With N Word, Once is Enough. Second Circuit Rules on Hostile Environment Case

boss yellingIs a single incident enough for a hostile work environment claim? It is in the Second Circuit. In Daniel v. T&M Protection Resources, Inc., the court held that one racial epithet was sufficiently severe, by itself, to create a hostile work environment under Title VII

The Facts

Otis Daniel, a 34-year-old black male from St. Vincent and the Grenadines, was a fire safety director at a Manhattan property. T&M Protection terminated Daniel for violating an unwritten policy that prohibited receiving packages while at work. Daniel proceeded pro se, and filed suit alleging a hostile work environment and discriminatory termination, seeking monetary compensation for emotional distress and back wages.  At his deposition, Daniel testified about a number of remarks made by his white supervisor which he perceived to be racially motivated and offensive, including that the property manager preferred white security personnel and comparing Daniel to a gorilla. However, he also testified to an incident in which the supervisor called him a “f****** n*****.” The district court granted summary judgment in favor of the employer, holding that Daniel’s mistreatment did not rise to the level of “severe or pervasive” harassment so as to create a hostile or abusive work environment. Furthermore, the district court held that T&M Protection’s termination of Daniel was not motivated by racial animus.  Daniel appealed and the Second Circuit reversed.

The Ruling

The Second Circuit employed a four factor test with the following factors:

  • the frequency of the discriminatory conduct;
  • the severity of the conduct;
  • whether the conduct is physically threatening or humiliating, or merely offensive utterance; and
  • whether the conduct unreasonably interferes with an employee’s work performance.

In prior cases, the Second Circuit had required a plaintiff to show a steady barrage of serious racial comments instead of merely a few isolated incidents of racial hostility. However, the court relied on some language from a prior case, Rivera v. Rochester Genesee Regional Transportation Authority, to hold that a supervisor’s use of certain unambiguous racial epithets is likely to alter the conditions of employment and create a hostile working environment, weighing heavily in the severity factor. As such, the court vacated the judgment of the district court.  Of note, the Second Circuit did not disturb the district court’s ruling on Daniel’s termination, simply addressing the hostile work environment claim.

Now What?

This decision adds to the difficult task facing employers when it comes to preventing and investigating claims of hostile work environment, especially those based on race. You must provide comprehensive training to ensure a non-discriminatory work environment. Make sure everyone understands that no level of racially offensive language is acceptable. Not only will this provide you and your employees a better place to work, it will protect against litigation. While courts still take into account the totality of the circumstances when evaluating claims of discrimination, the Second Circuit has made it clear: one really bad apple does indeed spoil the bunch.

OSHA Provides Enforcement Guidance on Workplace Violence Response

workplace hazardWhen does an incidence of workplace violence rise to the level of a federal case? The Occupational Safety and Health Administration (OSHA) has updated its guidance on just that issue. The OSH Act’s General Duty Clause requires employers to provide a workplace free from recognized hazards likely to cause death or serious physical harm to employees. The succinctly titled Directive Number CPL 02-01-058, “Enforcement Procedures and Scheduling for Occupational Exposure to Workplace Violence” —which became effective on January 10, 2017 — addresses when hazards created by people (i.e., violent coworker, customer, etc.) violate the General Duty Clause.

The Directive provides general enforcement guidance as to when OSHA officials should make a response to, and/or cite an employer for, a complaint or fatality arising out of an incident of workplace violence. It defines “workplace violence” broadly as “violent acts (including physical assaults and threats of assaults) directed towards persons at work or on duty.” The stated purpose of the new Directive is to (1) clarify the different healthcare settings in which workplace violence incidents are reasonably foreseeable; (2) recognize corrections and taxi driving as high-risk industries; (3) identify more resources for inspectors; (4) explain the review process for settlement agreements; and (5) update guidance on hazard alert letters.

Why the Update?

The updated Directive appears to be based, in part, on data from the Bureau of Labor Statistics (BLS) about the 15,000 to 25,000 incidents of workplace violence reported each year. First, BLS says that two- thirds of the reported incidents resulting in missed work occurred in healthcare settings.  Also, BLS reported that late-night retail workers, taxi drivers, and correctional officers have reported high numbers of incidents of workplace violence.

What Does the Directive Say?

The Directive generally sets forth the steps OSHA is to follow to determine whether to initiate an inspection of a complaint or incident related to workplace violence. It also provides the basis for a citation under the General Duty Clause, the resources available to OSHA in conducting inspections and developing citations, and how Area Offices may assist employers in addressing workplace violence.

