Recently in Retaliation Category

September 22, 2014

EEOC's attack on garden-variety severance agreements suffers a potentially MAJOR setback

Earlier this year, the EEOC filed a federal lawsuit against CVS in which it claimed that drugstore chain "conditioned the receipt of severance benefits for certain employees on an overly broad severance agreement set forth in five pages of small print." Specifically, the EEOC took issue with several common provisions that you guys probably use in your severance agreements:

  • a general release;
  • a non-disparagement obligation;
  • a confidentiality provision;
  • a covenant not to sue; or
  • a cooperation clause

But don't go throwing your severance agreements in the trash just yet.

More after the jump...

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Continue reading "EEOC's attack on garden-variety severance agreements suffers a potentially MAJOR setback" »

September 5, 2014

Final Score: HIPAA 1 - Retaliation 0

See how a federal appellate court shut out a plaintiff's claims of retaliation after she was fired for forwarding confidential documents to herself, purportedly to preserve evidence for an age-discrimination lawsuit filed by a former coworker.

What I did there, you see that?

After the jump...

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Continue reading "Final Score: HIPAA 1 - Retaliation 0" »

July 25, 2014

EEOC shows no goodwill to Goodwill Industries: $100K for retaliation

Thumbnail image for eeoclogo.pngJust in case you thought that the United States Equal Employment Opportunity Commission uses a soft touch towards any business that may discriminate -- let alone a charity.

Earlier this week, the EEOC announced here that Goodwill Industries will pay $100,000 to settle a long-standing retaliation lawsuit.

In its lawsuit, the EEOC charged that Goodwill retaliated against a worker by firing her after she testified on behalf of another Goodwill employee in a previous federal sex and age discrimination lawsuit.

Ladies and Gentlemen: This EEOC does not mess around!

February 18, 2014

Bad things happen when management laments to HR that black people are ugly

teeth.pngJust a reminder that some managers still engage in really stupid behavior.

I was reading this case about an HR Manager of a dentistry practice.

Following an interview between a dentist in her practice and an African-American woman, the dentist allegedly commented to the HR Manager that the person would not be hired, as there were already too many blacks in Lewisville. The HR Manager then supposedly responded that "race is irrelevant." 

And, after the HR Manager told another member of management what had transpired, the manager stated that there were too many blacks in Lewisville and that they were ugly.

Shortly thereafter, the company sacked the HR Manager, to which she responded that her termination was retaliatory; i.e., for complaining about her former employer's discriminatory actions.

In defending the lawsuit, the defendants first contended that the plaintiff had failed to establish that she had complained about discrimination.

Since, all that is required to demonstrate a complaint about discrimination is an understanding that the plaintiff is protesting discriminatory conduct, the plaintiff responded to the defendants' argument, "Like, duh." that her discussion with management was to advise the company of the wrongness of the hiring dentist's conduct and cause him to change his course of action.

Not surprisingly, the court accepted this argument.

Like, duh.

Undeterred, the defendants argued that the plaintiff could not connect her comment to her termination. The plaintiff responded that the proximity in time between her comment and her termination would suffice. Further, she argued that the defendants' reasons for firing her were pretextual, especially in light of Defendants' chief financial officer's statement that the plaintiff had been terminated because "she hired too many blacks."

Good gawd!

The defendants argued that it had a number of non-discriminatory performance-related reasons for terminating the plaintiff's employment, and those may be true. However, allegations of racist statements attributed to multiple members of management is also a very good reason to settle a case.

And increase the sensitivity training budget.

(But then again, if the allegations in this particular case are true, I don't know that any amount of training would fix such a systemic problem of prejudice).

February 12, 2014

Are lots of your severance agreements retaliatory? EEOC says yes.

Thumbnail image for Thumbnail image for EEOC.jpgWhen your business offers a severance agreement to a departing employee, does it contain:

  • a general release;
  • a non-disparagement obligation;
  • a confidentiality provision;
  • a covenant not to sue; or
  • a cooperation clause

Well, if it contains any one (or more) of these provisions, head over to Jon Hyman's Ohio Employer's Law Blog right away to learn about a new lawsuit that the EEOC has filed in which it alleges that each of these common severance-agreement provisions amounts to retaliation.

