently enacted criminal expungement law which prohibits employers from discriminating against applicants or employees because a prior criminal charge was expunged. The new law, effective July 1, 2013, specifically prohibits any person from suspending, refusing to employ or discriminating against an employee in response to an expunged arrest or conviction. A violation of this provision is classified as a class C infraction in Indiana, and the court may award injunctive relief. Employers should review their employment applications to ensure compliance with this new law.

This Law Firm Publication by Jackson Lewis LLP discusses a new Nebraska law that grants civil immunity to employers that provide job references to prospective employers of their current or former employees. The law creates a list of approved information that an employer may disclose without fear of liability. However, the law does not provide immunity to employers who either: Knowingly or recklessly provide false information. Disclose information with a discriminatory or retaliatory purpose. Approved on April 10, 2012, the law takes effect July 18, 2012.

This Law Firm Publication by Jackson Lewis LLP discusses New Mexico's new equal pay law, the Fair Pay for Women Act (FPWA), which prohibits wage discrimination on the basis of an employee's sex and allows employees to bring wage discrimination claims directly in court, without first filing a charge with an administrative agency. The FPWA applies to all employers with at least four employees and provides prevailing plaintiffs with injunctive relief, damages, attorneys' fees, punitive damages and potential treble damages. The FPWA is effective June 2013.

This Jackson Lewis LLP memorandum discusses the substantial revisions to the Oklahoma Standards For Workplace Drug and Alcohol Testing Act (Okla. Stat. §§ 551 - 563). The revisions, which became effective on November 1, 2011, simplify the law and make it more employer-friendly. The revisions include reductions in written policy requirements and in the required notice period, and a replacement of the "reasonable suspicion" test with a "for cause" test based on a "reasonable belief" standard for employers. The revised law also permits testing of independent contractors under certain circumstances.  

This Law Firm Publication by Jackson Lewis LLP discusses the California First District Court of Appeal's May 16, 2012 decision in Fitzsimons v. California Emergency Physicians Medical Group, holding a partner in a medical practice can sue the practice for retaliation under the California Fair Employment and Housing Act (FEHA). Although the plaintiff was not protected from discrimination or harassment under the FEHA because she did not have an employment relationship with the practice, the court found that the FEHA's plain language prohibited partnerships from retaliating against any person opposing or reporting the sexual harassment of an employee.

In Walden v. Centers for Disease Control, the US Court of Appeals for the Eleventh Circuit held that laying off a counselor who, because of her religious beliefs, objected to providing advice about a same-sex relationship was a reasonable accommodation.

A list of new California employment-related laws effective on January 1, 2012 and covering areas such as pay notices, credit checks, pregnancy disability leave and independent contractors, among others.

The Office of Federal Contract Compliance Programs (OFCCP) has extended the comment period for its proposed rule amending the affirmative action obligations regarding individuals with disabilities for federal contractors and subcontractors covered by Section 503 of the Rehabilitation Act of 1973. The OFCCP has extended the comment period to February 21, 2012.

The Department of Labor (DOL) Office of Federal Contract Compliance Programs (OFCCP) issued a notice of final rescission rescinding two guidance documents on enforcement of the Executive Order 11246 prohibition on compensation discrimination. The guidance documents, which are commonly known as the Standards and the Voluntary Guidelines, were originally issued in 2006. Their rescission will permit the OFCCP to conduct investigations of contractor pay practices consistent with Title VII of the Civil Rights Act of 1964 (Title VII), allowing it to better identify and remedy the varied forms of compensation discrimination that occur. The notice of final rescission is effective February 28, 2013.

This Law Firm Publication by Ogletree, Deakins, Nash, Smoak & Stewart, P.C. discusses California's new workplace protections for employees' religious dress and grooming practices. The California Fair Employment and Housing Act currently protects employees from discrimination on the basis of religious creed. On September 8, 2012, California enacted Assembly Bill 1964, which amends the Fair Employment and Housing Act to explicitly protect religious dress and grooming practices such as religious clothing, jewelry, and head or facial hair. Employers must reasonably accommodate employees' religious dress and grooming practices, except when doing so would cause an undue hardship on the business. The law takes effect on January 1, 2013. 

This Ogletree, Deakins, Nash, Smoak & Stewart, P.C. memorandum discusses a California Court of Appeal's January 23, 2012 decision in Joaquin v. City of Los Angeles, where the court held that an employer did not violate California's Fair Employment and Housing Act (FEHA) by firing an employee who had allegedly fabricated a sexual harassment complaint against his supervisor. The court found that the employee failed to introduce substantial evidence under FEHA that his termination was motivated by retaliatory animus, or that his employer’s stated reason for firing him was pretextual. 

This Ogletree, Deakins, Nash, Smoak & Stewart P.C. memorandum discusses the transgender anti-discrimination bill passed by the Massachusetts legislature on November 16, 2011. The bill will add "gender identity" to the list of protected categories under Massachusetts non-discrimination laws. The governor is expected to sign the bill into law this week.

This Ogletree, Deakins, Nash, Smoak & Stewart, P.C. memorandum discusses several new Oregon employment laws effective January 1, 2012. HB 3450 requires employers to include specific disclaimers in arbitration agreements with employees. Under HB 3034, employers must permit employees to take unpaid leave for jury duty rather than requiring the employees to use vacation, sick or annual leave. HB 2828 requires employers with ten or more employees to provide certain insurance coverage to an employee serving as a juror if the employee elects to have coverage continue during this time. HB 2040 clarifies the information a former employee must include in a written notice of non-payment of wages at termination. Under HB 2039, employees can recover statutory damages and attorneys' fees from employers that issue dishonored checks. 

