"11th Hour Change of Heart" Forms the Basis for FMLA Claim

As a result of the economic downturn, an employer sought to lay off various staff. A supervisor indicated that it would be “an obvious choice” to eliminate an employee in the communications department because the employee’s duties had changed significantly and the employer had stopped work on one of his core campaigns. After the employee was selected for layoff, a communications director notified the employer of his need for time off for knee replacement surgery. The employer then made a last-minute decision to lay off the communications director in lieu of the previously selected employee. The communications director sued, claiming that the employer had violated the Family and Medical Leave Act (FMLA). The U.S. Court of Appeals for the Seventh Circuit found that the record contained sufficient evidence to create triable issues where: (1) the employer had originally identified a co-worker for termination, but then selected the communications director shortly after he announced intention to take FMLA leave; (2) management backdated a memo to make it appear that the termination decision was not influenced by the leave request; and (3) the employer gave an inconsistent explanation regarding the termination. When an employer decides to terminate an employee not originally slated for layoff, it should make sure that the employment action is accurately and timely documented and that the employer’s thought process is consistent, precise and well-reasoned.

Shaffer v. American Medical Association, No. 10-2117 (7th Cir. Oct. 18, 2011)

Employee’s ADA Claim Fails due to Inability to Establish that she was a “Qualified Individual”

An employee sued her employer claiming that she was: (1) discriminated against based upon her disability, (2) retaliated against, and (3) subjected to a hostile work environment when the employer failed to provide her with a disabled-access parking spot. The employee suffered from fibromyalgia and other health problems, which ultimately led to her taking considerable time off of work. In at least one year, she was absent for 59 percent of the time. In response to her claim, the employer indicated that the employee’s attendance was entirely unpredictable and that she rarely gave advance notice of her absences. The U.S. Court of Appeals for the First Circuit determined that the employee’s claim failed from the inception because she was unable to establish that she was a qualified disabled individual, or, more specifically, that she was able to perform the essential functions of her job. The provision of a disabled parking space was not determinative, because it was questionable whether the space would have enabled her to perform the essential functions of her job. Because being present at her workplace was an essential function, and the employee’s history of absences demonstrated that she was incapable of regularly being at work, she could not overcome this initial hurdle. The court similarly determined that the employee was unable to establish a hostile work environment or retaliation based upon the same facts. Disability discrimination claims are on the rise. Employers must ensure that their policies and practices comply with the ADA and/or corresponding state anti-discrimination laws.

Colon-Fontanez v. San Juan, No. 10-1026 (1st Cir. Oct. 12, 2011)

Court Erred in Excluding “Me Too” Evidence Relating to Employee’s Claims of Sexual Harassment and Discrimination

The California Court of Appeals recently issued an important ruling about the use of "me too" evidence in discrimination and harassment cases.  More ›

Worker Denied Ability to Maintain Discrimination Claim Based on Sexual Orientation

After working on the 2007 Country Music Awards production, a theater producer complained to his union that one of his co-workers harassed him based upon his homosexual orientation. Shortly thereafter, according to the employee, the union local stopped referring him for jobs. The employee sued, alleging violations of the Tennessee Human Rights Act and Title VII of the Civil Rights Act of 1964, as amended, for gender discrimination and retaliation, and also alleged violation of the union’s duty of fair representation. The U.S. Court of Appeals for the Sixth Circuit dismissed the employee’s claims because neither federal nor the applicable state law prohibit discrimination based upon sexual orientation. Courts have uniformly held that the reference to “sex” in Title VII does not refer to sexual orientation. The employee had attempted to circumvent those decisions by arguing that he was discriminated against for failing to conform to sexual stereotypes, a claim which has been found to be viable under Title VII. The court rejected this argument, finding that the employee’s claim was simply one for discrimination based on sexual orientation, which is not prohibited under Tennessee or federal law. Employers—especially those that conduct business in numerous states—must be mindful of both state and federal anti-discrimination laws, which are often different in terms of what constitutes a protected characteristic. More than 20 states prohibit discrimination based upon sexual orientation. Read more about this case here.

Hostile and Boorish Bullying Does Not Support Race-Based Hostile Work Environment Claim

A Caucasian employee severely injured when an African-American co-worker dropped a 940-pound steel coil on him sued his employer, arguing that his co-worker’s bullying behavior created a race-based hostile work environment under the Civil Rights Act of 1866 (42 U.S.C. § 1981). The U.S. Court of Appeals for the Seventh Circuit held that although the co-worker’s conduct was hostile and boorish, because the employee was not the target of racial slurs, epithets or overtly race-related behavior, the conduct was insufficient to create an abusive working environment. Furthermore, the court found it significant that the employee did not report his concerns to the proper official as required under the employer’s harassment policy. While the employer in this case escaped liability, employers should, in order to avoid lawsuits, be proactive and create positive work environments where employees are not subjected to abuse for any reason.

