You Fired My Dad! Fifth Circuit Rules Title VII Retaliation Ban Does Not Cover Third-Party ClaimRetaliation claims in employment litigation have been on the rise for years. The typical scenario has an employee reporting some sort of alleged discriminatory act, either against them or a coworker, followed by the employer taking an adverse employment action against the reporting employee. We all know that Title VII prohibits retaliation against an employee who engaged in protected activity (e.g., reporting discrimination), so the employee can sue for the alleged retaliatory decision. But what if the person suffering the alleged retaliation is not an employee of the company? In James Simmons vs. UBS Financial Services, Incorporated, the Fifth Circuit recently addressed that situation.

Vendor Dad/Pregnant Daughter

Jo Aldridge was an employee of UBS. She filed an internal complaint with the company and, later, an EEOC charge for pregnancy discrimination. She and UBS settled that claim, and Ms. Aldridge resigned. However, Ms. Aldridge’s father, James Simmons, had a continuing relationship with UBS as a third-party seller of life insurance to UBS clients. Although he sometimes worked out of UBS’s offices, he was not a UBS employee. After his daughter’s pregnancy discrimination claim, UBS no longer let Mr. Simmons come to the UBS offices and eventually cut him off from all its clients. As a result, Mr. Simmons lost his job with the insurance vendor.

Getting to the Daughter Through the Father?

Mr. Simmons filed suit against UBS claiming that UBS retaliated against his daughter by “taking adverse actions” against her dad, a third-party vendor. UBS immediately moved to dismiss the case because Mr. Simmons was not an employee of their company. The district court agreed and dismissed the case because he lacked standing (the right to sue) under Title VII. Mr. Simmons appealed.

Who Fits in the Zone-of-Interest?

The Fifth Circuit looked to a 2011 United States Supreme Court case, Thompson v. North American Stainless, LP, to see what Mr. Simmons needed to establish to have standing under Title VII. In Thompson, the plaintiff and his fiancée both worked for the same company. Mr. Thompson’s future bride filed a sex discrimination claim against the company and three weeks later, the company fired Thompson. Thompson claimed that the company retaliated against him for his fiancée filing the discrimination charge. The Supreme Court held that a third party could file for a retaliatory act taken against them for a charge filed by someone else, even if the person suing wasn’t the employee who engaged in the protected activity. In doing so, the court established the “zone-of -interest” test: If you are a “person claiming to be aggrieved” you can sue for retaliation. The court noted two important points in holding that Thompson was in the zone of interest and had standing to sue for retaliation based on his fiancee’s protected activity: 1) Thompson was also an employee of the company; and 2) the company used Thompson’s termination to harm the fiancée.

Back to the Father/Daughter Issue in the Fifth Circuit

In the Simmons case, Mr. Simmons tried to claim that the Supreme Court in Thompson recognized that Title VII was intended to protect third parties from retaliation, even if they were not the reporting party or initial claimant of discrimination. What UBS argued, and what the Fifth Circuit adopted, was that the statutory language of Title VII clearly shows that it only protects employees or applicants for employment from discriminatory or retaliatory acts. To expand the zone-of-interest beyond actual employees could result in some “absurd” situations such as having a stockholder sue a company in retaliation for the company dismissing one of its key employees. Since Mr. Simmons was not his daughter’s co-worker, he did not have standing to sue for retaliation.

What Should I Do?

This case may have presented a rare fact pattern, but it shows how seriously courts take retaliation claims. As we have stated before, filing a claim of discrimination does not give an employee a free pass to get away with anything and you should not be so afraid of a retaliation claim that you don’t manage your employees. But once someone files a complaint, you should take an extra hard look at any subsequent adverse employment actions involving that employee. And, as the Simmons and Thompson cases show, employers should resist the urge to take actions against coworkers with close connections to the complaining party as well.

More Back to Work Thoughts: DOL Provides Tips on Accommodations Due to COVID-19As the country moves closer to fully opening businesses, the Department of Labor wants to remind all employers that their obligations under the Americans with Disabilities Act are still in place for workers with disabilities. The Job Accommodation Network (JAN), a free service provided by the DOL’s Office of Disability Employment Policy, published several strategies for businesses to implement creative solutions to allow workers with a disability to perform essential job duties. The publication is in response to increased requests from workers who have impairments that put them at higher risk for developing complications from COVID-19. Examples of those types of disabilities, according to the CDC, are people with cancer, chronic kidney disease, COPD, serious heart conditions, Type 2 diabetes and sickle cell anemia.

