Category Archives: Discrimination and Harassment

Can Managers Scream, Curse, and Act Like Jerks Towards Employees?

Yes – it may be unwise, but it’s generally not unlawful for a manager to scream, curse, or otherwise act like a jerk towards an employee.

A recent decision from the Eighth Circuit Court of Appeals illustrates this point well.  In Rester v. Stephens Media, LLC, the court affirmed dismissal of a plaintiff’s hostile work environment claim under Title VII based on an incident in which her manager screamed and cursed at her and physically prevented her from leaving the area.  739 F.3d 1127 (8th Cir. 2014).  The court described the incident as follows:

Elderton slammed his hands on the desk and began screaming and cursing at her. Rester testified that she rolled her chair back, stood up, and said that she needed to leave, but Elderton put his hands on her three times, and physically prevented her from leaving until she began “wailing and cussing and screaming and hollering.”

In holding that this incident did not give rise to an actionable claim, the court emphasized that the hostile work environment standard is “demanding” and requires “extreme” conduct “rather than merely rude or unpleasant” conduct.  The plaintiff must show “that discriminatory intimidation, ridicule, and insult permeated the workplace.”  The court held that the single incident alleged by the plaintiff did not meet this standard.

Another reason why the plaintiff’s hostile work environment claim failed is because the conduct alleged did “not denote a sexist connotation.”  The anti-discrimination laws only prohibit harassment based on certain categories protected by law, such as sex, race, national origin, religion, disability, etc…  The conduct at issue in Rester, however, was based on a workplace disagreement, and there was no indication it was based on a protected class status.

In this latter respect, the Rester case was similar to another recent case, Lenzen v. Workers Compensation Reinsurance Ass’n, 705 F.3d 816 (8th Cir. 2013).  In Lenzen, the court rejected a hostile work environment claim because the plaintiff could not establish that the manager’s bad behavior was based on her disability.  Instead, the evidence showed that the manager “created a hostile work environment for the whole support staff — including for those without any medical conditions.”

Takeaway:  Managers who scream, curse, and act like jerks may be undesirable for a host of non-legal reasons, such as employee morale, productivity, and retention.  But acting like a jerk is generally not sufficient to create a hostile work environment claim unless the behavior is based on a protected class status and is so extreme that discriminatory intimidation, ridicule, and insult permeate the workplace.

EEOC Challenges English-Only Workplace Rules in Wisconsin

The Equal Employment Opportunity Commission (EEOC) recently announced that it filed a lawsuit against a Wisconsin-based company alleging national origin discrimination based on “English-only” workplace rules.

In the EEOC’s press release, the EEOC alleged that the employer terminated a number of Hmong and Hispanic employees after a 10-minute observation that identified the employees as having low English skills.  The EEOC alleged that English language skills were not necessary for the employees to perform their jobs and that the employees had otherwise received good job performance allegations.  Because the English language skills were not required for the job, the EEOC alleged that the terminations constituted prohibited national origin discrimination under Title VII, which protects the linguistic characteristics of national origin groups.

Takeaway:  The EEOC’s new case concerning English-only rules is a good reminder for employers that language requirements for a job generally must be based on a “bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.”  See 29 U.S.C. § 2000e-2(e)(1).  If that standard is not met, an English-only language rule may potentially run afoul of Title VII.  Additional information about English-only rules is available on the EEOC’s website here.

Employment Protections for Medical Marijuana

On May 29, 2014, Governor Dayton signed a law to implement a medical marijuana program in Minnesota.  See S.F. 2470.  In general, the law authorizes the Minnesota Department of Health to create a patient registry for the use of medical marijuana for certain specified conditions (such as cancer, terminal illness, glaucoma, HIV/AIDS, etc…).  The program will not go into effect until July 1, 2015.