Title VII Caps Damage Awards per Plaintiff, not per Claim

A female employee sued her employer under Title VII of the 1964 Civil Rights Act (Title VII) after being fired, asserting three separate claims: (1) sex discrimination in setting of sales quotas, (2) retaliation for making complaints about discriminatory treatment on the basis of her sex, and (3) discriminatory termination. The jury found in favor of the employee on all three claims and awarded $200,000 in compensatory damages on each claim, $150,000 in back pay for both her retaliation and termination claims, and $2.4 million in punitive damages, for a total of $3.45 million in damages. The district court applied the U.S. Supreme Court’s prohibition on double recovery in back pay to her termination and retaliation claims and reduced the back pay award from $600,000 to $150,000. The district court then applied Title VII’s damages cap, which limited the amount for compensatory and punitive damages and reduced the employee’s award from $2.4 million to $200,000. On appeal the employee sought $200,000 in damages on each of her successful Title VII claims because they were “separate, distinct, and independent causes of action,” which could have been filed separately. The U.S. Court of Appeals for the Fifth Circuit upheld the trial court’s reduction of the damages award based on the Civil Rights Act of 1991, which amended Title VII to allow jury trials and compensatory and punitive damages. The statutory language provides that a “complaining party” may recover compensatory and punitive damages under Title VII, and the amount awarded “shall not exceed, for each complaining party” a designated amount based upon the size of the employer. The compensatory and punitive damages cap on the employer here was $200,000. In light of this case, when assessing whether to settle or litigate discrimination complaints, employers need to be mindful that Title VII caps damages per plaintiff, not per claim. Additionally, employers need to be cognizant of the fact that its number of employees determines the amount of the Title VII damages cap.

Terminated Employee Denied Accommodations has Triable ADA Claims

An employee was on a flexible work schedule for a number of years to accommodate her disability, chronic fatigue syndrome (CFS). After being assigned to a new supervisor, the employee was served with written reprimands for attendance and deprived of other accommodations that eased her symptoms, including a flexible work schedule. The employee took medical leave from her job because of the stress caused by her supervisor’s actions and was subsequently terminated. The employee claimed that her employer had violated the American with Disabilities Act (ADA) when it failed to provide her with reasonable accommodations for her disabilities and that it retaliated against her by terminating her employment. The U.S. Court of Appeals for the First Circuit held that although attendance is an essential function of any job, whether a reasonable accommodation, such as a flexible work schedule, will allow an employee to maintain good attendance must be considered by the employer. With the recent implementation of new regulations addressing the ADA, employers must carefully consider whether reasonable accommodations are available that will aid employees in performing the essential functions of their job, including accommodations that will adequately address employee attendance.

Title VII Provides Retaliation Claim to son Based upon Father’s Protected Activity

Two employees, a father and son, sued their employer under Title VII of the Civil Rights Act of 1965, as amended (Title VII), which makes it unlawful for an employer to retaliate against an employee for engaging in protected Title VII activity. Both the father and the son alleged that they had been subjected to adverse employment actions because of the father’s prior complaints of discrimination. The district court granted summary judgment to the employer on the son’s claim, relying on earlier federal decision that had interpreted Title VII as requiring a plaintiff to allege retaliation “because of his own protected activity.” The U.S. Court of Appeals for the Fifth Circuit reversed, recognizing that the U.S. Supreme Court had rejected that interpretation of Title VII just months later in the case of Thompson v. North American Stainless, LP, 131 S. Ct. 863 (2011), where the high court found that a husband was entitled to bring a Title VII claim based on retaliation that he suffered because of protected Title VII activity by his wife. Relying on the Supreme Court’s holding in Thompson that Title VII permits an employee to bring a claim based on retaliation suffered because of protected activity by a “close family member” who is also a co-worker, the Fifth Circuit remanded the son’s claim for reconsideration. Employers should remember that in light of Thompson, any adverse actions taken against an employee who has complained of discrimination or against any of that employee’s family members could be grounds for a Title VII retaliation claim.

Former Employee must Arbitrate Discrimination Claim Because the Employment Agreement Constituted a Valid Contract

An employee signed an employment agreement four years after she began her employment with the employer. The agreement contained an arbitration clause that set out a three-step process for resolving employment disputes, including discrimination claims. The employee sought to have the agreement invalidated based on lack of consideration and lack of notice as to the arbitration provision. The U.S. Court of Appeals for the First Circuit held that the employee’s agreement to the alternative dispute resolution process in exchange for the employer’s promise to waive certain defenses satisfied the consideration requirement for contract formation. The court also held that the plain text of the agreement provided the employee with adequate notice that employment discrimination claims would be subject to arbitration. Accordingly, the court ruled that the employee was required to arbitrate her claims. In light of this case, employers should consider utilizing a carefully drafted arbitration clause in their employment agreements as a viable alternative to being forced to litigate discrimination claims.

Forum-Selection Clause in Employment Agreement Enforced in Title VII Case

An employee signed an employment agreement with her employer. The agreement set the terms and conditions of the employee’s employment and included the following forum-selection clause: “The parties agree that all claims or causes of action relating to or arising from this Agreement shall be brought in a court in the City of Richmond, Virginia.” The agreement also included a choice of law provision designating Virginia law as controlling. Subsequently, the employee was terminated and she sued in Florida. The employee alleged that the employer unlawfully terminated her after she announced that she was pregnant, and that she was fired in retaliation for objecting to her employer’s unlawful conduct. The U.S. Court of Appeals for the Eleventh Circuit dismissed the employee’s claims because they were brought in an improper venue. The court held that all claims arising directly or indirectly from the employee’s employment relationship with the employer had to be brought in a court in Richmond due to the forum-selection clause in the employment agreement. This case exemplifies how forum-selection clauses allow employers to defend against potential lawsuits in the state they prefer.