Two Guys Walk into a Wine Bar… Not a Joke as Another Court Recognizes Claim for Harassment Based on Sexual OrientationI have told clients for years that they ignore claims based on sexual orientation at their peril, and another court is backing me up. An Arizona federal district court just ordered a wine bar to pay real money ($100,000) to two servers based on claims about sexual orientation harassment and retaliation.

Curiously, this was a default judgment, so we have no idea what the employer’s side of this story is. With that caveat, two servers, Wyatt Lupton and Jared Bahnick, filed charges with the EEOC claiming that 5th & Wine allowed its management and employees to harass them because they are gay. According to Lupton, he was fired after he said he planned on taking legal action. The EEOC found cause and ultimately filed a lawsuit on their behalf. The company did not answer, and the EEOC obtained a default judgment—money for Lupton and Bahnick, as well as injunctive relief.

Regardless of what actually happened at this wine bar, employers should be careful when confronted with claims of discrimination or harassment based on sexual orientation or transgender status. Even though Congress has not added these as protected categories under Title VII, many courts are treating them as covered. In light of that trend, cautious employers should consider the following:

  • If an employee reports that he or she is being harassed because of sexual orientation or transgender status, treat it like you would any other harassment complaint.
  • Consider revising EEO and harassment policies to explicitly include sexual orientation and transgender status as protected categories.
  • Make sure supervisors and managers understand that ignoring these issues could land the company in court.

Blow Out Your Candles…and Clean Out Your Desk: The Dangers of Firing an Employee after Her 65th BirthdayNothing ruins a birthday celebration faster than a pink slip. Karen Ruerat, a receptionist, was terminated from her position at Professional Endodontics, P.C. four days after her 65th birthday. She alleges it was because of her age, and the EEOC is suing on her behalf, alleging violations of the Age Discrimination in Employment Act (ADEA).

The Details

Ruerat began working for Professional Endodontics in 1978 as a window greeter/receptionist. In January 2016, following 37 years of employment and, coincidentally, her 65th birthday, they terminated her. The EEOC complaint alleged that Professional Endodontics maintained an employment policy requiring its employees to retire at the age of 65, and Reurat’s termination was the result. Unsurprisingly, Professional Endodontics, in its answer, denied any and all contention that such a policy existed, as well as the claim that it treated Ruerat unfairly because of her age.

The Bigger Picture

Under the ADEA, it is unlawful to discriminate against a person because they are 40 years or older. In some limited instances, employers may avoid ADEA liability: (1) where age is a bona fide occupational qualification reasonably necessary to the normal operation of the par­ticu­lar business, and/or (2) where the differentiation is based on reasonable factors other than age. Generally speaking, however, any mention of age in relation to employment practices is likely to create red flags and employer headaches.

Fortunately, Professional Endodontics was able to resolve this claim by agreeing to not take any employment actions on the basis of age…and pay Ruerat $47,000. Professional Endodontics also agreed to supplement and re-distribute its existing policy with ADEA-specific language clearly stating that there is no mandatory retirement age and provide anti-discrimination training for the next two years.

What Does This Mean for Employers?

While there are clearly two sides to Ruerat’s story, employers can still take this opportunity to prevent future liability and litigation. Professional Endodontics likely did not have a mandatory retirement age; however, it also may not have clearly communicated its expectations/policies to its employees. Here, then, are a few items to help your company avoid a similar spat with the EEOC:

Avoid mentioning age (when possible) in your policies. The ADEA doesn’t have an upper age limit. Employers, then, should understand that you absolutely cannot institute a mandatory retirement age or anything that suggests people should retire. Age is a dangerous topic to broach, and for that reason employers should take care to thoughtfully review their current practices and policies.

Document employment decisions. In the normal course of business, there are countless personnel decisions made on a daily basis. It can be easy to lose track of what decision was made and why it was made. So employers should document all of their legitimate, non-discriminatory reasons when engaging in employment decisions. Create a strong paper trail so you can show that you fired an elderly employee because she couldn’t or wouldn’t do her job, not because of her age.