The medical marijuana law includes certain employment-related legal protections for patients enrolled in the new program.  Specifically, the law provides that:

Unless a failure to do so would violate federal law or regulations or cause an employer to lose a monetary or licensing-related benefit under federal law or regulations, an employer may not discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person, if the discrimination is based upon either of the following:

(1) the person’s status as a patient enrolled in the registry program under sections 152.22 to 152.37; or

(2) a patient’s positive drug test for cannabis components or metabolites, unless the patient used, possessed, or was impaired by medical cannabis on the premises of the place of employment or during the hours of employment.

The law further provides that “[a]n employee who is required to undergo employer drug testing pursuant to section 181.953 may present verification of enrollment in the patient registry as part of the employee’s explanation under section 181.953, subdivision 6.”  These provisions of the law will be codified at Minn. Stat. § 152.32, subd. 3(c–d).

Takeaway:  Before the medical marijuana program goes into effect in 2015, employers will need to familiarize themselves with the new legal protections for employees enrolled in the program.  It’s important to note, however, that the law includes exceptions for compliance with federal laws, regulations, or licensing requirements.  In addition, the new law does not protect an employee’s use, possession, or impairment by medical marijuana “on the premises of the place of employment or during the hours of employment.”

Minnesota Discrimination Law Development: New Statute Provides a Right to a Jury Trial in Discrimination Cases

Governor Dayton recently signed a bill into law that allows a plaintiff who has brought a discrimination action under the Minnesota Human Rights Act (MHRA) to have a jury trial.  See S.F. 2322.  The new law takes effect on August 1, 2014.

Until now, MHRA claims were by court trial only, although many judges used advisory juries – especially when the MHRA clam was brought along with other common law claims.  Because the MHRA created state a cause of action with unpredictable implications at the time it was adopted, the court-trial requirement was a legislative compromise to counteract unintended results.  But that was decades ago, and there has been much development and stabilizing in state discrimination law.  Indeed, the right to a jury is fundamental to the Anglo-American legal tradition, so it is not a surprise that it has now caught up with the MHRA.

This change is important to Minnesota employers.  A court trial was often a more cost-effective and predictable way to defend against an employment discrimination claim.  Court trials are usually shorter than jury trials and decided by a court based upon submitted findings and conclusions.  Frankly, there is less of a chance for emotion or prejudice to sway a decision.

But it was not all advantages.  For instance, it was often more difficult for a Court to push for settlement prior to or during trial since the Court itself was the finder of fact.  Furthermore, summary judgment motions were often more difficult to bring because courts were reluctant to dismiss matters that they themselves would otherwise hear and decide at a brief trial, which would establish a narrower standard of appellate review.

Takeaway:  This new law is an important development with both “pros and cons,” which employers and their legal counsel should review when defending existing and potential employment discrimination claims.  Cost-risk analysis in any discrimination claim will likely need to be reviewed and perhaps revised.  But the best response will be increased care in making employment decisions and the development of a strong record of defense.  Ultimately, it is the evidence not the process that controls the outcome of a discrimination case.  To borrow from Gilbert and Sullivan, you really can never “throw dust in a jury’s eyes or hoodwink a judge who is not over-wise!”

A Quick Guide To Equal Pay Certificates in Minnesota

One of the new requirements of the Women’s Economic Security Act is that certain contractors must provide equal pay certificates in order to conduct business with the State of Minnesota or certain governmental agencies.  See H.F. 2536; H.F. 3172.  The equal pay certificate requirements of the law will be codified at Minn. Stat. § 363A.44.

Here’s a short overview of the new equal pay certificate requirements:

When Do the Equal Pay Certificate Requirements Take Effect?  The equal pay certificate requirements will become effective on August 1, 2014 and will apply to “any solicitation made on or after that date.”

What Contractors Will Need to Have Equal Pay Certificates?  Any business that has 40 or more full-time employees in Minnesota or in the state where the business has its primary place of business, on a single day during the prior 12 months, will need to have an equal pay certificate in order to be eligible to execute a contract or agreement for goods or services in excess of $500,000.00 with the State of Minnesota, a Department or agency of the State, the Metropolitan Council, or a metropolitan agency.

