Hug It Out at Work? Maybe Not in the Ninth Circuit

Coworkers hugging at the officeWhen does workplace hugging go too far? The Ninth Circuit Court of Appeals recently weighed in with an opinion. Victoria Zetwick, a county correctional officer, based her Title VII hostile work environment suit almost entirely upon her supervisor’s practice of hugging her and the rest of the female staff.

Just How Much Hugging?

By her count, Sheriff Edward Prieto hugged Zetwick two dozen times from 1999 to 2002 and then another 100 times between 2003 and 2011. She admitted that none of the hugs lasted more than a few seconds and all of them happened in front of other people—mostly at workplace parties, award banquets and GED graduations for prisoners. She included one kiss–the Sheriff kissed her to congratulate her on her recent marriage to a sheriff’s deputy, she turned her head and the kiss landed partially on her lips. The Sheriff hugged other female employees, but gave handshakes to the male employees. Zetwick admitted that she also hugged male co-workers, but that the Sheriff’s hugs were severe or pervasive enough to cause her stress at work and create a hostile work environment.

Summary Judgment at the District Court

The County moved for summary judgment arguing that the Sheriff’s actions were just “genuine, but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex.” It cited cases to support the notion that courts do not consider hugs and kisses on the cheek to be outside the realm of common workplace behavior. The County argued that the Sheriff’s hugging was within the scope of “ordinary workplace socializing.” In a unique strategy, the County also calculated that based on her testimony, the Plaintiff would have experienced the hugs an average of seven or eight times a year for a couple of seconds on each occurrence. The District Court adopted the County’s arguments and found that the Sheriff’s conduct did not rise to the level of creating a hostile work environment. Zetwick appealed.

Ninth Circuit Reversal

The Ninth Circuit disagreed with the lower court. First, they noted that the case law cited by the County did not identify the number of times the hugging occurred. In addition, the Court pointed out that in a hostile work environment case, when the conduct is unwelcome and pervasive, it becomes unlawful. The Ninth Circuit also disagreed with the lower court’s finding that the hugging was ordinary workplace socializing. The Court stated that a reasonable juror could find, from the frequency of the hugs, that the Sheriff’s conduct was out of proportion with normal workplace behavior. The Court further noted that it was significant that the unwelcome hugs were coming from her supervisor. For all these reasons, the Ninth Circuit found that there were issues of fact that a jury should consider and reinstated Zetwick’s lawsuit.

No Hugging at Work?

So, does this mean that no one can ever hug a co-worker? Probably not but it does show that hostile work environment claims do have a very subjective element. Courts will look to whether the conduct is unwelcome and if it is, whether it is pervasive or severe. Some people are huggers—-they do not find the conduct to be a problem. Others may feel differently. It also matters how often the hugging is happening. Could an employee file a claim for one hug at a company birthday celebration? Maybe not. Could an employee file a claim for an unsolicited hug from the copy guy every day when he sees her? Probably a lot closer to a yes. If the hugger is your boss, the answer is probably yes–certainly in the Ninth Circuit. The best thing to do is to have honest and direct conversations with your employees about sexual harassment and the reporting procedure. But no group hugs afterwards.

Consistently Inconsistent? Fifth Circuit Appears to Have Conflicting Approaches to Damages Under the ADEA and FLSA

age discriminationCan a plaintiff get pain and suffering or punitive damages in a retaliation claim under the Age Discrimination in Employment Act (ADEA)? In Vaughan v. Anderson Regional Medical Center, the Fifth Circuit, denying both an interlocutory appeal and a petition for rehearing, says “no”.

Legal Framework.

As we all know, the ADEA explicitly limits a successful plaintiff’s recovery to lost wages and liquidated damages, following the damages scheme of the Fair Labor Standards Act rather than Title VII. However, both the ADEA and the FLSA provide for retaliation claims and that is where the similarity in damages ends (at least in the Fifth Circuit). In 1977, Congress amended the FLSA to provide for compensatory and punitive damages in a retaliation case. Congress did not amend the ADEA.

