Ever wonder why the severance agreement that I (or your other favorite employment lawyer) send you says “nothing in this Agreement prevents Employee from filing a charge with the EEOC” (or words to that effect)? I mean, isn’t that the point of the agreement? You pay the employee money, and he or she can’t file a charge or lawsuit against you? Well, a recently announced settlement from the EEOC provides some insight.

Background

An employee with the Coleman Company filed an EEOC charge alleging that the company discriminated against the employee based on a disability. After investigating, the EEOC found that it was probable that the company violated Section 503 of Americans with Disabilities Act and Section 704 and 706 of Title VII—the retaliation provisions. How, you may ask? According to the EEOC’s announcement,

the company conditioned “employees’ receipt of severance pay on an overly broad severance agreement that interfered with employees’ rights to file charges and communicate with the EEOC, and which precluded employees from accepting any relief obtained by the EEOC, should the agency take further action.”

Coleman has agreed to hire a consultant to review its severance agreements and make changes if necessary. The company will also notify employees who signed agreements in the last few years about their rights.

Now What?

Keep in mind that the EEOC’s announcement does not indicate that Coleman discriminated against the former employee based on a disability. This conciliation was all about a provision in the severance agreement. So, it appears that the company did what it was supposed to do under the ADA but is being chastised only for its form agreement.

The EEOC has made clear that it is concerned about the breadth of severance agreements. In fact, preserving access to the legal system, including addressing overbroad separation agreements, is part of its Strategic Enforcement Plan.

Note that the EEOC’s agreement with Coleman goes well beyond the current charging party. Not only must Coleman review and perhaps revise its current agreement, it must notify any employees who signed similar agreements in recent years. Once the EEOC is looking at an issue in your workplace, it can expand beyond the current employee.

So what’s the moral of the story? When your labor lawyer includes language that carves out someone’s ability to talk to the EEOC (or any other government agency), listen.

The More You Know…Or Others Think You Know: Fifth Circuit Finds Decision-maker Had Knowledge to Constitute RetaliationThe Fifth Circuit has issued another opinion in the continuing saga of Jackson State University and its past athletic director, Dr. Vivian Fuller—this one about retaliation against a witness. To refresh everyone’s memory: A secretary at JSU filed an EEOC charge claiming that AD Fuller sexually harassed her and then fired her. During its investigation, JSU’s attorneys and the EEOC interviewed Fred Robinson, the Director of Sports Medicine, who witnessed some of the AD’s actions. A month after those interviews, AD Fuller terminated Robinson. He felt it was retaliation for his testimony; JSU said it was due to a reorganization of the athletic department and issues with Robinson’s daily availability.

The District Court Case and Verdict

Robinson sued JSU alleging retaliation under Title VII and the First Amendment. The case went to trial and the two big questions were: 1) Did Dr. Fuller actually know that the EEOC interviewed Robinson, and 2) were the reasons for Robinson’s termination simply pretext for retaliation? At trial, Dr. Fuller denied any knowledge of Robinson’s interviews. Without direct evidence, Robinson offered circumstantial evidence including: 1) He was fired not long after his EEOC interview; 2) JSU’s own attorneys knew about the interview and met with Fuller after the interview; 3) Dr. Fuller started avoiding him after the interview; and 4) JSU’s president had threatened to fire anyone who was against the AD (pretty strong one, there). JSU countered by claiming that Dr. Fuller had already decided to fire Robinson before the interview even occurred and also came up with some other incidents.

The jury sided with Robinson and awarded him just over $30,000 in compensatory damages and $75,000 in punitive damages. JSU moved to set aside the verdict claiming that there was insufficient evidence to show that the decision-maker, Dr. Fuller, had actual knowledge of Robinson’s EEOC interview, so she could not have retaliated against him for it. The court agreed with JSU and overturned the verdict. Robinson appealed.

What the Fifth Circuit Said

The Fifth Circuit narrowed the issue to whether there was legally sufficient evidence that Robinson’s EEOC interview (the protected activity) caused his termination (the adverse employment action). If Dr. Fuller had no knowledge of the protected activity, the termination could not be retaliation. The court noted that direct proof that a decision-maker had knowledge could be “elusive” — almost all of the people being accused of retaliating are going to feign ignorance of anything that could have given them a motive. For example, “I had no idea that Suzie had reported our slippery floors to OSHA! I terminated her only because we no longer needed an accountant.”