This Law Firm Publication by Ogletree, Deakins, Nash, Smoak & Stewart, P.C., discusses the New Jersey Appellate Division's recent decision in Quinlan v. Curtiss-Wright Corp., finding the plaintiff has the burden of proving failure to mitigate front pay damages. The court held that while an employer must prove failure to mitigate back pay damages, it was unfair to require an employer to forecast what jobs the plaintiff could obtain in the future and demonstrate that the plaintiff would not pursue them.

This Law Firm Publication by Ogletree, Deakins, Nash, Smoak & Stewart, P.C. discusses the implications for employers of Amendment 64 to the Colorado Constitution, which legalizes the recreational use of marijuana in Colorado. Despite the passage of the law, Ogletree Deakins concludes that drug testing for marijuana remains permissible in Colorado, and that employers can still take action against employees found to be in violation of carefully crafted drug policies.

An updated Whistleblower Investigations Manual has been issued by the Occupational Safety and Health Administration (OSHA). The new manual includes updated guidance for OSHA's handling of retaliation complaints under the whistleblower provisions of 21 statutes.

On July 17, 2012, the Department of Labor (DOL) announced that the Federal Railroad Administration (FRA) and the Occupational Safety and Health Administration (OSHA) signed an agreement to work together to enforce the whistleblower provision of the Federal Railroad Safety Act (FRSA).

In Koessel v. Sublette County Sheriff's Department, the US Court of Appeals for the Tenth Circuit held that a plaintiff could not proceed with his claim under the Americans with Disabilities Act (ADA) where he had demonstrated that he could physically perform the essential functions of his job but a doctor had concluded he could have psychological trouble performing in high-stress situations.

In Okwu v. McKim, the US Court of Appeals for the Ninth Circuit held that public employees cannot use Section 1983 of Title 42 of the US Code to vindicate rights under Title I of the Americans with Disabilities Act (Title I) that were allegedly violated by a public employer. The comprehensive remedial scheme provided by Title I manifests Congress's intent to preclude remedies under Section 1983 for alleged violations of Title I substantive rights.

This Legal Update highlights pertinent resources about employers' legal obligations related to religious celebration and observance. 

This Law Firm Publication by Schnader Harrison Segal & Lewis LLP explains that employers in New Jersey do not have to comply with the new equal pay notice requirement by the November 19, 2012 effective date or 30 days thereafter, because the New Jersey Department of Labor and Workforce Development has not yet formally published the notice. The regulatory process that must precede final publication of the notice will take months, and therefore the notice will not be ready by the effective date. The notice will state that gender-based discrimination is prohibited in pay and the other terms and conditions of employment.

An update on the SEC issuing proposed rules to implement Section 21F of the Exchange Act, entitled "Securities Whistleblower Incentives and Protection," as required by the Dodd-Frank Act.

In Bechtel v. Administrative Review Board, the US Court of Appeals for the Second Circuit clarified the burden-shifting framework applicable to whistleblower retaliation claims under the Sarbanes-Oxley Act of 2002 (SOX). The Second Circuit denied the petitioner employee's petition for review, holding that the Administrative Review Board (ARB) did not act arbitrarily or capriciously, or abuse its discretion, when it affirmed the decision of the Administrative Law Judge (ALJ) dismissing the petitioner's complaint.

An update on the US Court of Appeals for the Sixth Circuit's opinion in Stansberry v. Air Wisconsin Airlines Corp., which addressed the standard for an "association discrimination" claim under the ADA. The court held that plaintiff was terminated for legitimate reasons, not due to his wife's disability.

In Paidi v. Mills, the US Court of Appeals for the Second Circuit struck down as unconstitutional a New York law that prevents nonimmigrant aliens from receiving pharmacist licenses. The Second Circuit held that the law violated the Equal Protection Clause because aliens are a suspect class and the state could not distinguish lawful nonimmigrant aliens from other aliens.

This Law Firm Publication by Stoel Rives LLP discusses the Washington Court of Appeals' decision in Short v. Battle Ground School District, finding that Washington's Law Against Discrimination does not require employers to accommodate employees' religious beliefs. Although the court acknowledged that Title VII imposes an affirmative duty to accommodate employees' religious beliefs and practices, it noted that Washington's law predates Title VII and does not contain similar language. The court declined to read the duty to accommodate into the WLAD. Washington's Supreme Court has yet to directly address the issue.

The US Court of Appeals for the Eighth Circuit ruled in Milhauser v. Minco Products, Inc. that termination is a valid "position of employment" under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). The Eighth Circuit concluded that although an employer failed to prove its affirmative defense under USERRA that it would have been "impossible or unreasonable" to rehire an employee returning from a deployment, the employee had not proven that the company had failed to reemploy him in an appropriate position.

In Townsend v. Benjamin Enterprises, Inc., the US Court of Appeals for the Second Circuit decided two issues of first impression for the Second Circuit regarding Title VII of the Civil Rights Act of 1964 (Title VII). First, Title VII's anti-retaliation provision does not protect employees who participate in their employers' internal investigation of discrimination. Second, employers cannot assert the Faragher-Ellerth defense to hostile work environment claims when the alleged discrimination involves a proxy or alter ego of the employer.  

The Equal Employment Opportunity Commission (EEOC) stated that discrimination based on transgender status or gender identity constitutes sex discrimination in violation of Title VII of the Civil Rights Act of 1964. The decision allows transgender employees to file complaints of workplace discrimination with the EEOC.

The Veterans Opportunity to Work (VOW) to Hire Heroes Act of 2011, signed into law by President Obama on November 21, 2011, expands employee protections under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) and offers tax credits to employers who hire unemployed veterans.