Are Any Contracts Exempt?  Yes, the Commissioner of Administration may exempt a contractor from the equal pay certificate requirements if the Commissioner determines that requiring the certificate would cause undue hardship to the contracting entity.  In addition, the equal pay certificate requirements do not apply to contracts to provide goods and services to individuals under Minn. Stat. chapters 43A, 62A, 62C, 62D, 62E, 256B, 256I, 256L, or 268A, with a business that has a license, certification, registration, provider agreement, or provider enrollment contract that is a prerequisite to providing those goods and services.  Finally, the equal pay certificate requirements also do not apply to contracts entered into by the State Board of Investment for investment options under Minn. Stat. § 352.965, subd. 4.

How Does a Contractor Obtain An Equal Pay Certificate?  In order to obtain the equal pay certificate, the business must pay a $150.00 fee and the chief executive of the business must sign and send an equal pay compliance statement to the Minnesota Department of Human Rights stating that:

  • The business is in compliance with Title VII of the Civil Rights Act of 1964, the Equal Pay Act of 1963, Minnesota Human Rights Act, and Minnesota Equal Pay for Equal Work Law;
  • The average compensation for its female employees is not consistently below the average compensation for its male employees within each of the major job categories in the EEO-1 employee information report for which an employee is expected to perform work under the contract, taking into account factors such as length of service, requirements of specific jobs, experience, skill, effort, responsibility, working conditions of the job, or other mitigating factors;
  • The business does not restrict employees of one sex to certain job classifications and makes retention and promotion decisions without regard to sex;
  • That wage and benefit disparities are corrected when identified to ensure compliance with equal pay requirements;
  • The certification must explain how often wages and benefits are evaluated to ensure compliance with equal pay requirements; and
  • The certification must indicate whether the business, in setting its compensation and benefits, utilizes:  (1) a market pricing approach; (2) state prevailing wage or union contract requirements; (3) a performance pay system; (4) an internal analysis; or (5) an alternative approach to determine what level of wages and benefits to pay its employees. If the business uses an alternative approach, the business must provide a description of its approach.

What Should The Equal Pay Compliance Statement Look Like?  Unless additional guidance is provided by the Department of Human Rights, the equal pay compliance statement should likely resemble this sample equal pay compliance statement that was used during the legislative process.

Can An Equal Pay Compliance Statement Be Rejected?  Yes.  The law provides that the commissioner must issue an equal pay certificate, or a statement of why the application was rejected, within 15 days of receipt of the application.  An application may be rejected only if it does not comply with the requirements of explained above.

How Long Is A Certificate Valid?  Once issued, an equal pay certificate will be valid for a period of four years.

Can Contractors Be Audited To Ensure Compliance?  Yes.  The Commissioner of Human Rights will have the authority to audit contractor businesses to ensure compliance with the equal pay certificate requirements described above.  If audited, a business may be required to disclose:  (1) the number of male employees; (2) the number of female employees; (3) average annualized salaries paid to male employees and to female employees, in the manner most consistent with the employer’s compensation system, within each major job category; (4) information on performance payments, benefits, or other elements of compensation, in the manner most consistent with the employer’s compensation system, if requested by the commissioner as part of a determination as to whether these elements of compensation are different for male and female employees; (5) average length of service for male and female employees in each major job category; and (6) other information identified by the business or by the commissioner, as needed, to determine compliance.

Can Equal Pay Certificates Be Suspended or Revoked?  Yes.  The statute authorizes the suspension or revocation of equal pay certificates if a contractor does not make a good faith effort to comply with equal pay laws, fails to make a good faith effort to comply with the equal pay certificate requirements, or has multiple violations of equal pay laws or the equal pay certificate requirements.  If this occurs, the contractor may request an administrative hearing to review the decision within 20 days after receiving notice of the decision.