Facts and Arguments in Vaughan.

Susan L. Vaughan, who worked for Anderson Regional Medical Center as a nurse supervisor, sued claiming she was terminated because of her age and in retaliation for complaining about her supervisor’s discriminatory comments relating to her age. While Vaughan conceded that she could not receive pain and suffering or punitive damages for her age discrimination claim, she argued those damages were available for her retaliation claim. ARMC filed a motion to dismiss the claim for those damages. The trial court dismissed Vaughan’s claims, relying on Dean v. American Sec. Ins. Co., 1977 Fifth Circuit precedent that barred those damages under the ADEA.

On interlocutory appeal, Vaughan pointed to Seventh and Eleventh Circuit cases, and EEOC advisory guidance, that supported her claim for these damages for her ADEA retaliation claim. Given that Dean explicitly prohibited the damages for age discrimination claims but did not mention retaliation claims, she argued that it silently excluded ADEA retaliation claims from its ruling. Vaughan also argued that because the Fifth Circuit interprets the FLSA to provide remedies consistent with the ADEA, the 1977 amendment to FLSA retaliation remedies enlarged the ADEA retaliation remedies as well. The Fifth Circuit disagreed on both counts, affirming the trial court, holding that Dean is the controlling law for all ADEA damages claims and was unaffected by the 1977 FLSA amendment.

But What About FLSA Retaliation Claims in the Fifth Circuit?

Three days prior to its Vaughan ruling, however, the Fifth Circuit in Pineda v. JTCH Apts., LLC, ruled that the 1977 amendment did allow emotional distress damages in FLSA claims.  So– does the Fifth Circuit still interpret the FLSA to provide remedies consistent with the ADEA? That is the question that Vaughan and the AARP, as Amici Curiae, asked in a petition for rehearing and en banc consideration. Given that the two cases use the same statute for damages the opinions appear a little contradictory. Not so, says the Fifth Circuit—which withdrew its prior opinion in Vaughan and issued a new opinion with the same holding and almost exact same reasoning. Bottom line, the Fifth Circuit has made clear that Dean controls all claims under the ADEA, including retaliation claims.

What Does This Mean?

The Fifth Circuit appears to have deviated from its position that damages for retaliation claims under the FLSA and the ADEA will be interpreted consistently and seems to be holding steady that ADEA retaliation only gets liquidated damages. As Vaughan pointed out, however, some other circuits and the EEOC believe that emotional distress and punitive damages are available for ADEA retaliation claims. For employers, this decision emphasizes the importance of avoiding potential retaliation claims under the ADEA or any other law.

Even Faster Re-Appointment: President Trump Tags Dean Alexander Acosta as Next DOL Nominee

R. Alexander AcostaOne day after losing his initial nominee, Andy Puzder, President Trump named Alexander Acosta, the Dean of Florida International School of Law, his next (and hopefully final) nominee for Secretary of Labor. Acosta is a former member of the NLRB and past U.S. Attorney for the Southern District of Florida. While he was the U.S. Attorney, he prosecuted lobbyist Jack Abramoff and suspected terrorist José Padilla. If confirmed, he would be the first Hispanic member of Trump’s cabinet.

Stay tuned…

Fast Exit for Fast Food Labor Secretary Nominee Puzder

Andrew PuzderSecretary of Labor nominee Andy Puzder withdrew his nomination on February 15. Neither his statement nor his Twitter posts gave any reason for the withdrawal, but it was known that his nomination was in trouble with several Republican senators. The criticism against him ranged from the expected — his record running two fast food chains and his opposition to minimum wage hikes — to the unexpected — an undocumented housekeeper and old allegations of domestic abuse by an ex-wife.

