Well, you can forget about that “place at the table.” That’s for sure.
***ducks thought-leader mashed potatoes and change-agent stuffing***
In a decision issued last week (here), the National Labor Relations Board ruled that “the filing of an employment-related class or collective action by an individual employee is an attempt to initiate, to induce, or to prepare for group action and is therefore conduct protected by Section 7 [of the National Labor Relations Act].” So, for example, if you fire someone for filing a Fair Labor Standards Act lawsuit on behalf of himself and other similarly situated employees, then you’ve violated both the FLSA and the NLRA.
Yes, if an employer actually retaliates in that manner, shame on the company. However, two things pique my interest here:
Obviously, the easy solution is don’t discriminate and don’t retaliate. But, lawsuits are based on a series of allegations. And, what percentage of employment lawsuits actually result in a finding of liability? Thus, even the appearance of wrongdoing may be enough for a second bite at the apple with an unfair labor practice charge decided by an Administrative Law Judge.
Last year, I channelled Bill Clinton in this blog post about how courts rarely recognize a single incident or two as creating what the law deems a hostile work environment.
Yeah, about that.
In Boyer-Liberto v. Fontainebleu Corp. (opinion here), the full panel of the Fourth Circuit Court of Appeals concluded that two aggressive racial slurs made to an employee within a 24-hour period, may create a hostile work environment. (Here, the plaintiff, who is African-American, was twice called a “porch monkey.” And, each time, the harasser threatened the plaintiff).
Folks, let me give you a little free Friday HR pro tip:
If a female employee complains to a female manager that another male manager is sexually harassing her, it’s not ok to for the female manager to respond thusly,
“He’s a guy and you work with guys. Ignore it and smile.”
When I think about retaliation, I think about
that time I plastic-wrapped the judicial toilets after losing a motion to compel an employee who gets fired after complaining about discrimination to an HR Manager or the EEOC. These actions epitomize the “opposition” and the “participation” clauses of Title VII of the Civil Rights Act of 1964, the federal anti-discrimination statute.
By what about when an employee doesn’t go to HR, doesn’t complain to the EEOC, but, instead, simply tells a supervisor to stop sexually harassing her? If that employee is later fired, and she can establish that she was fired because she told her supervisor to stop, is that a winning retaliation claim? Continue reading
Geez! What’s gotten into me this week? Even by The Employer Handbook editorial standards, which are lower than Title VII’s religious accommodation undue hardship test.
[I’ll be here all week. Sorry.]
As I resist every urge to cheapen this further by resorting to silly puns and other double entendre, allow me to set the stage for you: Continue reading
Not exactly a happy workplace trinity, but it’s what fuels The Employer Handbook. That and Jolt-Cola Bombs.
The plaintiff in this case claimed that she was sexually harassed by her male supervisor for over a year. The court’s opinion details alleged comments and groping in vivid detail. (No recap here. I plan to keep my post PG, damn it! Ok, PG-13. You happy, now?). Whenever the plaintiff supposedly complained, her employer did nothing about the harassment.
So, finally, she decked him one.
That got the employer to take notice. Indeed, it determined that the plaintiff had been sexually harassed and it fired her harasser. Then, the company also fired the plaintiff.
“I see your ‘two free slurs’ rule, Fourth Circuit Court of Appeals, and I raise you one shout out to the Third Reich, alright Hoss?”
Ok, you got me.
The Fifth Circuit, which covers Louisiana, Mississippi, and Texas, didn’t actually use those words, exactly. But, what the Court did say in this opinion, was that an employee who complained to Human Resources about a Deputy Director, one who allegedly said “Heil Hitler,” could not reasonably believe that this single comment created a hostile work environment. Got that? When a manager allegedly praises the Nazis one time, that’s not against the law:
What the hell are you talking about, Eric? Why would we make an independent contractor sign a release of employment claims before starting work for our company?
So glad you asked. Although, I’m not sure I like your tone.
*** takes pills ***
Many years ago, Allstate Insurance restructured its business, where it decided to longer have employees; only independent contractors. So, it offered its employees a bunch of options. One option was a severance; another was the ability to convert to independent contractor status. Either way, the individual had to release all past and presented employment-related claims agains the company.
When the EEOC got wind of the conversion option, they cried retaliation.
Oh, if I had a nickel for every time I got this question from an employer, “Hey Eric. We have this pregnant employee and she is very close to term. We’re concerned that if she continues working all the way up to childbirth, she may harm herself or the fetus. Can we require her to stay home?”
Eek! Check out this recent press release from the EEOC in which the agency announced that it is suing an employer, which allegedly required a pregnant employee to take unpaid leave until she was cleared by a doctor indicating that she could work despite her pregnancy. The EEOC further alleges, when the employee failed to provide a release, and after she and her mother disputed the legality of the requirement, the employee was fired in retaliation.
So, under federal anti-discrimination law, the answer to today’s QATQQ is, generally, fiction.
Note: A United States Supreme Court majority opinion predicted that Title VII, which contains the Pregnancy Discrimination Act, would preempt state law, thereby absolving employers that complied with Title VII from liability for any fetal injury. (Although the concurrence was more skeptical). Further, that same case recognized a narrow safety exception that would allow an employer to remove a pregnant employee from the workplace; namely, in instances in which pregnancy actually interferes with the employee’s ability to perform the job.