Does The Law Impose Any New Substantive Equal Pay Requirements on Employers?  No – in a recent interpretive letter, the Commissioner of Human Rights clarified that the Administration “interprets the proposed language in the bill only to ensure contractors comply with equal pay laws.”  The Commissioner described the certificate as “a one-page, affirmative statement that the business is following equal pay laws (Title VII of the Civil Rights Act of 1964, Equal Pay Act of 1963, Minnesota Human Rights Act, and the Minnesota Equal Pay for Equal Work Law) and is taking steps to remedy disparities when they are found.”  The Commissioner explicitly rejected any interpretation of the law that would require contractors to implement “comparable worth” policies similar to those required of municipalities under pre-existing state law.  See Minn. Stat. § 471.992 et seq.

Is Technical Assistance Available?  Yes.  The statute requires that the Commissioner must provide technical assistance to any business that requests it.

What Employers Need to Know About Familial Status Discrimination

One of the changes made by the recently passed Women’s Economic Security Act was the addition of “familial status” as a protected category under the Minnesota Human Rights Act (MHRA). See H.F. 2536. Here’s what employers need to know about this new protected class under Minnesota law:

How is “Familial Status” Defined? “Familial status” is defined as “the condition of one or more minors being domiciled with (1) their parent or parents or the minor’s legal guardian or (2) the designee of the parent or parents or guardian with the written permission of the parent or parents or guardian.” The law also provides that the “protections afforded against discrimination on the basis of family status apply to any person who is pregnant or is in the process of securing legal custody of an individual who has not attained the age of majority.” Minn. Stat. § 363A.03, subd. 18. Familial status has been a protected status under the MHRA for purposes of housing for several decades.

What Does the Law Prohibit? Amended Minn. Stat. § 363A.08, subd. 2, now states that “except when based on a bona fide occupational qualification, it is an unfair employment practice for an employer, because of . . . familial status . . . to: (1) refuse to hire or to maintain a system of employment which unreasonably excludes a person seeking employment; or (2) discharge an employee; or (3) discriminate against a person with respect to hiring, tenure, compensation, terms, upgrading, conditions, facilities, or privileges of employment.” In addition, unless based on a bona fide occupational qualification, employers may not: (1) request or require information from applicants about familial status during the hiring process; (2) seek or obtain information regarding familial status for purposes of making job decisions; or (3) print or publish a notice or advertisement that specifies a preference or limitation with respect to familial status. See Minn. Stat. § 363A.08, subd. 4.

When Did the Familial Status Provision Take Effect? The law’s prohibition against discrimination on the basis of familial status took effect on May 12, 2014.

What is Not Familial Status Discrimination? Although the law prohibits discrimination based on familial status, nothing in the law requires that employers provide accommodations or special treatment based on an employee’s familial status. In a recent interpretive letter, the Commissioner of the Minnesota Department of Human Rights stated that the Department would not consider any of the following situations to constitute familial status discrimination:

  • Failure to provide special accommodations such as additional leave or exceptions to other company policies due to an employee’s parentage of minor children or pregnancy other than what accommodations are already required under current law;
  • Failure to provide special accommodations in work schedules, e.g. daytime rather than evening or night, due to an employee’s parentage of minor children;
  • Failure to provide special accommodations or exceptions to ordinary performance expectations or evaluations due to an employee’s parentage of minor children or pregnancy;
  • Imposition of higher employee costs for health insurance, e.g. for family or employee plus one coverage as opposed to single coverage as long as any employer subsidy/share is identical to that provided to other employees;
  • Failure to provide special accommodations such as preferred parking spots or additional commuting expense or transit expense reimbursements or vouchers due to an employee’s parentage of minor children or pregnancy that may require additional expense or frequency to bring a minor child to or from daycare and/or school;
  • Requiring the employee to reimburse for personal use of company phones at a higher level than other employees due to more frequent personal use due to an employee’s parentage of minor children or to use their own phone for personal calls if a similar requirement is imposed on other employees;
  • Failure to provide on-site day care or employer reimbursement for day care expense;
  • Failure to provide child care expense reimbursement under a tax-advantaged, flexible spending account; or
  • Failure to provide special accommodations or exceptions to employee travel requirements due to an employee’s parentage of minor children.