In determining whether to initiate an inspection, the Directive sets forth a list of known risk factors, none of which would individually trigger an inspection. OSHA is to consider whether the employer’s work entails:

  • contact with the public;
  • the exchange of money;
  • the delivery of passengers, goods, or services;
  • a mobile workplace, such as a taxicab;
  • employment in healthcare, social service, or criminal justice;
  • working alone or in small numbers;
  • working late at night or during early morning hours;
  • working in high-crime areas;
  • guarding valuable property or possessions; or
  • working in community-based settings, such as drug rehabilitation centers and group homes.

Assuming your workplace involves some of those factors, when does a workplace violence incident constitute a violation of the General Duty Clause?  The Directive provides the following elements of a violation: (1) the employer’s failure to keep its workplace free of a foreseeable workplace violence hazard; (2) the hazard was recognized explicitly or because it occurred in a recognized high-risk industry; (3) the hazard was causing or likely to cause death or serious physical harm; and (4) there was a feasible, useful means of correcting the hazard.

Guidance on Assessing Your Risk

The updated Directive advises employers to assess their worksites to identify methods for reducing incidences of workplace violence, and counsels employers to develop and implement a well-written workplace violence prevention program. It goes on to suggest that employers implement engineering and administrative controls, and train employees regarding reducing incidences of workplace violence.

Appendix A to the Directive provides a list of potential methods for reducing workplace violence that employers should consider. Among other methods, the appendix suggests provisions that a comprehensive workplace violence prevention program should include, like a policy statement, a hazard assessment and a security analysis. The appendix also provides examples of engineering controls, including assessing plans for new construction to eliminate or reduce security risks; installing and maintaining alarm systems and other security devices, including metal detectors and 24-hour close-circuit recording equipment; limiting access to the worksite; and installing bright, effective lighting. Examples of administrative controls include conducting a workplace hazard analysis; training employees as to workplace violence; establishing liaisons with local police and state prosecutors; and requiring employees to report all assaults or threats to a supervisor or manager.

You should consider OSHA’s guidance in developing and implementing a workplace violence prevention program. Make sure your employees know that they do not have to tolerate potentially violent behavior, and they need to report any such behavior. However, when you get to the suggested engineering and administrative controls, be sure to balance them against other laws governing your workplace, including state, local, and federal privacy laws and safety and building codes and standards.


“Do You Kiss Your Mother With That Post?” Second Circuit Rules on Foul Facebook Post about Employer

Angry person behind computerThe Second Circuit Court of Appeals stepped in to support the NLRB’s finding that an employee’s profanity-ridden social media posting about his employer (and his employer’s mother) was not so offensive that it went beyond the protections of the NLRA for union-related activity. This decision again shows the wide latitude given to employees to engage in what in the past may have been considered insubordination.

The Facts.

The defendant, Pier Sixty, is a catering company. Around the time of the incident, its employees were engaged in a union organizing campaign. Mr. Hernan Perez, a server, felt that his supervisor, Robert McSweeney, had spoken to him and some other servers fairly harshly about their work. On his next break, Mr. Perez used his phone to post a charming message on his own Facebook page. The message called his supervisor a “nasty mother f*****” and went on to say “F*** his mother and his entire f***ing family” (although Mr. Perez substituted the real letters in his words instead of asterisks—this is a family-friendly blog). He ended the message with “Vote YES for the UNION!!!!!!” The post was publicly accessible, and Pier Sixty learned about it. Subsequently, Mr. Perez was fired.

Mr. Perez and the union filed unfair labor practice charges with the NLRB claiming he had been terminated for protected concerted activities. An administrative law judge found in favor of Mr. Perez, and a panel of the NLRB affirmed that decision. Pier Sixty appealed to the Second Circuit.

What the Second Circuit Said.

Pier Sixty initially argued that the NLRB decision was not valid due to the recent finding that the NLRB’s acting general counsel, Lafe Solomon, served in violation of federal law (see our related blog post). The Second Circuit dismissed this argument by finding that the defendant failed to raise that defense at the NLRB panel stage and therefore waived that argument.

The court then turned to the substance of Mr. Perez’s post and whether it should be protected. The opinion recognized that there are situations where an employee engaged in potentially protected activity under the NLRA may act in such an abusive manner that he or she loses the protection of the act. The court held that the proper standard to be used in evaluating the comments should be the “totality of the circumstances” test found in recent social media cases.