If the EEOC prevails here and in subsequent similar actions in other jurisdictions, the effects would be game-changing.

So, definitely go to Jon's blog for more information.

February 5, 2014

Employee claims discrimination, then her friend gets fired. Is that retaliation?

BFF.jpg

Back in January 2011, when I had only one child and an Aston Martin savings fund, the U.S. Supreme Court decided Thompson v. North American Stainless, LP. In that case, the Court held that an employer violates Title VII of the Civil Rights Act if it takes action against an employee who is in the same "zone of interest" as another employee who files a Charge of Discrimination with the United States Equal Employment Opportunity Commission.

In Thompson, a company received an EEOC Charge of Discrimination and allegedly fired the employee's fiancé in response. The Supreme Court held that, if true, this set of fact would amount to retaliation.

Now, fast forward to 2014. I have four children, I'm two Happy Meals away from declaring bankruptcy, and, last night, I dined on the leftover ketchup packets.

Meanwhile, the EEOC has filed an action on behalf of a woman who claims that she was fired because a co-worker, who happens to be her very good friend, complained about retaliation at work.

Does the fired friend have a claim for retaliation?

According to a New Hampshire federal court (opinion here), she may:

The complaint alleges that Mulcahey was a close friend of Wilkins, the individual who engaged in the protected conduct. The two women worked together at a prior company, and Wilkins was influential in procuring Mulcahey's job with Fuller Oil. On Mulcahey's desk at work she displayed birthday and mother's day cards from Wilkins alongside pictures of Wilkins's daughter and the two women together. The complaint also alleges that Fred Fuller knew of this close friendship. Fuller knew that the two women spoke frequently and spent time together out of work - as demonstrated by his statement about setting up a "play date" with the two women and Wilkins's daughter. When Fuller wanted to contact Wilkins, he asked Mulcahey about her whereabouts and requested her personal email address from Mulcahey. This relationship, as pled, exists somewhere in the fact-specific gray area between close friend and casual acquaintance. Although I could not say that such a friendship definitively supports a successful claim, I also cannot say as a matter of law that it does not.

Let's put the Thompson test aside for a sec. There's something really messed up if you're even considering firing anyone (other than the alleged harasser) as a response to an employee complaint of discrimination. 

Certainly not a move I'd recommend to a client.

January 16, 2014

And we have an early contender for worst employment-law decision of 2014

roughlegal.jpg

That may be sugar coating it a bit.

A county employee, who applied for a lateral transfer, and ultimately received that transfer, was able to convince two judges on a federal appellate court that the transfer was discriminatory.

That's right. An employee may have a discrimination claim for receiving the specific transfer he requested.

Here's what the two-judge majority wrote in this opinion:

[W]e conclude that under certain circumstances, a voluntary or requested transfer may still give rise to an adverse employment action...We emphasize that the key focus of the inquiry should not be whether the lateral transfer was requested or not requested, or whether the aggrieved plaintiff must ex tempore voice dissatisfaction, but whether the "conditions of the transfer" would have been "objectively intolerable to a reasonable person."

Let me stop there for a second to add that the plaintiff in this case testified that he viewed the transfer as improving his potential for career advancement. Still, that didn't appear to matter much to the Sixth Circuit Court of Appeals:

Indeed, an employee's opinion of the transfer, whether positive or negative, has no dispositive bearing on an employment actions classification as "adverse."

For what it's worth, one judge did dissent. I'm on board with his reasoning:

Deleon voluntarily applied for the job with full knowledge of its pros and cons, making it difficult to fathom how he could premise a claim of retaliation on the transfer alone. A retaliation claim requires the employer to do something bad to the employee--something that might "have dissuaded a reasonable worker from making or supporting a charge of discrimination." That concept cannot be bent and stretched to cover an employer's decision to grant an employee's request for a transfer. No reasonable employee in Deleon's position would have interpreted the transfer as an act designed to prevent him from exercising his rights against anti-discrimination.

And, thankfully, I practice in the Third Circuit Court of Appeals, where the employers I represent are not bound by the majority's decision here.

