Hunton Employment & Labor Law Perspectives : Employment Lawyers & Attorneys : Hunton & Williams Law Firm : Labor Law Legislative Updates

On December 6, 2011, just five days after it heard oral arguments in the case, the Eleventh Circuit Court of Appeals affirmed a victory for a transgender woman, Vandiver Elizabeth Glenn, who sued her former employer, the Georgia state legislature, for violating the Equal Protection Clause of the United States Constitution.  A three-judge panel unanimously affirmed a summary judgment for the plaintiff, who was fired from the General Office of Legislative Council for undergoing a gender transition.

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Thirty-four percent of adults in the United States presently qualify as obese under standards adopted by the Center for Disease Control.  Morbid obesity (defined as having a body weight more than 100% over the norm) and obesity caused by a psychological disorder are "disabilities" as defined by the Americans With Disabilities Act (“ADA”), according to the EEOC.  Lawsuits involving morbid obesity are on the rise and come in many shapes and sizes.  The most common involves a “substantially limiting” health condition such as diabetes, heart disease, and hypertension.  Others involve employers who assume an obese employee would pose a direct threat to the health and safety of him or herself or other employees if he or she were to carry out the essential functions of the job.

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California Governor Jerry Brown recently signed into law Senate Bill No. 559 (SB 559), which prohibits discrimination based on an individual’s genetic information.  While SB 559 significantly expands the protections from genetic discrimination provided under the federal Genetic Information Nondiscrimination Act of 2008 (GINA), at this time, its impact on most California employers is thought to be limited to the potential for greater damages to be awarded under it than under its federal counterpart.

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On October 3, 2011, the U.S. Supreme Court vacated the Ninth Circuit’s decision in Wang v. Chinese Daily News, Inc., 623 F.3d 743 (9th Cir. 2010), and remanded it “for further consideration in light of Wal-Mart Stores, Inc. v. Dukes, 564 U.S. ___ (2011).” The Supreme Court did not provide any further analysis of the Wang decision in its granting of the petition for a writ of certiorari.

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In the current economy, with unemployment over 9% and multiple applicants for every position, an out-of-work individual should be doing everything possible to get a new job, right? Perhaps, but not for purposes of “mitigation” under fair employment statutes.

On August 11, 2011, the U.S. District Court for the Western District of New York ruled that a fired employee alleging discriminatory discharge under Title VII had no obligation to enroll in vocational training in order to mitigate his damages from the alleged discrimination. EEOC v. Dresser Rand Co., No. 04-CV-66300, 2011 U.S. Dist. LEXIS 89466 (Aug. 11, 2011).

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On August 8, 2011, the Second Circuit issued a decision in Millea v. Metro-North Railroad Co., taking an expansive view of the Family and Medical Leave Act’s (“FMLA”) anti-retaliation provision.  Turning to Title VII for guidance, the Court held that the jury should have received an instruction that broadly defined the term “materially adverse action.”

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The national unemployment rate, as reported by the Department of Labor, has stubbornly remained at about 9% or higher for more than two years. As many of these unemployed individuals search for new jobs, some have purportedly been denied available employment opportunities simply because they were unemployed. Unemployment discrimination, as it is often called, is not currently prohibited under federal law. The EEOC and Congress, however, have taken steps focused on so-called unemployment discrimination that could affect how employers conduct their hiring processes.

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This week, the United States Supreme Court issued its decision in what has been called the “most important class action case in more than a decade.”  In Wal-Mart Stores, Inc. v. Dukes, et al., No. 10-277, 564 U.S. ___ (June 20, 2010), the plaintiffs, current and former employees of the Nation’s largest private employer, Wal-Mart, sought judgment against the company for injunctive and declaratory relief, punitive damages, and backpay, on behalf of themselves and a nationwide class of some 1.5 million female employees, alleging sex discrimination in violation of Title VII of the Civil Rights Act of 1964.