Under that standard, the court first stated that although the message was “dominated by vulgar attacks” on the supervisor and his family, the subject matter of the message included workplace concerns and was part of a “tense debate over managerial mistreatment in the period before” the union election. Second, the court found that the employer consistently tolerated profanity among its workers. Specifically, the employer had not previously disciplined employees for using the “f word” and other expletives and racial slurs. There was no evidence that Pier Sixty had ever discharged an employee solely for the use of offensive language. The court found that it was reasonable for the administrative judge to decide that Mr. Perez’s comments “were not a slur against [the supervisor’s] family, but rather, an epithet directed to [the supervisor] himself.” The court also found it significant that although no server had ever been fired for profanity before, Mr. Perez was fired only two days before the union election.

Finally, the court held that because the comments were on Facebook, it was not an outburst in the immediate presence of customers and did not disrupt any catering event. The court noted that social media is “a key medium of communication among coworkers and a tool for organization in the modern era.” The opinion also found significant that Mr. Perez mistakenly thought his Facebook page was private and took down the post three days later when he learned the public could see it. In conclusion, the Second Circuit ruled that the NLRB was not in error in finding that Mr. Perez’s post, although “vulgar and inappropriate,” was not so egregious as to not be protected under the NLRA.

Does this open the floodgates for cussing out supervisors?

Admittedly, the facts of this case would have most of the public feeling that Mr. Perez’s profanity-filled post should have gotten him fired. However, this opinion seems to show that the courts are becoming more tolerant of what, in the past, would have been considered offensive language. Part of the problem here was that the employer did not enforce any rules against profanity in its own workplace. If you don’t want your employees cussing, be sure to discipline them for doing so—especially if it is in front of customers. Another lesson from this case appears to be that the NLRB and some courts are taking the stance that social media posts are the equivalent of a worker standing on a box holding up a sign saying “union”—and that those comments, even if vulgar and insubordinate, will be allowed some protection. It looks like we may be in for some fairly interesting cases in the future—ones that may have to be edited for tender ears.

Thawing the ICE: Using Internal Audits to Reduce Form I-9 Exposure

Diverse coworkersAs the 100-day mark of President Trump’s tenure approaches, it’s clear that the new administration intends to take a tough, aggressive approach to immigration enforcement – and employers are sure to feel the heat. The President has already taken a number of measures designed to strengthen employer compliance with the H-1B and other legal work visa programs. And administration officials have repeatedly emphasized that the laws prohibiting the employment of unauthorized workers will be enforced vigorously.

Among other things, U.S. Immigration and Customs Enforcement (ICE) is expected to step up the use of Form I-9 administrative audits, its primary tool for investigating worksite immigration compliance. An employer hit with a Form I-9 audit can incur heavy fines and other sanctions if ICE finds that the employer is using unauthorized workers or has not properly completed Form I-9’s for all of its employees. As noted in a prior post, the U.S. Department of Justice recently issued a new regulation that significantly increases the fines that may be assessed for Form I-9 violations.

For this reason, you should consider conducting an internal audit of your Form I-9s before ICE shows up to investigate. A proactive audit gives an employer an opportunity to identify and correct errors in its Form I-9s and get any missing Form I-9s completed before it’s staring down the barrel of ICE’s gun. These audits, if properly handled, are viewed favorably by ICE and can greatly reduce your potential exposure. In fact, ICE has recently published guidance specifically designed to help you structure and implement these audits appropriately.

If you’re thinking about an internal audit, keep these key points in mind:

  • The individual conducting the audit needs to be thoroughly trained in Form I-9 procedures, but also independent from your regular Form I-9 verification process. Consider whether it would be best to use an in-house HR professional or an independent third party to conduct the audit. Don’t use anyone who’s involved with the routine completion of your Form I-9s and may be hesitant to address any deficiencies. And, because thorny, unanticipated issues can sometimes arise, it’s advisable for the auditor to have access to legal counsel.
  • You may audit your entire workforce or a representative sample. However, if you choose to audit the Form I-9s of some subset of your employees, be careful how you select the group to be audited. Choosing an audit pool based on citizenship status or ethnic background constitutes impermissible discrimination and must be avoided.
  • Make sure your employees are informed about the audit in advance. Explaining what you are doing, and why, before you get started can go a long way in reducing employee anxiety about the audit. A good way to alleviate your employees’ concerns is to make it clear that the audit is not government mandated, but part of your internal compliance efforts.
  • Initially, the auditor should develop a list of all current and former employees for whom the employer should have Form I-9s and compare that list to the employer’s original forms. The existing Form I-9s should then be reviewed for completeness and mistakes. If a current employee’s Form I-9 is missing—or is in such poor shape that it doesn’t actually show that the employee was verified—the employer should complete a new Form I-9. If an audit reveals that employees with temporary work authorization have not been timely re-verified, those employees should be re-verified immediately.
  • Form I-9s that are incomplete or contain mistakes may be corrected, but this should be done in a completely transparent manner. Employers should not backdate the forms or do anything—such as use white-out to correct mistakes—that might conceal the corrections. According to ICE’s published guidance, the best way to correct an error or omission on a Form I-9 is to (1) draw a line through the incorrect information, (2) enter the correct or omitted information, and (3) initial and date the corrected or omitted information. Employers are not allowed to make corrections to Section 1 of the Form I-9; if an error is discovered in that section, ask the employee to correct it.
  • Employers participating in E-Verify should understand that if an employee’s Form I-9 needs correcting – or is missing and must be completed – that does not mean that the employee should be E-Verified again. An employer’s Form I-9 obligations are separate from any obligations under the E-Verify program, and a current employee should be E-Verified only if the employer discovers that it inadvertently failed to E-Verify the employee in accordance with its E-Verify obligations.
  • Upon completion of the audit, the auditor should prepare a memorandum summarizing the entire process. In the event of an ICE investigation, this memorandum will provide valuable documentation of the employer’s proactive compliance efforts.

Given today’s immigration enforcement environment, it’s more important than ever for employers to satisfy their Form I-9 verification obligations. While an internal audit may not be a cure-all, it can help reinforce an employer’s compliance efforts and go far to reduce exposure in the event ICE comes calling.

Guess Who You Should Never Invite to Dinner? What We Can Learn From Sexual Harassment Claims in the News

Couple having coffeeSexual harassment—we have policies against it, we train people on how to prevent and report it, and yet still we have big news stories about it. In the last year, Fox News hit the headlines on this front multiple times–not only did the Chairman and CEO leave following a sexual harassment lawsuit, but now Bill O’Reilly is out in the wake of harassment allegations. Both men deny the allegations, and I have no opinion as to who is telling the truth. However, reading the various details that have come out compels me to opine about how people in power should behave at work.

A caveat: I am not here to comment on most of what is alleged against these two Fox News powerhouses. However, both cases included allegations that the person in power asked a subordinate employee to dinner, and it was perceived as a purely social invitation. Some might say what is the harm in asking a subordinate on a date? Dinner is only dinner, and we are both adults—he or she can say no. Therein could lie the problem and the point of this post.

A Quick Primer in Sexual Harassment Law

Under Title VII of the Civil Rights Act, sexual harassment is:

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature . . . when submission to or rejection of this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance or creates an intimidating, hostile or offensive work environment.

Basically, lawyers put harassment claims into one of two buckets: hostile work environment and quid pro quo. A hostile work environment may arise when a work environment has a lot of sexual comments, kidding, teasing, or worse. It can be created by anyone—boss, coworker, vendor, customer, etc.—although the cases in which the boss is the one making the sexually charged jokes or comments are harder to defend.

On the other hand, a quid pro quo claim (meaning “this for that”) typically involves someone with power requiring something of a sexual nature from a subordinate. The classic example was the casting couch—“sleep with me and I will give you the job.” What a lot of people forget is that just asking for the sexual favor (or perceived sexual favor) may be enough to support a quid pro quo claim. And what is a sexual favor? Asking someone to dinner? A single invitation may be okay, but several invitations or one invitation combined with other allegations of sexually suggestive comments or behavior may be grounds for a claim.

Here are two basic rules about social invitations to keep you out of the sexual harassment spotlight.

Rule #1: Don’t Date or Try to Date Your Subordinates.

You are the boss. When you ask your subordinate employee to a non-business related one-on-one dinner, he or she doesn’t view it as a purely social invitation—their job depends on it. You are the boss, and telling you “no” could have repercussions. You have all the power and this invitation can be viewed as an order.

Rule #2: If You Break Rule #1, It Rarely Ends Well.