For more on this decision, check out Jon Hyman's post at the Ohio Employer's Law Blog.

December 2, 2013

Employee legally fired for complaining on Facebook about the boss' "creapy hands"

5cake.jpgGenerally speaking, those who wait five years to complain about perceived sexual harassment in the workplace, don't win lawsuits if they are eventually fired.

But what happens when the complaint takes the form of a status update on Facebook? Does that offer the employee extra protection?

Find out after the jump...

Continue reading "Employee legally fired for complaining on Facebook about the boss' "creapy hands"" »

November 25, 2013

Woman fired after getting sniffed by men 24 times may have a retaliation claim

nose.jpgPlay some Skynyrd, man!

(Just pretend the song is about reckless indulgences in the workplace, rather than drugs and needles and such, k?)

Well, this is a new one for me.

A woman claimed that she was employed as a leasing manager for four days. And during those four days, two male co-workers sniffed her 12 times each.

*** Carries the one, curses, grabs calculator ***

The woman further claimed that, shortly after she complained to her supervisor about the sniffing, she was fired without explanation.

Sounds like we may have viable retaliation claim: (1) complaint about sexual harassment; (2) termination; (3) complaint caused termination.

Amazingly, the United States District Court for the Northern District of Texas granted summary judgment to the employer, concluding that no reasonable juror in the woman's shoes would have viewed herself as a victim of sexual harassment. To paraphrase the lower court's logic: "It's not like these guys grabbed her or anything. And besides, it was harassment, not sexual harassment."

The Fifth Circuit Court of Appeals in this opinion was all like, "WTH!" Wait, the court actually said this:

We hold that there is a genuine dispute of material fact whether the maintenance men's behavior violated Title VII....The sniffing and hovering over a woman, by two men, in a small, confined space could be viewed by a reasonable jury as harassment based on Royal's sex. Indeed, it is difficult to imagine the maintenance men sniffing and hovering over Royal if she were a man.

Remember, sexual harassment can take many forms in the workplace. When you train your employees, and especially your supervisors who are tasked with receiving complaints of sexual harassment, educate them about the many ways in which an employee may be sexually harassed.

Including sniffing.

November 12, 2013

Placing do-not-hire notes in personnel files of employees who file EEOC charges is dumb

icyhot.jpg

If I ever handled a plaintiff's case again, at deposition, I would be sure to take a page out of the playbook of Texas employment lawyer, Mike Maslanka:

Ask the manager who decided to fire the plaintiff whether he's eligible for re-hire. An unprepared manager might blurt out, "Of course not; he's suing us." Say hello to a retaliation claim.

I thought of Mike as I read this recent Texas Court of Appeals case about an employer that admitted at trial that, its receipt of EEOC right to sue letters "prompted" it to place the following notes on the Charging Parties' personnel files:

"Please note he is not eligible for rehire ever. Tried to sue us. Simply tell him, 'sorry but we have nothing for you at this time. Please try again. Have a nice day.' Not for rehire. Per Ben G."

Folks, that's stupider than the time in high school that a combustible combination of curiosity and boredom led me to disregard the warning on the container of Icy Hot balm, about where not to rub the balm.

The notes in the personnel files was enough for the appellate court to uphold the jury finding of both retaliation and malice.

Remember, that anti-retaliation laws apply not only to current employees, but also former ones too. And if there's anything a jury hates more than straight-up discrimination, it's retaliation, which happens to be the most popular claim filed with the EEOC.

September 24, 2013

Court ok's firing EAP employee upset with company's workplace investigation

J. Neil DeMasters worked as an EAP counselor for Carilion Clinic. During the course of his employment, a co-worker came to him complaining to have been a victim of sexual harassment. Mr. DeMasters relayed his co-worker's complaint to HR. Then he was fired.

Does Mr. DeMasters have a possible retaliation claim? Nope.