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A recent Tenth Circuit decision sends a strong message that the court takes seriously the jurisdictional prerequisite that plaintiffs exhaust their administrative remedies in a Title VII claim prior to taking a claim to court.  The process to do so is well-known -- before an employee can file a lawsuit alleging discrimination against his or her employer, he or she must file a charge with the U.S. Equal Employment Opportunity Commission (“EEOC”).  Requiring individuals to exhaust their administrative remedies prior to filing a lawsuit serves, hopefully, to eliminate facially meritless charges, facilitate internal resolution, and help avoid litigation.  This is often the case, as many charges filed with the EEOC never end up on a court’s docket.  But what happens if the parties are already enmeshed in litigation and the plaintiff claims that the defendant’s conduct during the course of that litigation is retaliatory?  Can the plaintiff amend his or her complaint to include that allegation?  Or must he or she go back to the EEOC and file a charge for that claim?  In McDonald-Cuba v. Santa Fe Protective Services, Inc., the Tenth Circuit held that the latter is true.  No. 10-2151 (10th Cir. May 9, 2011).  The Fourth came down the other way in a similar case.

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Disability discrimination claims have long been difficult for employees to pursue in court. Although employers are often grappling with reasonable accommodation and leave issues in the workplace, such issues have typically not spilled into the courtroom. One reason for that has been the difficulty in proving an employee has a “disability.” The final regulations issued by the EEOC in March 2011 could change all of that. The new regulations, interpreting the ADA Amendments Act of 2008 (ADAAA) expand the definition of “disability” and otherwise remove several impediments to pursuing lawsuits under the ADA. This should lead to an increase in ADA litigation.

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During the past 50 years, the American workforce has changed drastically. One of the most noticeable changes has been the absorption of immigrants into the workforce who do not speak English as their first language.

In response to the increased linguistic diversity of the workforce, many employers have implemented policies that limit or completely prohibit their employees from speaking languages other than English while at work. These so called “English-only” polices may violate the national origin protections of Title VII of the Civil Rights Act of 1964. Employers that implement these policies are at risk of being sued not only by employees who feel wronged by the policy, but also by the U.S. Equal Employment Opportunity Commission.

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A commonly used pre-employment screening method--conducting credit checks--has drawn increased scrutiny in recent months. Legislatures at the state and federal levels are considering bills that would limit employer use of credit checks. Moreover, two recently-filed lawsuits, one of which was filed by the EEOC, seek to challenge the use of pre-employment credit checks in hiring decisions. 

Only four states--Hawaii, Illinois, Oregon, and Washington--currently have laws regulating employer use of credit history data. Sparked by the downturn in the economy, fourteen additional states--California, Colorado, Connecticut, Indiana, Kentucky, Maryland, Missouri, Nebraska, New Jersey, New Mexico, New York, Pennsylvania, Texas, Vermont--are considering similar measures.

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Earlier this summer the House Judiciary Committee on the Constitution, Civil Rights, and Civil Liberties held hearings on H.R. 3721, a/k/a the “Protecting Older Workers From Discrimination Act” (POWADA), which was introduced in the wake of the Supreme Court’s controversial 5-4 decision in Gross v. FBL Financial Services, Inc.  In the decision written by Justice Clarence Thomas, the Supreme Court held that under the Age Discrimination in Employment Act (ADEA), a plaintiff pursuing a disparate treatment claim for age discrimination must prove, by a preponderance of the evidence, that the employee would not have suffered an adverse employment action “but for” his age.  The Court held that the text of the ADEA did not authorize “mixed motives” claims, and that the burden of persuasion does not shift to the employer, even when there is evidence that the plaintiff’s age was a motivating factor in the adverse decision.

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According to recent federal court decisions, a shareholder, director, or other individual holding a similar position in a corporation may find his or her job status disqualifies him or her from legal relief under many state and federal anti-discrimination laws should such individual believe that he or she has been the subject of unfair treatment in the workplace. In Kirleis v. Dickie, McCamey & Chilcote, P.C., No. 09-4498 (3rd Circuit July 14, 2010), the U.S. Court of Appeals for the Third Circuit affirmed a district court’s ruling that a law firm shareholder was not an “employee” of the professional corporation protected by federal and state anti-discrimination laws.

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The U.S. Court of Appeals for the Ninth Circuit recently held—consistent with other courts that have considered the issue—that “insurance agents are independent contractors and not employees for purposes of various federal employment statutes,” including ERISA, the ADEA, and Title VII.  In Murray v. Principal Financial Group, Inc., case number 09-16664, the panel unanimously affirmed a district court order granting summary judgment in favor of a purported employer because it found that the plaintiff was an independent contractor, not an employee entitled to the protections of Title VII.  The panel’s opinion clarifies the appropriate test for distinguishing between employees and independent contractors in the context of Title VII, and concludes that despite apparent precedent for multiple tests, there is, in fact, only one.