The horse is out of the barn once you have asked your subordinate out on what may be perceived as a date. Let’s consider some scenarios.

Scenario A: Boss Jane asked Tom, her associate, to go to dinner. Tom either ignored the invitation or said no. No harm, no foul—right? Wrong. The next day Tom makes a mistake, and Jane chews him out for it. Jane has arguably just delivered on the implied threat that if Tom didn’t have dinner with her there would be consequences. It doesn’t matter how big a mistake Tom made, she is now potentially a defendant in a sexual harassment case.

Scenario B: Tom goes to dinner but just has dinner. He takes an Uber home with no goodbye kiss (even if Jane didn’t ask for one). Tom makes a mistake later, Jane chews him out—see Scenario A.

Scenario C: Tom accepts Jane’s invitation and thinks she is the best thing since sliced bread. He is very interested in pursuing a social/sexual relationship with Jane and so it begins. A month (or a year) later, Tom breaks it off. He makes a mistake (see Scenario A), or Jane is not as nice to him or as helpful to his career as when they were sleeping together (again, Scenario A).

So We Have to Be Robots Rather than Human Beings?

First, you can be a human being and not date your subordinates. Dating, or even attempting to date, subordinates is risky and bad HR, and your labor lawyers will tell you not to do it. Second, I am not saying that there is never a time when you and a subordinate can share a meal—even dinner. However, if you are the boss, you need to be careful both for your and the company’s sake. Some guidelines:

  • There is safety in numbers. Ask the subordinate to have dinner with you and your spouse. If the subordinate is married or has a significant other, invite both of them. If there is no spouse handy, include another colleague. Make clear that this is not a sexual overture.
  • Meet at the restaurant. Driving together to a restaurant smacks of a date and not a business relationship.
  • Lunches are safer and less likely to be misconstrued.
  • When you and a subordinate are traveling, if you can’t bring the client along, be sure to meet in the hotel lobby and not at someone’s room. Be careful about appearances, and keep it professional.
  • Have a business reason for why the dinner should occur. Dining with a subordinate without any actual connection to work can be problematic.

Whether or not your dinner invitation to a subordinate is entirely business related, you are the boss, you hold all the power in the relationship, and you are the potential target in a harassment claim. A sexual harassment claim is rarely filed only against the company—the alleged harasser is a separate defendant and could have personal liability. You need to be careful—make sure your subordinate does not misinterpret your intention, and protect yourself and your company.

And NYC Makes Three: Massachusetts, Philadelphia, and New York City Ban Salary Inquiries

New York CityNew York City will soon become the third jurisdiction to enact laws barring employers from asking a job applicant about former salaries. The goal? To eliminate one of the alleged sources of wage disparities between men and women in the workforce. NYC’s actions come on the heels of legislation in Massachusetts and Philadelphia.

The new bill, approved by the New York City Council, will amend the New York City Human Rights Law and make it illegal for an employer to inquire about the salary history of a prospective employee. The new bill will also make it illegal for an employer to base a potential employee’s salary on his or her salary history unless the potential employee volunteers the salary information. The new law will go into effect 180 days after it has been signed into law by the New York City Mayor, who has already expressed his support for the bill.

What You Can’t Do in NYC

Under the new law, an employer will be barred from:

  • Asking questions relating to a potential employee’s prior salary. Period. You can’t ask the applicant, the applicant’s current/former employer, or any current/former agent or employee of the former employer; and
  • Searching for former salary, benefits, or other compensation information through any publicly available source.

What You Can Still Do in NYC

Even under the new bill, a potential employer is allowed to:

  • Consider salary, benefits, and other compensation information if an applicant reveals this information voluntarily and without prompting; and
  • Discuss expectations regarding salary, benefits, or other compensation.

Penalties include a fine of up to $125,000 for an unintentional violation of the law and a fine of up to $250,000 for a “willful, wanton or malicious” violation. If a potential employee brings a civil lawsuit, then he or she will be eligible for back-pay, compensatory damages, and attorneys’ fees as well.

What to Do

Employers should start reviewing their policies and procedures now in order to eliminate any questions regarding salary history. Employers should also ensure that the human resources department and any employees who conduct interviews know not to raise the subject of an applicant’s current or former salary, benefits, or other compensation. You may want to train interviewers on what to do if an applicant volunteers prior salary information—to make sure that same applicant doesn’t later claim he or she was prompted to do so. Finally, you probably want to beef up your recordkeeping on why you didn’t hire someone so it is clearly not related to their prior salary or refusal to provide it.