DeMasters' statements to Carilion's human relations department qualify as protected oppositional conduct. There are no allegations in this case that DeMasters played any role in Doe's sexual harassment complaint beyond counseling Doe through the EAP and relaying Doe's complaint to Carilion's human relations department. Merely ferrying Doe's allegations to Carilion's human relations department is in no sense oppositional, and DeMasters did not engage in protected activity in so doing.... DeMasters intended only to relay Doe's complaints to Carilion, not voice his own opposition to any unlawful employment practice, such as the sexual harassment or hostile work environment alleged by Doe.

Even the subsequent criticism Mr. DeMasters voiced concerning the company's handling of the subsequent investigation was not enough to create a viable claim.

DeMasters' statements to Carilion that Carilion was mishandling Doe's complaints are not protected oppositional conduct. DeMasters' complaints about the manner in which Carilion handled Doe's investigation do not concern a practice made unlawful under Title VII. Because DeMasters' criticism was directed to Carilion's processing of Doe's complaints, rather than the substance of those complaints, it is not actionable oppositional conduct.

Thinking about firing the employee who is critical of the way you investigate employee complaints of harassment? Do so at your own risk. Instead, for more egregious workplace harassment complaints, consider using a trained outside investigator to look into them. It's generally money well spent. 

The case is DeMasters v. Carilion Clinic.

September 4, 2013

New NJ law bans retaliation against employees asked to give pay information

discrimred.jpgCash, Rules, Everything, Around, Me
C.R.E.A.M.
Get the money
Dollar, dollar bill y'all

[Did you know that your favorite blogger has been to not one, but two Wu-Tang concerts? 36 chambers of death, son. I lyrically perform armed robbery; way harder than Justin Bieber. Now, to the 3/4 of you I just lost there, let's get back on topic...]

On August 29, the same day that he signed the State's new workplace social-media-privacy law into effect, Governor Chris Christie signed legislation strengthening was is already a very strong law: New Jersey's Law Against Discrimination (LAD).

The LAD amendment forbids employers from retaliating against employees who are asked to disclose information regarding pay and benefits, where the information sought could assist in a discrimination action against the employer.

However, as Pamela Wolf at Wolters Kluwer notes, "nothing in the new law requires an employee to disclose such requested information about the employee herself to any other employee or former employee, or to any authorized representative of the other employee or former employee."

The new law takes effect immediately. So, protect ya neck!


August 16, 2013

What could possibly go wrong with a sham workplace investigation?

Magnifying_Glass.gif

Well, if it means that the employee diagnosed with anxiety and depression -- the one who requested a reasonable accommodation to perform her job -- gets fired. Well, then, a lot.

That's basically what happened in this recent federal court case out of Kentucky.

You see, normally, a court won't second guess an employer's decision to terminate an alleged sexual harasser, following a complaint and investigation. And when the alleged sexual harasser later sues the employer for retaliation, well, I don't care if she belongs to every protected class on the EEOC's checklist, court's tend not to sympathize with sexual harassers.

But, as the Kentucky court noted, it's a different story when the decision to terminate the alleged sexual harasser -- the one with the disability -- is made before the workplace investigation commences:

The Plaintiff has produced evidence that the Defendant's investigation regarding the sexual-harassment complaint against the Plaintiff was a cursory one...The fact that Smallwood drew up the paperwork necessary to terminate the Plaintiff prior to meeting with her and that she terminated the Plaintiff without further investigation even though the Plaintiff denied making the comment could lead a reasonable juror to conclude that the Defendant did not actually fire the Plaintiff because it found that she sexually harassed a co-employee.

So take it from your old buddy, Eric. If an employees come to you complaining that so-and-so sexually harasser her, please take the complaint seriously. However, don't just assume that the complaint against so-and-so is the gospel. Conduct a fair and impartial investigation to determine whether the complaint has merit.

Image credit: By Dan Pelleg (own work (based on Windows "Webdings" font)) [Public domain], via Wikimedia Commons

July 29, 2013

"You can take your proposal and shove it up your ass and fire me and I'll see you in court."

Just another Monday here at The Employer Handbook. It's how we roll.

Over the weekend, I read this opinion from the Seventh Circuit Court of Appeals. From the opening paragraph, it had my attention.