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An Indiana nursing home was found in violation of Title VII this month for acceding  to a resident’s request for white-only healthcare providers.  In Chaney v. Plainfield Healthcare Ctr., No. 09-3661 (7th Cir. July 20, 2010), a unanimous panel of the U.S. Court of Appeals for the Seventh Circuit reversed a lower court’s ruling in favor of the nursing home and held that this was a clear violation of Title VII.

The nursing home, Plainfield Healthcare Center (“PHC”), housed a resident who did not want assistance from black nursing assistants.  PHC complied with this racial preference by detailing on an assignment sheet, which employees received daily, that no black nursing assistants should enter the particular resident’s room or provide her with care.  The court held that this policy violated Title VII by creating a racially-charged and hostile work environment, as the assignment sheet unambiguously and daily reminded plaintiff, a black nursing assistant, that certain residents preferred no black nursing assistants, and that unlike white aides, plaintiff was restricted in the rooms she could enter, the care that she could provide, and the patients she could assist.

PHC argued that long-term care facilities have obligations to their clients that place them in a different position than most employers.  PHC further argued that Indiana regulations state that long-term care residents have a right to choose a personal attending physician and other providers of services, and that without the policy, PHC risked exposing black employees to racial harassment from the residents and therefore exposing itself to hostile workplace liability.  The court found all of these arguments unavailing, instead offering several alternative courses of action that PHC could have taken, such as:

• Warning residents before admitting them of the facility’s non-discrimination policy, and securing in writing each resident’s consent to the policy;
• Assigning staff based on race-neutral criteria that would minimize the risk of conflict;
• Advising its employees that they could ask for protection from racially harassing residents; and/or
• If racially-biased residents wished to employ white aides at their own expense, allowing reasonable access to those aides.

While this case is particularly relevant for providers of long-term care, it also serves as a reminder to all employers that if they cater to customers’ perceived racial preferences, they may be found in violation of Title VII.  Employers faced with customers who demand service-providers of a certain race or ethnicity should, in lieu of formulating policies that accede to such demands, seek the advice of legal counsel to devise solutions that will not run afoul of Title VII.

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On Monday, the United States Supreme Court ruled that claims brought by African American firefighters who had sued the City of Chicago alleging that a hiring test was discriminatory were not time barred.  Lewis v. City of Chicago, No. 08-974, 560 U.S. ___ (2010).  The City conceded that its use of the hiring test was unlawful, but argued that the firefighters claims were untimely.  Addressing only the statute of limitations issue, the Court issued a unanimous decision in favor of the firefighters, holding that the firefighters timely filed a disparate impact claim based on the continued use of the hiring test.

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Committees in both the House and the Senate heard testimony this week regarding the Protecting Older Workers Against Discrimination Act (H.R. 3721 and S. 1756).  Democrats introduced the Act last fall with hopes of restoring employees’ rights under the Age Discrimination in Employment Act (“ADEA”) by overturning the Supreme Court’s decision in Gross v. FBL Fin. Servs. Inc., 557 U.S. __ (2009).

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Think you are doing your pregnant employee a favor by taking her off a big account to give her some time “for herself”?  Think again!  You may just be opening yourself up for a lawsuit.

Most employers have never heard of Family Responsibilities Discrimination (“FRD”).  FRD is an umbrella term for workplace discrimination based on stereotypes about how employees with family caregiving responsibilities will or should act.  For example, an employer may assume that a new mother will not be as committed to her career or as reliable as she was before she had a baby.  Or an employer might believe that a mother “should” be home with her children and may refuse to give her assignments that require travel or late hours. The discrimination arises because the employer’s actions are based on stereotypical beliefs, rather than on the individual employee’s performance or own desires.  And family caregiving is not just limited to childcare.  In fact, an increasing proportion of caregiving is devoted to the elderly and disabled. As with childcare, women are disproportionately responsible for caring for their relatives, including parents, spouses, and other relatives.

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In a matter of first impression, the U.S. Court of Appeals for the Ninth Circuit recently held that whether a plaintiff with a claim under the Family and Medical Leave Act (“FMLA”) can recover front pay (and how much) is a question for a judge to decide, not a jury.  Under some statutes, such as Title VII of the Civil Rights Act, courts have express discretion to “order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement … or any other equitable relief as the court deems appropriate.” 42 U.S.C. § 2000e-5(g).  It is well established under Title VII that a court can decide to substitute front pay for reinstatement in some instances, such as when there is a significant degree of animosity between the parties or when reinstatement could displace other employees.