From the Tinfoil Hat Files: Plaintiff Sleeping on the Job Claims Sensitivity to Electromagnetic Voltage

Sleeping at a desk

The 7th Circuit, in a short opinion issued April 6, zapped a plaintiff’s claim that he was terminated in violation of the ADA based on his condition of being overexposed to electromagnetic voltage at his job. Mr. Hirmiz, a desk clerk at a Travelodge hotel, was caught on video sleeping during a fight that broke out among guests in the lobby. He was fired. Mr. Hirmiz sued the hotel claiming that his employer failed to accommodate his disability–hypersensitivity to electromagnetic voltage. He also alleged that his termination was in retaliation of his filing a complaint with OSHA that the hotel had high-voltage levels. The lower court dismissed his case because he failed to show that he was actually disabled under the ADA and could not show that his OSHA complaint played any role in the termination.

Judge Posner, in a fairly short opinion, agreed with the lower court’s dismissal. He noted that there is a scientific debate about whether allergies to electromagnetic voltage are a physical disorder or a psychological one. The judge pointed out that if it is a psychological disorder, the symptoms might not rise to the level of substantially limiting a major life activity, which is required to qualify as a disability under the ADA. The analogy Judge Posner used is the fear of black cats—a psychological disorder that likely wouldn’t qualify. The 7th Circuit opinion noted that Mr. Hirmiz didn’t provide any proof to show that he was suffering from such an impairment.

On the retaliation claim, Judge Posner found that Mr. Hirmiz had not sought any accommodation for his alleged disability and didn’t file any charge with the EEOC until after he was fired. He couldn’t show any causal link between the OSHA complaint and his termination (in fact, OSHA tested the hotel and found all levels to be normal). The hotel had a valid reason, unrelated to his alleged disability, for firing him—-he was sleeping on the job. As such, the 7th Circuit affirmed the dismissal of his case.

This decision shows that although it may seem like courts take a broad view of what constitutes a disability, plaintiffs still have to meet the burden of showing that they suffer from an impairment that substantially limits a major life activity. Sometimes a sleeping employee is just that—-a sleeping employee.

Don’t Be Chatty about FMLA Leave

gossiping coworkersIf you’re not careful, a casual reference to an employee’s FMLA leave might give rise to an FMLA interference claim. A recent Florida case, Holtrey v. Collier County Bd. of Commissioners, reminds us that you can get into trouble—and violate an employee’s rights—despite proper record keeping if an employee with access to those records discloses sensitive medical information about another employee’s FMLA leave.

Basic FMLA Rules

Generally, eligible employees are entitled to up to 12 weeks of FMLA leave in a 12- month period and they get to return to their position at the end of the leave. There’s also no question that FMLA regulations  require an employer to keep confidential an employee’s medical records and information related to an employee’s FMLA leave. In fact, you must maintain medical records separately from personnel records.

So What Happened in Florida?

Keep in mind that the facts as we know them are based almost entirely on the plaintiff’s version of events. With that caveat, Scott Holtrey applied for and received FMLA leave for a chronic and serious medical condition affecting his genito-urinary system. While he was out on leave, a manager apparently chatted with several of Holtrey’s coworkers about his medical condition. When Holtrey returned from leave, coworkers made jokes and obscene gestures about his medical condition in front of him. He complained and his employer (the Collier County Board of Commissioners) failed to remedy the situation, so he filed a lawsuit claiming the board violated the FMLA when his manager disclosed his medical condition and when his coworkers teased him about it. The board filed a motion to dismiss pointing out that Holtrey got all the leave he requested.

The court denied the board’s motion to dismiss, finding that Holtrey sufficiently pled an interference claim because he alleged that the board interfered with his FMLA rights by disclosing his confidential medical information resulting in a “work environment riddled with obscene gestures and jokes at his expense.” According to the court, the issue “is whether confidentiality is a right under the FMLA and whether Defendant interfered with that right.” The court noted that district courts conflict on whether disclosure of medical information constitutes an FMLA interference claim, but went on to note that the regulations make clear that “confidentiality of medical information is a right provided and protected under the FMLA.”