Is “Family Caregiver” a Protected Category Under the New Law? No. Although an initial version of the legislation would have included “family caregiver” status as a separate protected category under the MHRA, the final version of the bill that was signed into law did not include “family caregiver” as a protected category. The initial version of the legislation defined “family caregiver” as “a person who cares for another person: (1) who is related by blood, marriage, or legal custody; or (2) with whom the person lives in a familial relationship.” However, this was not included in the final legislation. Accordingly, the only new protected category for purposes of the MHRA is “familial status.”

Takeaway: Employers should review their policies and practices to ensure compliance with the new familial status provisions of the MHRA. At a minimum, anti-discrimination policies will likely need to be updated to include familial status as a protected category.

Sixth Circuit Says Telecommuting May Be Required As a Reasonable Accommodation

Determining what is a reasonable accommodation under state or federal disability law can be one of the most complex issues an employer faces when dealing with employees. The guidelines from the Equal Employment Opportunity Commission (“EEOC”), which interpret the Americans with Disabilities Act (“ADA”), suggest that allowing employees to telecommute from home may be a required form of accommodation. For many years, federal courts have seemingly rejected this idea. But on April 22, 2014, the Sixth Circuit Court of Appeals ruled in EEOC v. Ford Motor Company that an employer may be required to allow telecommuting as a reasonable accommodation for a disabled employee.

In the Ford Motor Co. case, Plaintiff Jane Harris worked as a resale buyer for Ford, serving as an intermediary between steel suppliers and parts manufacturers that serve Ford. Her duties focused on group problem solving, and required her to be available to interact with the resale team, suppliers, and others at Ford to help solve problems. Occasionally she also needed to make site visits, as well as complete various types of paperwork and other forms using a computer.

Harris suffered from irritable bowel syndrome (“IBS”), a condition that causes fecal incontinence, and which caused Harris to have many absences from work. As her symptoms worsened over the years, Harris took intermittent FMLA leave. Ford allowed Harris to try telecommuting on a trial basis as Ford had a policy that allowed some employees to telecommute multiple days per week, depending on the job. Some of Harris’s fellow buyers took advantage of this policy from time to time. Harris’s supervisor decided that telecommuting on a more frequent basis was not feasible for Harris as she could not maintain regular attendance. Ford did not allow Harris to continue to telecommute.

Harris then formally requested to telecommute on an as-needed basis as a reasonable accommodation for her IBS. While Ford had allowed other buyers to telecommute at times, Harris’s supervisors said that her position was not suitable for telecommuting and denied her request. Instead, Ford suggested other forms of accommodation, such as switching to a job more suitable for telecommuting, or moving her cubicle closer to the bathroom. Harris rejected those ideas and filed a discrimination charge with the EEOC. While Harris’s performance had previously been viewed as satisfactory in most areas, Ford took several adverse actions against her after she filed her charge, and she was eventually terminated for her alleged poor performance.

After Harris was fired, the EEOC sued on her behalf claiming that Ford violated the ADA by failing to accommodate her disability and by retaliating against her for filing a discrimination charge. The trial court granted Ford’s summary judgment motion and dismissed the lawsuit. On appeal, the Sixth Circuit reversed. The court found that there was at least enough evidence to create a fact dispute for a jury to decide whether Harris was otherwise qualified for her job if Ford eliminated the requirement that she be physically present at work and allow her to telecommute. The court found that Ford failed to show that Harris’s constant physical presence at work was necessarily essential for her to perform her job duties. Importantly, the court noted that technological advancements have allowed more employees to work remotely. Many of Harris’s daily interactions with others were by phone, and she apparently could still perform site visits when needed even if she spent most of her time working from home. Additionally, the court noted that Ford had allowed other buyers to telecommute on a more limited basis.

The court also found that Harris’s request to telecommute was at least arguably reasonable since telecommuting would allow Harris to be at work during regular business hours. Her past attendance problems could not be used as a basis to deny her accommodation request since those absences were related to her disability. The court rejected Ford’s business judgment that it was essential for Harris to be able to interact face-to-face with the various people she worked with in order to effectively do her job. Most importantly, the court determined that Ford could not force Harris to choose one of its suggested alternative arrangements because the court viewed Harris’s request to telecommute as reasonable. It is unknown at this time whether Ford will seek review of this decision from the entire Sixth Circuit, or whether it will seek discretionary review by the United States Supreme Court.

