Who Judges the Judges? Federal Judiciary Adopts New Workplace Conduct RulesIn light of some recent allegations of harassment of court employees in certain circuits, it may come as no surprise that the federal Judicial Conference recently strengthened their rules prohibiting misconduct and obligating employees to report any misconduct behind the bench. The conference amended the Code of Conduct and Judicial Conduct and Disability Act rules to make clear that misconduct includes:

  1. Sexual harassment or assault.
  2. Creating a hostile work environment for judicial employees.
  3. The broad category of treating judicial employees in a “demonstrably egregious and hostile manner.”
  4. Intentionally discriminating on the basis of race, color, sex, gender, religion, pregnancy, national origin, age or disability. Interestingly, judges are also prohibited from discriminating on the basis of gender identity or sexual orientation – two categories that are the basis of a current split among the courts.
  5. Retaliating against complainants, witnesses or others for participating in the complaint process or for reporting misconduct or disability.
  6. Failing to notify the chief district or circuit judge of reliable information reasonably likely to constitute judicial misconduct or disability.

The amendments also streamline how employees can report misconduct and implement training in identifying judicial misconduct. These requirements will primarily be accomplished through the new Office of Judicial Integrity, which will collect the confidential complaints.

Now what?

No one thinks that the judges didn’t know their legal obligations or that they were allowed to harass employees prior to these amendments. However, it is a sign of the times that the courts decided to explicitly state their commitment to prohibiting harassment, to make it easier to report, and to reiterate non-retaliation protections. It may be interesting to see how judges in the circuits who have ruled specifically against protecting against discrimination based on gender identity and sexual orientation will react to the fact that their own Judicial Code of Conduct recognizes those as protected classes.

Why does this matter to regular folks?

Although the courts knew what the law said, judges will now have a written guideline for how a policy should look. In the future, when a judge needs to assess the sufficiency of a company’s harassment policy and complaint-reporting procedure, that judge may look to these new judicial requirements as a minimum. Companies would be well served to make sure their policies at least hit the high points.

Once Is Enough: Tennessee Federal Court Rules Single Use of ‘N-Word’ By Co-Worker Sufficient to Get Hostile Work Environment Claim to JuryUsually, once is not enough, at least in the hostile work environment context. Unless, as the court found in Ronnie L. Outlaw v. SBH Services, Inc., it is.

Typically, a single incident of harassment – especially by a co-worker – is not sufficient for a hostile work environment claim to survive summary judgment and be heard by a jury. Most of the time, a viable hostile environment claim involves a series of harassing incidents based on membership in a protected class that were severe or pervasive enough to alter the conditions of the employee’s employment. A single, isolated incident usually does not meet this “severe or pervasive” standard.

In its February 19, 2019, opinion, however, the U.S. District Court for the Middle District of Tennessee did not apply this general rule and instead held that Outlaw’s single incident of harassment was sufficient to proceed to a jury.

Facts of the Case

Outlaw, an African-American, and Alex Cruz, a Hispanic, worked together on a construction site. According to the opinion, Outlaw witnessed Cruz performing work in an unsafe manner, and he attempted to correct it. In response, Outlaw claimed that Cruz “grabbed him, pushed him, and said ‘[y]ou punk ass ni—er’.” Outlaw’s employer, SBH Services, admitted Cruz used the “n-word,” but claims that Outlaw was confrontational and called Cruz a “motherf—er.” SBH Services argued “[i]n the Hispanic culture it is extremely offensive to call someone a ‘Motherf—er’ or ‘Son of a B—h’ because mothers are revered and the terms are often taken literally.”

After the incident, a construction company that was partnering with SBH Services on the project launched an investigation. During the investigation, Cruz admitted to using the slur and assaulting Outlaw. Cruz claimed Outlaw initiated the dispute by criticizing his work performance and calling him a “stubborn motherf—er.” Cruz was initially suspended for admitting he assaulted Outlaw.

Following the investigation, the investigators asked Outlaw numerous times whether he could ever work with Cruz again. According to two of the investigators, they believed Cruz and Outlaw were equally at fault and deserved the same punishment. As a result, the investigators allowed Outlaw the choice to either work with Cruz or “suffer his same fate.” Outlaw refused to work with Cruz again. He claims it was made clear to him that he could either work with Cruz or be terminated, so he quit. For his part, Cruz was terminated (apparently, although the opinion did not make it 100 percent clear, because Outlaw was not returning to work).

Outlaw sued SBH Services for race discrimination, retaliation, and hostile work environment. Although the court granted SBH Services summary judgment on Outlaw’s race discrimination and retaliation claims, not so his hostile work environment claim. In denying summary judgment, the court held that although this was only one incident of harassment, a “reasonable jury could consider [it] severe enough to constitute a racially-hostile work environment:”

“It is undisputed that Plaintiff, while on the job, was assaulted and called a vile racial slur by a fellow SBH employee. This event distally precipitated Plaintiff being fired for refusing to agree to work with the man who attacked him . . . .The record thus contains evidence of a single event, created by an SBH employee, that a reasonable jury could consider severe enough to constitute a racially-hostile work environment.”

Now What?