Guarding Confidential Medical Information

The court hasn’t said that Holtrey wins his FMLA interference lawsuit based entirely on the supervisor’s violation of his confidentiality. It has, however, found that Holtrey’s lawsuit to test that theory can continue. How could this be prevented? Maybe Holtrey’s manager didn’t need to know what was wrong with Holtrey—just that he was approved for leave. The Holtrey case is a good reminder to make sure that employees (especially managers) are thoroughly (and frequently) trained about their FMLA obligations.

Rule of thumb: Don’t chat about an employee’s medical condition — ever.

A Diamond in the Rough (Part 2): What the Eleventh Circuit Said about FMLA Retaliation Claims

family leaveMy last post talked about Diamond v. Hospice of Florida Keys and what the Eleventh Circuit said about FMLA interference claims. As promised, this post will look at the Diamond decision’s take on the FMLA retaliation front.

Refresher on Ms. Diamond’s Case

Recall that Jill Diamond, a social worker for Hospice of Florida Keys, was approved to take intermittent FMLA leave to care for her sick parents. She took some days here and there (hence the term “intermittent”) but then took about 10 days in March and April of 2014. Although Hospice approved her leave, it asked her for receipts to prove she was where she said she was, warned her that her high use of PTO could have an impact on her employment, and gave her a detailed explanation of how her leave was compromising the quality of care. Diamond asked the company to not request documentation beyond what the FMLA allowed and for examples of the compromised patient care her leave was causing. Five days after Hospice provided this explanation (about two weeks after her last leave), Hospice terminated Diamond for poor job performance.

Although the district court granted summary judgment to Hospice on both the FMLA interference and FMLA retaliation claims, the Eleventh Circuit reversed.

Retaliation Claims in the Eleventh Circuit

The Eleventh Circuit explained that to prove an FMLA retaliation claim, a plaintiff must show that her employer intentionally discriminated against her for exercising an FMLA right—and this can be proven with either direct or circumstantial evidence. Under the circumstantial standard, a plaintiff must prove that she suffered an adverse employment decision that was causally related to her exercise of her FMLA rights. Under the familiar McDonnell Douglas standard, the plaintiff must establish a prima facie case of retaliation and then present evidence that the employer’s articulated reasons for the termination were a pretext and the real reason was retaliation.

The Court concluded that Diamond established a prima facie case of retaliation. Diamond’s termination was only two weeks after her last day of leave, which established a close temporal proximity. Additionally, the company’s behavior (e.g., negative comments about the effect of Diamond’s absences on the quality of patient care) reinforced the causal connection between the FMLA leave and her termination.

The company offered a legitimate, non-retaliatory reason for the termination decision—Diamond had “disregard[ed] a direct order from her supervisor . . . and violat[ed] Survey guidelines by leaving the premises during a State Survey without notifying the Clinical Director.” Sounds pretty good. The next question was whether Diamond could present sufficient evidence that the reasons were not true or otherwise a pretext and the real reason was retaliation.

The Court found that Diamond presented sufficient evidence of pretext to survive summary judgment. First, the two reasons (i.e., disregarding the order, leaving the premises) were not even included in the “offenses” listed in Diamond’s termination memo. Second, Diamond had never been disciplined for any of the issues listed in the memo. Third, the HR manager testified that Diamond was terminated for poor performance rather than the two offered reasons. Fourth, the company conceded that the two offered reasons, standing alone, would not support the termination—but were considered in conjunction with her poor job performance. Finally, Diamond offered the evidence of the company’s comments about how her FMLA leave was impacting patient care, which potentially connected her leave to any performance deficiencies.

So What Have We Learned?

As we all know, employees who take FMLA are in a protected classification. While you have to manage the employee’s job performance—even during intermittent leave periods—make sure you focus on the performance and clearly separate it from the leave.

Some lessons from the Diamond decision:

  • If there is a performance problem, be sure to focus on performance while the employee is at work—not what they are not accomplishing because of the leave. In this instance it appears that Hospice tried to do that—focusing on Diamond’s patient care issues, insubordination, etc.—but the court felt that the temporal proximity (two weeks) and the negative comments created a genuine issue of fact for a jury.
  • Think long and hard before you terminate an employee without some intermediate steps. If you find that the employee is stealing and you always fire thieves, fire away. If, however, you find that the employee’s job performance is not great, you may need to issue a warning or two before you terminate. Although the employee could claim that the discipline was retaliatory, it is easier to defend a disciplinary decision.
  • Put some distance between the leave and any ultimate employment action. Firing someone on the heels of leave (or any protected activity) is dangerous. Address the behavior but take a measured approach. Not only will that give the employee a chance to improve (which could happen), it will put some time between the leave and the adverse action. This is more difficult with intermittent leave—because when does the leave actually end? However, it will always play better before the court to show that you disciplined for consistent behavior or performance problems—not all of which occurred during or on the heels of leave.