So who will step into his place? In the past, President Trump has expressed interest in private practice labor attorney Peter Kirsanow. Kirsanow is a former member of the NLRB and a current member of the U.S. Commission on Civil Rights. Wisconsin Governor Scott Walker’s name was also bandied about as a possible choice before Puzder. Walker became notorious in labor circles when he proposed and then enacted a law stripping most Wisconsin public workers of their collective bargaining rights. The waiting game will now begin for the next nominee.

So what does this mean for employers? Since the election, the DOL has taken some things off the front (or maybe any) burner. Employers need to comply with the laws on the books and the regulations that are currently in place and stay tuned to see what happens.

When Off-the-Clock Isn’t Off-the-Clock: The Seventh Circuit Considers Employees’ Arguments that Employer Violated the Fair Labor Standards Act by Not Paying Overtime for Off-Duty Use of Work-Issued BlackBerrys

Blackberry phone

Remember that collective action that the Chicago police officers filed complaining that they weren’t paid overtime for checking their BlackBerrys off duty? Well, the cops lost at trial and now the U.S. Court of Appeals for the Seventh Circuit has it. Recall that 54 officers from the Bureau of Organized Crime Unit filed a collective action that the Chicago Police Department had a policy of not paying overtime to some police officers for their off-duty use of their work-issued BlackBerrys. The officers argued that the city issued the BlackBerrys based on the premise that the officers would always be available to answer e-mails and phone calls.  During a weeklong bench trial before U.S. Magistrate Judge Sidney I. Schenkier, officers testified that they feared repercussions if they submitted overtime requests for off-duty answering of e-mails and phone calls and that such requests were frowned upon. At trial, the Department offered two approved time slips—indicating that the Department did not discourage the requests and paid them. The officers’ attorney later argued that the evidence of two time slips was conveniently timed – the approvals “all seem to have magically happened just in advance of the trial”.  Judge Schenkier, however, held that the police officer’s claims did not rise to the standard set by the Fair Labor Standards Act.

The city and the officers are currently arguing their case before the Seventh Circuit in Allen v. Chicago (case no. 16-1029).  The city filed a brief Tuesday night, arguing that the department did not have either a written or an unwritten policy that refused to compensate police officers for either answering phone calls or e-mails on their work-issued BlackBerrys. Additionally, the city argued that the “intentional failure to report overtime in accordance with an employer’s reasonable timekeeping procedures preclude[ed] an FLSA claim for unpaid overtime”. Employers who have nonexempt employees with 24-7 email or telephone access should watch closely to see if the Seventh Circuit agrees.

Check Your Dress Codes and Decide If You Really Need One (Or Want to Enforce It)

PeopleDress codes—a helpful workplace rule or a trap for the unwary? A recent Forbes article (High Heels and Workplace Dress Codes: Urgent Action Needed, Say U.K. MPs) relates the story of Nicola Thorp, who was sent home from her receptionist job at an accounting firm in London because she was not wearing at least a 2” heel. She thought her formal flats were sufficiently business-like but her employer disagreed and sent her home without pay to change. This sparked a discussion in Parliament.

As we emerge from the year end “let’s update that employee handbook” season, I want to encourage you to look at your dress code. At the outset, I want to make clear I am not talking about dress codes that require particular safety equipment or a uniform. Those kinds of dress codes are typically defensible, even if you have some different standards for men and women. I want to address the policies that are not safety driven or about making sure customers can identify the employee in the room.

In the spirit of full disclosure, I admit that I am a “less is more kind of lawyer” when it comes to policies. I tend to think you don’t need a complicated dress code because you will never cover everything anyway. My preferred dress code policy looks like this:

We expect you to be and look professional, coming to work in clothing that is neat, clean and appropriate for our work.  If you are not dressed appropriately, we will talk with you about it and ask you to change, which could include going home.

I think this policy encourages supervisors and managers to talk to their direct reports and coach them about appearance—which is typically part of how to be a successful employee. Does that open the door for supervisors to enforce the policy unevenly? Yes, but probably not any more unevenly that that supervisor already enforces the detailed dress code.