Takeaway: This decision from the Sixth Circuit may turn out to be a watershed moment against employers in failure to accommodate discrimination claims. This decision erodes the idea that an employee’s physical presence in a brick and mortar location is inherently an essential job function since technological advances have made telecommuting a feasible option for at least certain employees to do their jobs. This decision also shows that courts may be less willing to defer to an employer’s business judgment about what jobs are suitable for telecommuting, and that an employer may be forced to accept an employee’s requested accommodation if it is reasonable. Employers that currently allow telecommuting, or have policies on telecommuting, should consider reviewing whether changes to their current policies and practices are necessary. Reasonable accommodation questions involving disabled employees raise many complicated factual and legal issues, and employers would be wise to seek advice of counsel in these types of situations.

Breaking News: The Women’s Economic Security Act Is Poised To Become Law

On May 8–9, 2014, both the Minnesota House and Senate passed the Women’s Economic Security Act, a wide-ranging law that will make several significant changes to employment law in Minnesota.  See H.F. 2536.  Governor Dayton is expected to sign the bill into law in the near future.  Some of the provisions will take effect as soon as the day after enactment.  [Update:  Governor Dayton signed the bill into law on May 11, 2014.  The effective date for many provisions is May 12, 2014.]

Here’s what employers need to know about the new law:

New Pregnancy Accommodation Requirements:  One of the most significant changes of the new law is a requirement for employers with 21 or more employees at at least one site to provide reasonable accommodations to pregnant employees.  Employers will be required to engage in the interactive process with any pregnant employee who requests accommodations.  The law includes an exception from this requirement when the requested accommodation “would impose an undue hardship on the operation of the employer’s business.”  However, the law also states that it is not an undue hardship for an employer to provide the following accommodations: (1) more frequent restroom, food, and water breaks; (2) seating; and (3) limits on lifting over 20 pounds.  The law further states that reasonable accommodation that may be required by the law include, but are not limited to, temporary transfer to a less strenuous or hazardous position, seating, frequent restroom breaks, and limits to heavy lifting.  However, employers will not be required to create a new or additional position in order to accommodate an employee, nor will they be required to discharge any employee, transfer any other employee with greater seniority, or promote any employee.  Finally, the law prohibits employers from retaliating against employees who request pregnancy accommodations.  These new requirements will become effective on the day following enactment by Governor Dayton.

Expanded Pregnancy Leave Requirements:  The law will require employers with 21 or more employees at at least one site to provide up to 12 weeks of unpaid leave to:  (1) a biological or adoptive parent in conjunction with the birth or adoption of a child; or (2) a female employee for prenatal care, or incapacity due to pregnancy, childbirth, or related health conditions.  To be eligible for the leave, an employee must work for the employer for at least 12 months preceding the request, and the employee must work at least in a half-time equivalent position for the 12 months preceding the request for leave.  These new requirements will become effective on the day following enactment by Governor Dayton.

Changes to Minnesota’s Sick Leave Benefits Law:  The law will expand Minnesota’s sick leave benefits law, which allows employees to use sick leave benefits to care for a relative, to include care for an employee’s mother-in-law, father-in-law, or grandchildren – in addition to the other relatives already covered by the law.  It will also allow employees to use sick leave benefits for “safety leave,” which is defined as “leave for the purpose of providing or receiving assistance because of sexual assault, domestic abuse, or stalking.”  The law will further prohibit employer retaliation against employees who request or use sick leave benefits protected by the law.  These new requirements will become effective on the day following enactment by Governor Dayton.

Unemployment Benefits For Victims of Sexual Assault or Stalking:  Effective October 5, 2014, the law will allow employees who quit their employment or who are terminated because either the employee or an immediate family was the victim of sexual assault or stalking to qualify for unemployment insurance benefits.