In the Fifth Circuit (Mississippi, Louisiana and Texas), for a successful retaliation claim you have to show that the actual decision-maker had knowledge — not just that the corporation had constructive knowledge (as it is in other federal circuits). In this case, JSU argued that all of Robinson’s evidence was merely speculative. However, as the Fifth Circuit noted, it obviously was enough for the jury. The indirect and circumstantial evidence, such as the president’s threat to fire anyone who opposed the AD and the JSU’s attorneys meeting with the AD after the EEOC’s interview with Robinson, were, according to the Court, the “prototypical circumstantial indicators of decision-maker knowledge.” In regular speak, it was enough to convince the jury, and ultimately the Fifth Circuit, that Dr. Fuller knew about Robinson’s interview, despite her denials. The Fifth Circuit reversed the lower court’s striking of the verdict.

What Does this Teach Us?

Just because you have a decision-maker who says he didn’t know about a complaint (or EEOC charge, OSHA report, ADA request, or whatever) before he terminated the complaining employee or one of her witnesses that may not get you off the retaliation hook. Before you pull the trigger, you need to look at all the circumstances surrounding the potential adverse employment decision. Is it close in time to the protected activity (e.g., complaint, testimony)? Who knows about the protected activity, and what access have they had to your decision-maker? Has your CEO or anyone else made any threats or other comments about the claim that could hurt down the road?

As we always say, retaliation can be tricky. You have to not only defend the complaint but also prevent the retaliation fallout. While filing a complaint doesn’t make an employee bulletproof, it should at least make the employer take a good look at any future decisions that may affect that person or his or her supporters.

Happy Thanksgiving and the Many Things for Which We Are ThankfulBefore everyone gets out of the office to their various homes and families to celebrate the holiday, we wanted to review the year and count our blessings. Not only are we thankful that our families and colleagues in our Houston and Tampa offices weathered the storms safely, we are also thankful for the following legal stuff:

1. The DOL is not about to change the wage and hour laws.

Does anyone else remember the panicked calls last Thanksgiving week when the Texas judge put the brakes on a regulation that was going to increase the salary basis test? We are all thankful that will not happen this year. Although we still don’t know what, if anything, will happen on that front we will keep you posted.

2. Finally a court has said the ADA is not about leave.

Despite the EEOC’s insistence otherwise, the Seventh Circuit stepped up to the plate and said extended leave is not a reasonable accommodation under the ADA. As we all know, you still need to consider if a limited amount of leave will get the employee back to work but we are thankful that we have some new case law on this front.

3. Harvey Weinstein doesn’t work for us.

This story has horrified many but given all employers a wake-up call. We are grateful for the opportunity to train more people and try to make America a better place to work.

4. The NLRB has a new direction.

Maybe the new Board won’t tell employees that it is okay to swear at your boss on Facebook or nitpick employer policies quite so much.

5. You’re not going to be the employer of someone else’s employees.

DOL has withdrawn its prior guidance on independent contractor and joint employer liability, and Alabama’s Rep. Byrne has introduced a bill to “Save Our Small Businesses.”

6. Legalized marijuana has made questions about drug policies so much more interesting.

Even though it isn’t legal in many states, the fact that employees can legally ingest marijuana many places (including Florida) and take their chances on the looming random drug screen has spiced up our lives. While the law will continue to develop in this area, we are grateful for the very interesting questions we have received.

7. People other than our mothers read this blog.

(Okay, some of our moms are reading and might boost the numbers a little bit.) Since 2016, we have published more than 130 articles and had more than 230,000 reads, according to aggregate reports from Lexology and JD Supra. We have received recognition in The Expert Institute’s Best Legal Blog 2017 competition, the ABA Journal’s Web 100 Ranking, and numerous quotations in other publications. We enjoy bringing you this information and love it when you tell us it is helpful or tweet it to someone else.

Happy Thanksgiving from the Labor & Employment Insights blog team!