EEOC Warns Employers Against Domestic Violence Discrimination

By: Alejandra Lara

In its recent guidance titled “Questions and Answers: The Application of Title VII and the ADA to Applicants or Employees Who Experience Domestic or Dating Violence, Sexual Assault, or Stalking,” the EEOC cautions employers against unwittingly violating Title VII and the ADA in addressing employment-related issues involving victims of domestic violence.

The EEOC reminds employers that while Federal law does not expressly protect domestic violence victims from employment discrimination, such victims may still be entitled to protection under federal employment discrimination laws.

In its guidance, the EEOC provides examples of situations where employers may violate Title VII by engaging in disparate treatment, or applying sex-based stereotypes to victims of domestic violence.  For example, an employer that terminates an employee victimized by domestic violence due to fear of the potential “drama battered women bring to the workplace” may engage in discrimination based on sex in violation of federal law.

The EEOC further warns employers to exercise caution before transferring or discharging domestic violence victims based on general concerns that they may pose greater workplace safety risks.  Instead, employers should seek alternate resolutions before taking adverse action, such as paying for workplace security or getting a temporary restraining order.  Even if such options are not effective, an employer should take adverse action against an employee only based on specific and concrete facts showing that the employee poses a threat to other employees.

Further, the EEOC guidance highlights situations in which an employer may violate the Americans with Disabilities Act (“ADA”) in treating employees and applicants adversely based on actual or perceived impairments resulting from domestic or dating violence.  An example of this includes refusing to hire a domestic violence victim “based on a concern that she may require future time off for continuing symptoms or further treatment of depression.”  The ADA may also require an employer to provide employees reasonable accommodations; such as where a victim of sexual assault requests unpaid leave to get treatment for depression and anxiety, but has no accrued sick leave and is not covered by the Family and Medical Leave Act.  In certain situations the employer may have to modify its leave and attendance policies to accommodate the leave request, or risk violating the employee’s rights under the ADA.

Many of the scenarios discussed in the EEOC’s Q&A’s are straightforward and may surprise few employers.  Yet the guidance highlights the agency’s interest in protecting victims of domestic violence, and signals to employers that the EEOC will be paying close attention to these issues.  Finally, while Federal law offers limited protection to domestic violence victims, a handful of States have specific laws either directly protecting victims of domestic violence from employment discrimination, or requiring employers to give employees time off to attend court proceedings, obtain protective orders and/or seek services for the effects of domestic violence.  Employers are well advised to consult the laws of their individual States and otherwise tread lightly when dealing with victims of domestic violence.

 

Management and Human Resources Personnel May Not Find Protection Under Title VII’s Anti-Retaliation Provisions

By: Frank Nardulli

On January 21, 2013, the U.S. Supreme Court denied a request for appeal filed by a former loss prevention specialist who claimed that she had been unlawfully terminated in retaliation under Title VII of the Civil Rights Act of 1964 because she had opposed her employer’s handling of a sexual harassment investigation.  Brush v. Sears Holding Corp., 466 Fed. App’x 781, 2012 WL 987543 (11th Cir. March 26, 2012), cert. denied, 2013 WL 215521 (U.S. Jan. 21, 2013) (No. 12-268).  The appellant specifically challenged the Eleventh Circuit Court of Appeals’ reliance on the “manager rule” when it affirmed the dismissal of her claim.  A majority of circuit courts have adopted some form of the “manager rule,” which has significant impact on the application of Title VII and other claims against employers by management and other personnel charged with performing internal investigations or ensuring compliance with state and federal law.

Under Title VII, employers are prohibited from retaliating against employees who have opposed an unlawful employment practice or because they have participated in an investigation of discrimination.  In order to establish a prima facie claim of Title VII retaliation, it is necessary that a plaintiff establish that he or she engaged in such “protected activity.”

Under the so-called “manager rule,” an employee is not considered to have engaged in “protected activity” under Title VII’s anti-retaliation provisions if they disagree with or oppose the actions of an employer in the course of his or her normal job duties.  In other words, if it is the employee’s job to investigate claims of discrimination or ensure legal compliance, they are not afforded protection from discharge or other adverse actions for conduct that is within the scope of their employment.  For example, a Human Resources employee who disagrees with a corrective action taken pursuant to a discrimination investigation and is later discharged for “insubordination” will not be protected by Title VII’s anti-retaliation provisions.  As the name suggests, in most instances, the rule is commonly applied to management employees, but it is also applied frequently to compliance officers and human resources employees.

In order for such an employee to be found to have engaged in a “protected activity,” they must cross the line from being an employee performing their job to an employee making a personal complaint or otherwise opposing an unlawful action, such as by assisting another employee in filing a charge with the EEOC or refusing to carry-out a discriminatory employment action.  Merely challenging the method, manner, or adequacy of an employer’s internal investigation or making an internal report of a potential statutory or retaliatory violation is not a protected activity.

An understanding of the “manager rule” is valuable for all employers since it has been accepted by a significant number of circuit courts (the Fifth, Sixth, Eighth, Tenth, Eleventh, and arguably the Ninth) and district courts.  Further, its application is not limited to Title VII.  In addition to Title VII retaliation claims, the “manager rule” has been applied to claims under the Fair Labor Standards Act, the Americans with Disabilities Act, the Uniformed Services Employment and Reemployment Rights Act, the Family Medical Leave Act, the Sarbanes Oxley Act, and Title IX.  In fact, the rule originates from the Tenth Circuit’s decision in McKenzie v. Renberg’s, Inc., 94 F.3d 1478, 1486 (10th Cir. 1996), a FLSA retaliation case.