If you don’t want the less is more dress code, what should you do? Rule One: Enforce the dress code consistently. Dress codes are bright lines so you have to be sure that they are rigidly enforced. Rule Two: Forget about Rule One when an employee requests a reasonable accommodation for a disability or religious belief.

Beyond those rules, I think you can tell your employees that they need to project a certain image (e.g., no extreme hairstyles, limited piercings or tattoos, etc.) if you want, although you could still get a challenge [School of Hard (Dread) Locks: EEOC Loses Appeal Over Hairstyle Ban]. Once you get into varying standards for men and women, you may be able to enforce it but you are asking for a challenge—based on sex, gender stereotypes, or gender identification. Be careful and only have rules for which you want to go to the mat.

With that said, here are a few dress code provisions that will almost certainly get you in trouble:

  1. Women’s skirts should be no more than __ inches above the knee. The first time I saw this provision (when I still wore skirts above my much younger knees) the proscribed length was 4” above the knee. I thought that could end up being pretty short (depending on how tall you are). More importantly, the last thing I wanted was a supervisor measuring a skirt (mine or anyone else’s). Not surprisingly, this policy was selectively enforced (which is how it landed on my desk in an EEOC charge). Just say skirts should not be too short or revealing—then address problems.
  2. No earrings on males. Once you raise a different standard for men and women, you could get a challenge. Think about whether it would be just as effective to limit all earrings to one per ear that don’t drop below the ear lobe. If you want to prohibit earrings on males, just be sure it is important to your business.
  3. No jewelry (except a wedding ring). It’s the “except” that gets you in trouble. This is clearly not a safety concern (because a wedding ring would present the same safety issue). It opens you up to challenges (e.g., my nose ring is part of my religious observance, my promise ring to my same sex partner, etc.). Do you really need the except?
  4. Employees must wear appropriate undergarments. Okay—this wasn’t actually in a corporate dress code, it was in the dress code for the maximum security prison I visited last month. However, if your dress code doesn’t say that people have to wear appropriate undergarments, does that mean the woman who is obviously unencumbered by a brassiere (much to the chagrin of her female coworkers) doesn’t have to wear one? Of course not. If your dress code talks about being professionally or appropriately dressed, talk with the employee about what you expect.

Why is this so hard? Because we want our employees to convey a certain look—it may be professional or tech or casual—but we want a look. We also, curiously, are all talking about diversity—which is kind of the antithesis of the conformity that a dress code suggests.

So—save yourself some grief and come up with a dress code that does what you want it to do and enforce it—or chuck it altogether.

Anxiety, Absenteeism, and the ADA

Telemarketer and supervisorAs accommodating and flexible as the Americans with Disabilities Act (ADA) compels employers to be, the harsh reality is that there are some jobs that a person with certain disabilities simply cannot do. When an employee suffering from a disability can no longer perform the essential functions of her job with or without a reasonable accommodation, the ADA allows her employer to terminate her. Although this rule may be more easily applied when dealing with a physical disability that prevents an employee from completing critical tasks, it also holds true for an employee with a mental or emotional disability, particularly one that prevents her from working at all. The Sixth Circuit made this crystal clear in Williams v. AT&T Mobility Services LLC.

The Williams case involved an AT&T customer service representative (CSR) who suffered from depression and anxiety attacks that caused her to frequently miss work. Because of her excessive absenteeism, AT&T terminated Williams for job abandonment and violating the attendance policy. Williams sued AT&T under the ADA for failing to provide a reasonable accommodation, failing to engage in the interactive process, and terminating her based on her disability. The U.S. District Court for the Western District of Tennessee granted summary judgment to AT&T as to all of Williams’s claims. Williams appealed, arguing that she could have performed her job despite her depression and anxiety attacks if AT&T had given her leave from work for treatment, flexible scheduling, and additional breaks during her shifts. The Sixth Circuit disagreed.