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In an order issued on February 9, 2010, a United States District Judge in Iowa sent a stark reminder to the EEOC that its statutory obligations to investigate and conciliate Title VII claims are not to be ignored.  More than three years after the EEOC filed its complaint alleging systemic sex harassment, the court, in its February 9 order, awarded Defendant CRST Van Expedited, Inc. ("CRST") $4.5 million in attorneys' fees and $460,000.00 in expenses as a prevailing party, following a finding that the EEOC abandoned its statutory obligations under Title VII.

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The Obama Administration announced on February 1, 2010, that it requested $385.3 million for the Equal Employment Opportunity Commission for fiscal year 2011.  In addition, the administration requested $162 million for the Civil Rights Division of the Department of Justice.  Significantly, the requests represent an $18 million dollar budget increase for the EEOC and a $17 million dollar budget increase for the DOJ Civil Rights Division.

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In a decision issued last week, the U.S. Court of Appeals for the 11th Circuit held that gender-derogatory words and conduct that are either severe or pervasive may state a claim of a hostile work environment, even when the words at issue are not directed specifically at the plaintiff. Reeves v. C.H. Robinson Worldwide Inc., 11th Cir. (en banc), No. 07-10270, January 20, 2010.

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The Supreme Court last week agreed to decide whether a California police department violated the privacy rights of an employee police officer by reading sexually-explicit text messages on the officer’s employer-issued pager.  The case, Quon v. Arch Wireless Operating Company, is on appeal from the Ninth Circuit, which ruled that in certain circumstances a public employee has a reasonable expectation of privacy in personal text messages -- even when those messages are sent on a device owned and provided by the employer. The decision is directly at odds with current employee privacy law, which generally holds that employees have no reasonable expectation of privacy in electronic communications on employer-provided electronic devices, and it adds to the list of headaches for employers adjusting to the exploding use of instant messaging in the workplace.

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Title II of the Genetic Information Non-Discrimination Act of 2008 (GINA) covering employment goes into effect on November 21, 2009.  GINA, which was enacted in May 2008, prohibits employers from discriminating on the basis of genetic information and from intentionally acquiring genetic information from employees or applicants.  The Act also imposes strict confidentiality requirements on employers, and requires them to segregate and maintain all such information in compliance with the Americans with Disabilities Act.

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On November 5, 2009, the U.S. Senate Committee on Health, Education, Labor, and Pensions held an initial hearing on the Employment Non-Discrimination Act of 2009, S. 1584 (“ENDA” or “the Act”).  ENDA would prohibit discrimination in employment on the basis of sexual orientation and gender identity, which currently are not prohibited factors under federal law or under the laws of a majority of states.

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President Obama recently nominated Victoria A. Lipnic for a seat on the five-member Equal Employment Opportunity Commission (EEOC).  Lipnic is Republican, with an extensive background in employment law.  During the prior Administration, she served as Assistant Secretary of Labor for Employment Standards from 2002-2009.  In that capacity, Lipnic oversaw the Department of Labor’s largest agency, and led the teams that revised the Part 541 overtime regulations under the Fair Labor Standards Act (FLSA), and the Family and Medical Leave Act (FMLA) regulations.
 

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On July 15, 2009, the EEOC issued guidance entitled "Understanding Waivers of Discrimination Claims in Employee Severance Agreements." In this guidance, the EEOC generally explains the waiver of discrimination claims through release agreements and answers questions employees may have about the effect of those agreements on the filing of charges of discrimination and on severance pay. These questions include the following: "May I still file a charge with the EEOC if I believe I have been discriminated against based on my age, race, sex or disability, even if I signed a waiver releasing my employer from all claims?" and "If I file a charge with the EEOC after signing a waiver, will I have to return my severance pay?"  (The EEOC’s answers to these questions are “yes,” and “no,” respectively.)  The EEOC also explains its position on what constitutes a "knowing and voluntary" waiver under Title VII, the Americans with Disabilities Act and the Equal Pay Act, and what is required for a waiver to be effective under the Age Discrimination in Employment Act. In view of the fact that the EEOC has taken the effort to publish this guidance, and considering that the current administration has served notice that federal agencies like the EEOC will continue to vigorously enforce the nation's labor and employment laws, employers should have their current release agreements reviewed by labor and employment counsel.

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