While the “manager rule” is a useful tool for employers dealing with complaints of retaliation by management or human resources personnel, employers should remember that these employees are still covered by Title VII’s anti-retaliation provisions.  Though it is doubtful that such an employee could bring a retaliation claim under Title VII’s participation clause, a management or human resources employee may still have a claim if they complain about an unlawful action in a manner that is not consistent with the scope of their employment, such as by making their own complaint of discrimination or opposing an action that they reasonably believe to be based on unlawful discrimination.

U.S. Supreme Court to Define Who is a Supervisor Under Title VII

By: Joshua D. Rinschler

In a development that could have far reaching implications for employers, the U.S. Supreme Court has agreed to hear a case, Vance v. Ball State University, in which the central issue is the definition of “supervisor” for purposes of determining an employer’s liability for harassment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”).  Under Title VII, if the alleged harasser is a supervisor, liability is generally imputed to the employer (unless the employer can show they it had an effective anti-harassment policy that the plaintiff unreasonably failed to utilize).  On the other hand, if a hostile work environment is created by co-workers, not supervisors, the employer is liable only if the plaintiff proves that the employer failed to take reasonable measures to stop the harassment, a considerably more difficult standard for plaintiffs.

Although determining whether an employee is a “supervisor” is important in many cases, neither Title VII nor Supreme Court case law specifically defines the term.  However, various circuit courts have crafted their own definitions of “supervisor” and two primary definitions have emerged.  The First, Seventh and Eighth Circuits define a “supervisor” as an employee who possesses the power to make “consequential employment decisions” such as decisions about hiring and firing, promotions and demotions, and disciplinary actions.  In contrast, the Second, Fourth, and Ninth Circuits (as well as the Equal Employment Opportunity Commission) have adopted a broader definition, holding that an individual qualifies as an employee’s supervisor if the individual:  (1) has authority to undertake or recommend tangible employment decisions affecting the employee; or (2) has authority to direct the employee’s daily work activities.  Under this broader definition, far more employees are “supervisors” and, as a result, may potentially subject their employers to vicarious liability.

In Vance, the plaintiff worked in Ball State University’s catering department.  She alleged that another employee, Davis, subjected her to racially discriminatory remarks.  According to the plaintiff, Davis directed her work and was, therefore, a “supervisor.”  The district court granted summary judgment to Ball State, holding that Davis was not a supervisor because she did not have the power to hire, fire, or discipline Vance.  The Seventh Circuit affirmed.

Whether the Supreme Court, in deciding Vance and resolving the split among the circuit courts, adopts a narrow or expansive definition of “supervisor” will have a significant effect on employer exposure in harassment suits.  If the Supreme Court adopts a broader definition, the pool of employees who can potentially subject their employers to vicarious liability will be significantly greater, likely resulting in more suits against employers.  Moreover, it will be more difficult for employers to prevail at the summary judgment stage of litigation, because a more fact-based inquiry will be needed to determine whether someone is a supervisor.  While it is relatively straightforward to show whether an employee is responsible for hiring, firing, promotions and the like, the broader standard requires a more detailed examination of the employee’s role.

Oral argument is scheduled for November and a decision is expected early next year.

Are Partners Protected by the Provisions of FEHA and/or Title VII?

By: Pascal Benyamini

According to the California Court of Appeal, a partner in a partnership is protected under the provisions of the California Fair Employment Housing Act  (“FEHA”)  if the partner complains that the partnership is retaliating against the partner because the partner complained about unlawful discrimination or harassment by the partnership against employees of the partnership.  In Fitzsimons v. California Emergency Physicians Medical Group, the California Court of Appeal drew a distinction between a partner alleging discrimination, harassment or retaliation by the partnership against the partner versus the partner complaining that the partnership is retaliating against the partner because the partner complained about unlawful discrimination or harassment by the partnership against employees of the partnership. Say that again?

Here’s what happened in the Fitzsimons case.  The plaintiff (a woman partner in the medical practice) claimed that she was retaliated against for reporting that certain male officers and agents of the partnership had sexually harassed female employees.  So, the issue was not whether the plaintiff could sue the partnership for sexual harassment against herself as an employee, but whether plaintiff could sue the partnership as a non-employee based on retaliation for complaining that employees of the partnership were sexually harassed.  The Court held that under the FEHA, the partner can maintain such an action, even though the partner is not deemed an employee of the partnership.

The Court drew a distinction between the provisions of Title VII and the FEHA by highlighting that Title VII and the FEHA differ significantly.  The Court explained that Title VII prohibits employers from retaliating against employees or applicants for employment, whereas the FEHA prohibits employers from retaliating against any person who opposes or challenges unlawful employment practices, such as discrimination or harassment.  In Fitzsimons, the plaintiff was regarded  as “any person” who opposed harassment of female employees by the officers and agents of the partnership.

Moral of the story: just because a partner is not regarded as an employee of the partnership, the partner still can sue the partnership for retaliation under the FEHA.  The case is attached here: Fitzsimons v. California Emergency Physicians Medical Group.