If the parties do not settle the case, it will now proceed to a jury. This case presents some takeaways for employers:

  • A single incident of alleged harassment – especially involving the use of the “n-word” – may be sufficient for a hostile work environment claim to survive summary judgment in the Sixth Circuit (which includes Tennessee, Kentucky, Ohio, and Michigan).
  • The court apparently felt the investigators made a mistake in equating the use of a vile racial slur combined with an assault to calling another employee a “motherf—-r.” The decision set up a situation in which Outlaw and Cruz had to either return to work together or both be fired. In the circumstances outlined by the court (which are viewed in the light most favorable to the plaintiff), the company may have been better served by administering different discipline to the two employees – termination for Cruz (who assaulted Outlaw and used the racial epithet) and lesser discipline for Outlaw (who apparently only used the confrontational language). That may have prevented a lawsuit.
  • Employers should be wary of terminating an employee because of an incident in which the employee was called a racial slur.

Although hostile work environment claims involving a single incident are oftentimes not sufficient to survive summary judgment, the combination of the admitted use of a racial slur plus the loss of a job directly related to the same incident made Outlaw’s case good enough to get to a jury. Now the employer will be left with a Hobbesian choice of its own – pay a settlement or leave its fate in the hands of the strangers in the jury box.

OSHA Safety Retaliation – What Is It?

Virtually every employee protection law, federal or state, has some sort of anti-retaliation provision. The federal Occupational Safety and Health Act is no exception. The Occupational Safety and Health Administration (OSHA) enforces the anti-retaliation provision in this federal law and also the anti-retaliation provisions contained in many other “whistleblower-type” federal laws. This post touches on the anti-retaliation cause of action in the Occupational Safety and Health Act, called a Section 11(c) claim, named after the section of the 1970 act in which it is found.

What’s Covered

My Safety Complaint Was Unsafe for My Continued EmploymentSection 11(c) applies to many forms of employee “protected activity.” Protected activity includes filing a complaint with OSHA, raising a safety complaint with the company, reporting a workers’ compensation injury, or participating in any way in an OSHA safety inspection. Notably, protected activity also includes refusing to follow a work order if an employee believes in good faith that following the order could cause death or serious injury. This type of refusal sometimes is referred to as “invoking safety rights” under the act.

What You Can’t Do

What constitutes retaliation according to OSHA? It is very broad. Any sort of negative employment decision close in time to employee-protected activity can be the basis for a Section 11(c) claim. Discipline and discharge are obvious examples. Prohibited employer conduct under 11(c) is much broader though. Any employer conduct that discourages safety or accident (or “near miss”) reporting is prohibited by 11(c). Thus, for example, OSHA has taken the position that employer safety programs that discourage the reporting of accidents or injuries can violate Section 11(c). An example would be a bonus policy that effectively rewards employees for not reporting workplace accidents without any sort of clear statement in the policy (or through training) that retaliation will not occur for accidents that are reported.

What Employees Can Get

Employers need to take potential Section 11(c) claims seriously. We have been seeing more and more of these claims recently, which is consistent with the trend of more retaliation claims generally. An employee must make a Section 11(c) claim very quickly, within 30 days of an alleged retaliatory act, and, once the claim is made, OSHA investigators should act very quickly, usually in just a matter of days. After OSHA completes its investigation, DOL lawyers will decide whether to bring a lawsuit against the company. These lawsuits are filed in federal court and proceed like many other federal discrimination lawsuits. While an individual employee cannot file the lawsuit by him or herself, these cases otherwise are similar to other discrimination cases. The complainant will have to show protected activity, an adverse action, and a causal connection between the two. If DOL is successful, remedies include back pay and back benefits, compensatory and punitive damages, reinstatement (or other remedial employment actions), notice posting and training, and an award of fees and costs. Settlement and mediation options exist as in other employment cases.

What’s Been Going on Recently

During the latter part of President Obama’s administration, OSHA issued administrative guidance related to Section 11(c). Specifically, OSHA took the position in 2016 that mandatory post-accident drug testing violated Section 11(c) unless an employer could show that drug use likely contributed to a specific accident. OSHA also attacked employer safety incentive programs that discouraged accident reporting, especially if some sort of employee benefit was withheld if accidents in fact were reported. Another aspect of the 2016 revision included a procedure by which an OSHA inspector could issue a retaliation citation even if an employee had never made a retaliation complaint to OSHA.

In the last few months under President Trump’s administration, OSHA has back tracked on some of the restrictions added by the last administration:

  • Post-incident drug testing is allowed if it is done consistently and if all persons who could have contributed to the incident are tested. In other words, testing is okay if it is not just limited to the employee who reported an injury.
  • Safety programs are allowed in many forms, including those that provide “accident-free” bonuses. Such programs should include policy statements, training, and related precautions that make clear that accidents and injuries still should be reported and that employees will not be retaliated against for doing so.

In conclusion, keep safety activities in mind when disciplining employees or implementing safety-related rules and policies. Employer intent matters. If an employment decision follows closely on the heels of protected activity or cannot be justified by legitimate non-retaliatory motivation of the decision maker, a Section 11(c) claim could be very unsafe for the company.