New “Equal Pay Certificate” Requirements:  Subject to a few exceptions, the law will generally require that any business with 40 or more employees in Minnesota (or the state where the business has its primary place of business) on any single day in the previous 12 months, must provide an “equal pay certificate” in order to execute a contract or agreement in excess of $500,000 with the State, an agency of the state, the Metropolitan Council, or a metropolitan agency.  In order to obtain the equal pay certificate, the business must pay a $150.00 fee and the chief executive of the business must certify that:

  • The business is in compliance with Title VII of the Civil Rights Act of 1964, the Equal Pay Act of 1963, Minnesota Human Rights Act, and Minnesota Equal Pay for Equal Work Law;
  • The average compensation for its female employees is not consistently below the average compensation for its male employees within each of the major job categories in the EEO-1 employee information report for which an employee is expected to perform work under the contract, taking into account factors such as length of service, requirements of specific jobs, experience, skill, effort, responsibility, working conditions of the job, or other mitigating factors;
  • The business does not restrict employees of one sex to certain job classifications and makes retention and promotion decisions without regard to sex;
  • That wage and benefit disparities are corrected when identified to ensure compliance with equal pay requirements;
  • The certification must explain how often wages and benefits are evaluated to ensure compliance with equal pay requirements; and
  • The certification must indicate whether the business, in setting its compensation and benefits, utilizes:  (1) a market pricing approach; (2) state prevailing wage or union contract requirements; (3) a performance pay system; (4) an internal analysis; or (5) an alternative approach to determine what level of wages and benefits to pay its employees. If the business uses an alternative approach, the business must provide a  description of its approach.

The law will also give the Commissioner of Human Rights the authority to audit contractor businesses to ensure compliance with the equal pay certificate requirements described above.  If audited, a business will be required to disclose:  (1) the number of male employees; (2) the number of female employees; (3) average annualized salaries paid to male employees and to female employees, in the manner most consistent with the employer’s compensation system, within each major job category; (4) information on performance payments, benefits, or other elements of compensation, in the manner most consistent with the employer’s compensation system, if requested by the commissioner as part of a determination as to whether these elements of compensation are different for male and female employees; (5) average length of service for male and female employees in each major job category; and (6) other information identified by the business or by the commissioner, as needed, to determine compliance.

The equal pay certificate requirements will become effective on August 1, 2014.

Wage Disclosure Protections:  The law will prohibit employers from:  (1) requiring nondisclosure by an employee of his or her wages as a condition of employment; (2) requiring an employee to sign a waiver or other document which purports to deny an employee the right to disclose the employee’s wages; or (3) taking any adverse employment action against an employee for disclosing the employee’s own wages or discussing another employee’s wages which have been disclosed voluntarily.  The law will also require employers with handbooks to inform employees of these rights in their employee handbooks.  On the other hand, the law clarifies that it does not authorize employees to disclose proprietary information, trade secret information, or information that is otherwise subject to a legal privilege or protected by law.  These requirements will become effective on the day following enactment by Governor Dayton.

Amended Nursing Mother Protections:  The law will amend Minnesota’s existing nursing mother statute to require employers to make reasonable efforts to provide a room or other location to nursing mothers who need to express milk.  The amended law will require employers to provide a room “in close proximity to the work area, other than a bathroom or a toilet stall, that is shielded from view and free from intrusion from coworkers and the public and that includes access to an electrical outlet, where the employee can express her milk in privacy.”  The law will also prohibit retaliation against employees who assert rights under this section.  These requirements will become effective on the day following enactment by Governor Dayton.

Prohibition of “Familial Status” Discrimination in Employment:  The law will amend the Minnesota Human Rights Act (MHRA) to prohibit employment discrimination based on “familial status.”  The MHRA defines “familial status” to mean “the condition of one or more minors being domiciled with (1) their parent or parents or the minor’s legal guardian or (2) the designee of the parent or parents or guardian with the written permission of the parent or parents or guardian.”  The “familial status” protection also extends to “any person who is pregnant or is in the process of securing legal custody of an individual who has not attained the age of majority.”  These requirements will become effective on the day following enactment by Governor Dayton.