First: Regular Attendance Was an Essential Job Function.

Citing EEOC v. Ford Motor Co., the Sixth Circuit first explained that regular attendance qualified as an essential job function, so employees with excessive absences were not qualified individuals under the ADA because they failed to perform that essential function (i.e., regularly attend their jobs). Considering AT&T’s strict Attendance Guidelines and declarations from two AT&T managers regarding the CSR position, the Sixth Circuit held that regular attendance was an essential function of the CSR position. The court noted Williams’s poor attendance record, including being absent from work for entire months in two different years, taking a six-month leave and nearly three-month leave, and not getting her unscheduled absences approved for short-term disability leave. Given this record, the Sixth Circuit held that Williams could not perform the essential function of regularly attending her job and was not qualified to be a CSR without a reasonable accommodation.

Next: Williams Did Not Request Reasonable Accommodations.

Because Williams failed to show how her proposed accommodations would have enabled her to perform the essential functions of a CSR, the Sixth Circuit also found that AT&T did not fail to accommodate her. Williams admitted that her anxiety attacks were unpredictable, she could not perform her job duties during her attacks, she could not function in a call center environment, and she could not focus due to her mental illness. Importantly, neither Williams nor her health care providers explained how flexible scheduling and additional breaks would have mitigated these issues and enabled Williams to do her job. Furthermore, the Sixth Circuit held that requiring AT&T to grant Williams additional leave was an unreasonable accommodation because Williams had a history of taking leaves, her condition never improved during those leaves, and she repeatedly failed to return to work when her health care providers estimated that she would be able to return.

After reiterating that an employer’s failure to engage in the interactive process is only actionable if the employee can demonstrate that she was qualified for the position, the Sixth Circuit stated that it was unnecessary to consider whether AT&T failed to engage in the interactive process because Williams was unqualified for her position as a CSR with or without a reasonable accommodation. The court also agreed with the district court that Williams failed to establish a prima facie case of disability discrimination or retaliation and affirmed the district court’s summary judgment ruling in favor of AT&T.


So, what is the Sixth Circuit telling us about how to deal with a mental disability that prevents an employee from coming to work? First, clearly articulate the essential functions of an employee’s job, preferably in writing (e.g., job description, employee handbook), and be sure to mention attendance is essential. Second, assess whether the employee is performing the essential functions of her job (including coming to work), being sure to document and promptly inform the employee about deficiencies. Third, discuss whether there are any reasonable accommodations available that would allow the employee to do her job. Ask for recommendations from the employee’s health care providers during this interactive process. If you and the employee (and the employee’s doctor) cannot come up with a reasonable accommodation that does not eliminate an essential job function of the position (i.e., coming to work), and you do not have a vacant position in which you can reasonably accommodate her, you may have to terminate the employee. Although handling this type of issue may take some time, in this case the Sixth Circuit declared that AT&T did all that the ADA required. Employers should follow its example.

Don’t Go Changing: White House Keeping Obama LGBTQ Order in Place

Man withdrawing wooden card painted as the gay pride flagOver the weekend several media outlets reported that a draft executive order was being circulated that overturned President Obama’s 2014 directive prohibiting federal employers and contractors from discriminating on the basis of sexual orientation and gender identity in the federal workforce and by federal contractors.  Executive Order 13672, which was signed on July 21, 2014, amended Executive Order 11478 — which was previously amended in 1998 by Executive Order 13087 to prohibit discrimination on the basis sexual orientation in the competitive service of the federal civilian workforce– to include gender identity.  It also amended Executive Order 11246 to prohibit discrimination based on sexual orientation and gender identity by federal contractors.

On Tuesday, the White House issued a statement, announcing that the “executive order signed in 2014, which protects employees from anti-LGBTQ workplace discrimination while working for federal contractors, will remain intact.”  As reported by the Washington Post, the Trump administration’s statement regarding Executive Order 13672 is significant because the executive order affects approximately 24,000 companies, employing 28 million workers, which represents 20% of the United States workforce.

