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.

To Protect and Serve: Privacy Concerns for Public EmployersDo public employees have private lives? In other words, just how much can a public employer base decisions on an employee’s off-duty conduct? The Ninth Circuit, in a recent opinion, disagreeing with both the Fifth and Tenth Circuits, has determined that the question still remains to be decided.

The Facts

In June 2012, Janelle Perez worked as a probationary police officer for the Roseville Police Department (RPD). A few months into her tenure, Perez and a fellow officer began an intimate relationship. At the time, both were separated but still married to their spouses. The coworker’s wife filed a citizen complaint alleging that inappropriate trysts had occurred while the officers were on duty. Internal Affairs investigated but found no evidence that Perez and her fellow officer had engaged in any on-duty sexual behavior.

Following the internal affairs investigation, RPD terminated her employment. Perez sued, alleging a number of claims, including constitutional violations of her rights to privacy and intimate association under the First, Fourth, and 14th Amendments. Perez’s claim was that the RPD could not terminate her based on the fact that it disapproved of her private, off-duty sexual conduct. The district court awarded summary judgment to the RPD and the individual defendants, finding that they were shielded by qualified immunity because Perez failed to establish a constitutional right to intimacy with her coworker. Perez appealed.

The Ninth Circuit reversed and remanded on the issue of privacy. The panel reiterated its prior holdings that the constitutional guarantees of privacy and free association bar the state from taking adverse employment actions based on private sexual conduct, unless the state can show that the behavior has a negative effect on job performance or violates a constitutionally permissible, narrowly tailored regulation. Ultimately, the panel decided that there existed a genuine factual dispute as to whether the RPD terminated Perez at least partially due to her extramarital affair. (Apparently there was some inconsistency among her superiors as to the basis for her discharge.)

Specifically, the panel pointed to Thorne v. City of El Segundowhich preserved a public employee’s privacy rights where termination was linked, in part, to private, off-duty sexual conduct. The Ninth Circuit found that in Perez’s case, as in Thorne, the RPD could not produce any evidence that the affair had an adverse impact on job performance, nor that any improper behavior occurred while Perez was on duty.

The Road Not Taken…

The Ninth Circuit explicitly rejected the approaches taken by the Fifth Circuit—the wife-swapping case—and the Tenth Circuit—another extramarital affair case. The court explained that the Fifth and Tenth Circuits both misinterpreted the Supreme Court’s Lawrence v. Texas, a decision on the right of sexual autonomy. The Ninth Circuit reasoned that Lawrence recognized the import of intimate sexual conduct within the canon of substantive liberties preserved by the Due Process Clause. Further, Lawrence made it clear that non-traditional was not tantamount to immoral.

Overarching Privacy Concerns

Notably, the Fourth and 14th Amendments’ protections of privacy are not applicable to private employers. Government and other public employees enjoy a constitutionally protected, “reasonable expectation” of privacy that their private counterparts do not. However, Perez, Thorne, and the flux of privacy cases broiling amongst the judicial circuits should still present concerns to private employers. Again, the Fourth and 14th Amendments certainly don’t apply in the private context, but there are still common law privacy interests that all employers should be wary of (i.e., intrusion upon seclusion and public disclosure of private facts).

Claims alleging violations of privacy are complex; they require case-by-case evaluations of a myriad of factors from the physical environment of the workplace, to employer policies, to employee conduct and knowledge. Notwithstanding, the takeaway from Perez is that expectations of privacy can be both tenuous and undefined. Nevertheless, there are still ways to insulate your company from potential claims:

  1. Establish a clear written policy. Whether you’re addressing workplace technology or fraternization amongst employees, develop a comprehensive policy that sets out your expectations. Figure out what private conduct could impact your business and address that conduct. By providing notice on the front-end, it becomes noticeably easier to combat employee expectations of privacy in areas that have been clearly addressed.
  2. Reinforce your policies. Acquiescence is one of the many ways that employer policies can be undermined. Reinforce policies through periodic restatements, warnings, and, if necessary, discipline.
  3. Confirm employee understanding of policies. When you first hire an employee or when you’re conducting an annual review, make it a point to have employees take time to read the policy and sign an acknowledgment form, outlining that they received it, read it, understand it, and consent to be governed by it.

The contours of privacy, and what employees can reasonably expect to be unassailable realms of their lives, are changing daily. Perez is yet another indicator that employers—both public and private—must be cautious, especially when considering off-the-job conduct in making job-related decisions.

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.