After working at A.B. Data for four months, Michael Benes charged the firm with sex discrimination. The EEOC arranged for mediation in which, after an initial joint session, the parties separated and a go-between relayed offers. In a separate-room mediation, each side (including attorneys and assistants) stays in its own room. The intermediary shuffles between rooms. Many mediators believe that this approach prevents tempers from erupting, allows each side to discuss its own position candidly without the adversary's presence, and facilitates careful deliberation and compromise. But on receiving a settlement proposal that he thought too low, Benes stormed into the room occupied by his employer's representatives and said loudly: "You can take your proposal and shove it up your ass and fire me and I'll see you in court." Benes stalked out, leaving the employer's representatives shaken. Within an hour A.B. Data accepted Benes's counterproposal: it fired him. He replied with this suit under 42 U.S.C. §2000e-3(a), the anti-retaliation pro- vision of Title VII of the Civil Rights Act of 1964. His claim of sex discrimination has been abandoned.

Noting that firing Benes would have been appropriate, if during the mediation, "Benes had punched or shot the employer's representatives" -- you think? -- the Seventh Circuit concluded that even though "his misconduct was a less-serious breach of the mediation protocol," firing Benes was still for employee misconduct, and did not amount to retaliation.

Indeed, just because an employee files a charge of discrimination, or complains internally about discrimination, doesn't insulate him from potential punishment. Retaliation encompasses action that would dissuade a reasonable worker from making or supporting a charge of discrimination. As the Seventh Circuit noted, canning an employee who shoots off his mouth at mediation, not so much:

"The prospect of being fired for an egregious violation of a mediator's protocols would not discourage a reasonable worker from making a charge of discrimination or from participating in the EEOC's investigation."

I often raise this issue when offering "respect in the workplace" training for employees. That is, just because an employee complains about discrimination in the workplace place doesn't mean that he has carte blanche to violate work rules. The complaint only protects the employee from discipline because of the complaint. If, instead, that employee decides to stop performing job duties, or responds with "shove it up your ass and fire me and I'll see you in court," now you'll know what to do.


July 24, 2013

900,000 reasons not to judge a book by its cover

LunchYou've probably heard of this It's Just Lunch, a Hallandale Beach-based company, even though you may not realize it. I'll give you a hint. Have you flown recently? Yeah, that's right. It's Just Lunch is a matchmaking service that advertises around page 55 of the in-flight magazine of just about every domestic airline.

According to the company's About IJL page, It's Just Lunch was founded in 1991 by a resourceful, professional woman. Now go to the home page, scroll down the page to the right and look at the pictures of the It's Just Lunch "Dating Specialists." Notice anything in common?

Yeah, the EEOC did too. So, it filed this complaint in federal court.

According to this press release, the EEOC agreed to settle a sex discrimination lawsuit it filed against It's Just Lunch for $900,000. That's a lot of lunches!

The EEOC charged in its suit (Case No. 0:13-cv-61518-WPD, filed in U.S. District Court for the Southern District of Florida) that It's Just Lunch (IJL) refused to hire men as dating directors and inside sales representatives. The EEOC also alleged that IJL fired Lynda Twist, its human resources director, in retaliation for her opposition to IJL's sex-based hiring practices.
The EEOC filed suit after first investigating the case, and then attempting to reach a pre-litigation settlement through its conciliation process.
According to the terms of the consent decree settling the suit, which was approved by the U.S. District Court Friday, IJL will pay approximately $900,000 to settle the lawsuit, including a payment to Twist of $130,369. The remaining settlement funds will be paid into an account that will be distributed to a class of qualified male job applicants who applied for dating director and inside sales representative jobs with IJL from 2007 to the present, but whom IJL did not consider for hire. The agreement also requires IJL to implement a detailed applicant tracking system, provide training to managers, human resources personnel and employees, and provide quarterly hiring reports to EEOC for three years.

You can find a copy of the full, 29-page consent decree here.

Sex stereotypes and barriers to hiring are at the top of the EEOC's hit list. Please use this settlement as a reminder to your hiring managers that making personnel decisions based on preconceived notions, rather than pure talent, is not only stupid, but a sure-fire way to find yourself in the government's cross-hairs or otherwise embroiled in a private discrimination lawsuit.