General Solutions for Limiting Possible Exposure

JAN recommends posting accurate information about how to prevent the spread of disease and suggests the use of a CDC infographic. They also suggest requiring employees to stay home if they exhibit symptoms of the illness. To encourage sick employees to stay home, JAN suggests that leave should be flexible. JAN also encourages workplaces to have employees wear a mask and educate their workers on proper mask care. Common spaces should be cleaned and disinfected frequently. Employers should also work with building maintenance to provide ventilation that reduces the risk of transmission.

In addition, you should implement social distancing measures. Stagger workstations and have a protective panel or shield between stations. You may need to restructure job duties to eliminate or reduce the frequency of tasks requiring face-to-face contact. Communications should be done using remote and virtual formats. Also, be mindful of hearing-impaired workers who may not be able to read lips through a mask.

JAN recommends trying to restructure jobs so that they can be done through telework or remotely. Employers should also try to stagger staffing so as to limit the number of employees in the workplace.

What If I Can’t Accommodate?

If an employer cannot provide the accommodations to reduce transmission or cannot allow an employee to work from home due to an undue hardship on the business, the employer should consider providing access to leave. JAN notes that some workers may be entitled to leave under the FFCRA or as a reasonable accommodation under the ADA (don’t forget about traditional FMLA either). For additional thoughts or solutions, employers are encouraged to contact JAN.

Can COVID-19 Claims Convince Commissions to Compensate? An Overview of Workers’ Comp and the CoronavirusIf you get COVID-19 at work, is it covered by workers’ compensation? Maybe. In Tallahassee, Florida, a school district denied a high school teacher’s COVID-19-related workers’ compensation claim. The reason? The district says he cannot prove he caught the virus while working. Meanwhile, it has been reported that thousands of federal employees have filed workers’ compensation claims with the U.S. Labor Department due to COVID-19.

As the COVID-19 pandemic progresses, workers’ compensation will be an area of law to watch, as there are sure to be new precedents established both federally and at the state level.

Workers’ compensation laws vary from state to state, however, generally to receive compensation a worker must be able to prove that an injury or accident occurred on the job. Statutes and case law have established various “occupational diseases” presumed to arise out of or in the course of employment, and those diseases are, therefore, compensable (e.g., mesothelioma or black lung disease). However, most states impose additional restrictions on “ordinary diseases of life” to which the public is exposed both at work and elsewhere. Under this line of reasoning, catching the flu is not an “injury” covered by workers’ compensation. However, there are certainly some occupations – such as healthcare or frontline workers – in which exposure to COVID-19 may be easier to trace directly to work conditions. Regardless, such claims will require high levels of proof and will inevitably lead to messy and prolonged administrative hearings.

State Guidance and Amendments Regarding COVID-19

To head off such complications, many states have issued executive orders or amended their workers’ compensation statutes to create a presumption of COVID-19 coverage for certain types of industries. To date, at least 16 states have amended laws or issued other guidance regarding COVID-19 and workers’ compensation claims. In Arkansas, Gov. Hutchison first issued an executive order easing the burden of proof on COVID-19 claims for first responders and frontline healthcare workers, and later issued an order classifying COVID-19 as an occupational disease. Illinois passed an amendment to its workers’ compensation law creating a rebuttable presumption that COVID-19 is compensable, and therefore covered, for first responders and frontline workers.  Washington state has gone even farther, changing its policy to provide additional benefits for healthcare workers and first responders who are quarantined by a physician or a public health office.

What does this mean for you?

That depends on your industry and the states in your footprint. If you receive a workers’ compensation claim from an employee who says he or she contracted COVID-19 on the job, make sure to do your homework. To start, check to see if your state has issued guidance or amended legislation. If so, make sure to read the guidance closely and follow any required procedures. If not, you may not want to deny a COVID-19 claim outright. What evidence does the employee have to show he or she contracted the disease on the job? If the evidence is reasonable, you may consider notifying your workers’ compensation insurance carrier to see if it has received (and possibly paid) similar claims.

One advantage to the workers’ compensation system is that, in most states, if an employee receives benefits under workers’ compensation, he or she cannot also sue an employer for negligence or other torts, absent egregious circumstances. This means that you should weigh your options when deciding whether to deny such a claim. Would accepting the claim prevent future liability? Or does the employee’s claim fail to produce any reasonable evidence that catching the disease was work-related?  Your best next step will depend on how you answer these and other questions.

Conclusion

Like every other aspect of the workplace, COVID-19 is throwing a wrench in workers’ compensation as we know it. The best way to make sure any claims are handled properly is to know your state’s policies, weigh your options, and make the most informed decision possible.