Use neutral communication. A lot of the tension created by employment decisions can be attributed to lapses in communication. As an employer, it is your duty to let your employees know where they stand. Whether that means reiterating performance standards or engaging in conversation over the seniority/merit/non-age based factors that you use to determine employment, be clear and stay neutral.

Provide training. With an increase in employee protections, it is never fruitless to invest in additional training opportunities for your staff. An ounce of prevention is truly worth a pound of cure. Whether the trainings are in person or through an online platform, ensure that your workers interact with anti-discrimination content regularly to help avoid any hostility, confusion, or miscommunications in the workplace.

As your employees gain experience, they gain years on the age clock. Old or young, be sure to manage all of your employees the same way.

Employers beware: An employee does not have to use “magic words” to complain about discrimination for it to lay the basis for a retaliation claim. The Sixth Circuit made this point in a unanimous opinion in the case of Mumm v. Charter Township of Superior.

Sixth Circuit to Employers: No ‘Magic Words’ Make a Sex Discrimination Complaint Title VII Protected ActivityFacts

Susan Mumm complained to her employer, the Township, about being disciplined for performance-related reasons (she was an accountant, among other duties). After the Township addressed her complaint, Mumm’s supervisor, Ken Schwartz, asked her to withdraw the complaint.

During a subsequent meeting, Mumm stated she would withdraw her complaint only if the Township granted her an immediate pay raise of $10,000 because she was “tired of being underpaid for all these years in relation to Keith Lockie.” Lockie (male) was another Township accountant. Mumm also claims she informed her supervisor that she had consulted a labor attorney, and she intended to file a lawsuit if the Township did not address “the pay discrimination between Keith and me.”

The Township subsequently fired Mumm because it had “lost trust” in her after the meeting, which the Township considered to be the “last straw” in a number of inappropriate actions. True to her word, Mumm filed a lawsuit alleging multiple claims, including a retaliation claim under Title VII. Under Title VII, it is unlawful for an employer to retaliate against an employee for engaging in Title VII-protected activity. The district court granted summary judgment to the Township on all of Mumm’s claims, holding Mumm’s complaint did not constitute Title VII-protected activity. Mumm appealed to the Sixth Circuit.

What the Sixth Circuit Said on Appeal

The Sixth Circuit reversed the trial court. The court held that Mumm’s threat to sue was clear enough to be protected activity and the Township “should have known Mumm was charging the Township with sex discrimination.” The Sixth Circuit sent the case back to the district court for a jury trial.

In reversing summary judgment, the Sixth Circuit found that even though Mumm did not say “sex discrimination” or make clear she believed gender explained the pay difference between her and Lockie, the Township officials knew Lockie was male, knew he occupied a similar position, and knew that he (like Mumm) was an at-will, non-unionized employee.

“Mumm pointed to a specific practice she believed to be unlawful (the pay disparity between her and Lockie) and threatened to sue if the Township did not correct it. . . .It makes no difference that Mumm did not utter the magic words ‘sex discrimination.’”

The Sixth Circuit also held that a reasonable jury could find the Township’s reasons for Mumm’s discharge were pretextual.

Takeaways

This case is a good lesson for employers dealing with employees who raise complaints.

  • Don’t be picky when determining whether an employee has complained about discrimination. As the Sixth Circuit found, an employee does not have to use certain “magic words” to engage in protected activity. If it is a close call, treat it like a discrimination complaint.
  • If an employee complains about something you think could be about discrimination (even if the employee did not expressly say it), treat it accordingly. Investigate that complaint.
  • Don’t retaliate against an employee for bringing it up. You can address issues, discipline if necessary, etc., but don’t base a decision on the fact that the employee complained. Otherwise, you may have to be explaining yourself to a jury.