New Acting Bosses at EEOC and NLRB: Familiar Faces Bringing Big Changes?

All hands together, racial equality in teamIn the last several days, President Trump has elevated individuals to head two of the governmental agencies that shape employment law. First, Philip Miscimarra was promoted to be the acting chair of the National Labor Relations Board (NLRB) which is charged with enforcing the National Labor Relations Act. Mr. Miscimarra was originally appointed to the Board by President Obama in 2013. Prior to the Board, Miscimarra was a labor & employment lawyer in private practice.  Second, Victoria Lipnic was named acting chair of the Equal Employment Opportunity Commission, the agency that handles and occasionally litigates charges of employment discrimination. She likewise was appointed by President Obama in 2010 (and then again in 2015) after a career in private practice and several years with the Department of Labor in the Bush Administration.

What does this mean as far as changes in the labor and employment landscape? Hard to say this early. Since both are insiders in their respective organizations, it is unlikely that they will implement radical structural change for either agency. Mr. Miscimarra has expressed displeasure with some of the NLRB’s recent rulings striking down communication and social media policies in employment handbooks. He also has written dissenting opinions favoring more confidentiality in workplace investigations—especially in harassment cases.

Ms. Lipnic dissented in cases holding that sexual orientation is covered by Title VII’s prohibition on sex discrimination. She also voted against, and has been publicly critical of, the new EEO-1 data form that would include pay information. Data should start being collected under that form this Spring and will be filed in Spring 2018, so it will be interesting to see if she has the EEOC change position on that data collection.

Why Not Ask About Prior Pay? It’s Against the Law in Some Places and Dangerous Everywhere

Businessman Giving Cheque To Other PersonSetting a new employee’s pay based on what he or she made at a prior job is a fairly common practice—but now an illegal one in Philadelphia, PA. You heard right, Philadelphia has banned questions about salary history. This local law follows a Massachusetts law (similar but not identical) aimed at closing the pay gap between women and minorities and their white male counterparts.

But you don’t have employees in Philadelphia (or Massachusetts). More importantly, you don’t set pay based on race or gender and recognize that to do so would violate Title VII of the Civil Rights Act of 1964. I want to remind you that it would also violate the Equal Pay Act of 1963 (EPA), which provides:

No employer . . . shall discriminate . . . between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex . . .

Unlike Title VII, the EPA doesn’t require the employee to establish intent to discriminate—merely that she is paid less than a male comparator.

Why am I boring you with what you already know? I’m glad you asked.

Nearly every Equal Pay Act claim I have defended was about a female employee who was paid less than a male counterpart and her wage was set based on her prior employment. In one particularly frustrating set of facts, my client was sued for pay discrimination under Title VII (based on race and sex) and the EPA (based on sex). She was in a job classification that had about 15 women and 2 men. There was a pay range and all of the employees fell within it. The plaintiff, who was a slightly less than average performer, was in the bottom half of the crowd. The two men were not the highest paid, in fact one of the men made less than the plaintiff. The highest paid people in the group were women and were the same race as the plaintiff. We got summary judgment on the Title VII claims—but not on the EPA claim.

To establish her EPA claim, the plaintiff only had to show that one man was doing the same job and being paid more. That he was paid only a little more (less than a dollar an hour) and within the pay range didn’t matter. That there were lots of women paid more than him didn’t matter. We explained that the reason he was paid slightly more was because when we set salaries, we considered prior pay. The male comparator was making slightly more than the plaintiff in his prior job, so he started at a slightly higher pay. Summary judgment denied.

Don’t let this happen to you. Even if you can ask about prior pay, be careful how you use it. Make sure employees doing the same job are making the same pay or that you can explain why they aren’t. You can make pay distinctions because someone has been with the company a long time (seniority), gets better performance evaluations (merit), or produced more (quality or quantity of production). Make sure it is not simply based on what they made in their last job.