If someone’s FMLA leave is “contentious”—maybe it was challenging, caused some operational problems, etc.—look closely before taking a subsequent adverse employment action. Those actions almost always end up costing more than expected.


Discrimination Based on Sexual Orientation is Sex Discrimination Under Title VII: Seventh Circuit Takes Clear Stand

Gay pride flagOn Tuesday, the Seventh Circuit jumped into the Title VII sexual orientation discussion with both feet. In Hively v. Ivy Tech Community College of Indiana, a full-court reversed an earlier three judge panel decision, finding that discrimination based solely upon the employee’s sexual orientation is sex discrimination prohibited by Title VII. As the opinion recognizes, this finding goes not only against the Seventh Circuit’s own past rulings, but also against opinions from almost all the other Circuits (1st, 2nd, 3rd, 4th, 5th, 6th, 8th, 10th and 11th). In fact, two Circuits, the 11th and the 2nd, had ruled exactly the opposite in the past month.

So how did the Seventh Circuit come to this point? 

The majority opinion begins by pointing out that it does not have the power to amend Title VII, so it must look at whether the statute’s current language can be interpreted to include sexual orientation as protected. The Court pointed out that although the EEOC already has interpreted Title VII to prohibit sexual orientation discrimination, it is not bound by that agency’s position. Instead, the Court noted that while Congress may have had a certain definition of “sex” in mind when the law was passed, courts have expanded and adopted other definitions over the years—including to cover same-sex workplace harassment and discrimination based on failure to comply with gender stereotypes.

Ivy Tech did not renew the contract of Kimberly Hively, one of the professors. Hively alleged that the non-renewal was because she is a lesbian.  She offered two theories under which her sexual orientation discrimination claim should be covered under Title VII and the full Seventh Circuit agreed with both. First, under the comparative method a court would ask would the same decision have been made if she had been a man. Hively argued that if she had been a man married or living with a woman, as opposed to a woman married or living with a woman, she would not have been terminated. The Court agreed that such comparative analysis would show sex discrimination. The Court went on to note that by being a lesbian, Hively failed to comply with the female stereotype in America by not being heterosexual. While other courts (and even the Seventh Circuit panel in its earlier opinion) had held that there was a distinct line between a gender non-conformity claim and one based on sexual orientation—the Hively majority opinion concluded that no line exists —it is all sex discrimination.

Hively’s second theory was that discrimination based upon sexual orientation should be prohibited based on an associational theory. In Loving v. Virginia the Supreme Court ruled that restricting the freedom to marry solely because of racial classifications violates the Equal Protection Clause. Since the Court recognized that protection for race, then Title VII should also prohibit discrimination on the basis of national origin, color, religion or the sex of the person associating with an employee.

Finally, the Seventh Circuit discusses how their decision must be considered against the backdrop of recent Supreme Court decisions striking down statutes prohibiting homosexual intimacy (Lawrence v. Texas), statutes excluding same-sex partners from the definition of spouse (United States v. Windsor) and prohibiting same-sex marriage (Obergefell v. Hodges). The Court recognized that there is contrary authority to their current stance, but stated “this court sits en banc to consider what the correct rule of law is now in light of the Supreme Court’s authoritative interpretations, not what someone thought it meant one, ten, or twenty years ago.”  The Court concluded that it is “common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex.”

Judge Posner has an interesting concurring opinion that delves deeper into how history and time should cause changes in statutory interpretation. The dissent follows the other circuits in holding that the courts should not change the scope of Title VII—that is up to Congress.

So what is an employer to do?

As noted in the opinion itself, this decision is currently an outlier among the federal circuits. However, it sets up a split that will almost surely have to be decided by the Supreme Court. The decision again shows that there is a fine line (one that the Seventh Circuit refused to recognize) between discrimination against someone because they do not meet a gender-stereotype and discrimination based on sexual orientation. Employers should remind everyone that all employees, male or female, should be treated equally in the workplace. We will likely be receiving clearer instructions on the definitions of claims under Title VII, but until that time, it is better to be safe than sorry.