Takeaway:  The Women’s Economic Security Act represents a substantial change to Minnesota employment law.  Over the coming weeks, Minnesota Employer will cover the various aspects of the law in greater detail.  Because many of the provisions will take effect the day after the bill is signed by Governor Dayton, however, employers need to begin immediately familiarizing themselves with the law’s new legal requirements.

Second Circuit Rejects Hostile Work Environment and Retaliation Claims

The Second Circuit Court of Appeals recently rejected a Plaintiff’s claim of alleged hostile work environment harassment based on sporadic incidents of inappropriate behavior as well as the Plaintiff’s claim of retaliation under Title VII.

In Lewis v. City of Norwalk, the Plaintiff alleged that his supervisor “leered” at him and licked his lips in a provocative manner on several occasions over the course of two years. No. 13-2485 (2d Cir., Apr. 14, 2014). The Plaintiff further alleged that he felt uncomfortable when the supervisor asked him out for drinks, invited him to join his gym so the two could work out together, and complimented his taste in clothing. After the Plaintiff was presented with a poor performance review and offered the opportunity to resign, the Plaintiff complained about the supervisor’s alleged harassment. The employer hired an outside law firm to investigate the allegations. The investigator determined the allegations were uncorroborated, and the employer proceeded to terminate the Plaintiff’s employment.

With respect to the Plaintiff’s claim for hostile work environment harassment, the court concluded that the alleged incidents of leering and lip-licking occurred too infrequently to create a hostile work environment based on the Plaintiff’s sex. The court found that the other allegations (e.g., asking the Plaintiff out for drinks, inviting him to join a gym) were “facially sex-neutral incidents” that did not contribute to a hostile work environment.

With respect to the retaliation claim, the court held that there was no evidence of causation between the Plaintiff’s last-minute report of harassment and his termination. The court explained that “[e]mployers need not suspend previously planned [employment actions] upon discovering that a Title VII suit has been filed, and their proceeding along lines previously contemplated, though not yet definitively determined, is no evidence whatever of causality.”

Takeaway: The Lewis case shows that courts continue to apply a high standard for hostile work environment claims and that allegations that are not sufficiently “severe and pervasive” will not suffice. The Lewis case also shows that an employee may not insulate him or herself from termination by alleging harassment or discrimination when it is clear that the employee’s termination is imminent.

Guess What? The EEOC Does the Same Thing It Tells Employers Not to Do

In a poignant example of the pot calling the kettle black, the Sixth Circuit Court of Appeals recently rejected the EEOC’s argument that an employer’s use of credit checks for hiring caused a disparate impact, pointing out that the EEOC does the exact same thing.

The first sentence in the court’s opinion in EEOC v. Kaplan Higher Education Corp. says it all: “In this case the EEOC sued the defendants for using the same type of background check that the EEOC itself uses.” No. 13-3408 (6th Cir., Apr. 9, 2014). The opinion goes on to describe how the EEOC’s personnel handbook recites that “[o]verdue just debts increase temptation to commit illegal or unethical acts as a means of gaining funds to meet financial obligations,” and how because of that concern, the EEOC runs credit checks on applicants for 84 of the agency’s 97 positions. Nevertheless, the EEOC sued an employer, arguing that the employer’s use of credit checks for hiring had a disparate impact in violation of Title VII.

In rejecting the EEOC’s claim, the court held that the expert witness testimony offered by the EEOC to prove that a disparate impact occurred was unreliable and admissible. First, the expert’s methodology did not meet the requirements of Federal Rule of Evidence 702 because it relied on an untested methodology and was not peer-reviewed. Second, the expert admitted that his results were not based on a statistically representative sample size. Without admissible expert testimony to prove a disparate impact based on race, the court concluded that the EEOC could not prove its claim of disparate impact discrimination.

Takeaway: The Kaplan decision suggests that the EEOC may have an uphill battle in proving that an employer’s reliance on credit checks for hiring results in a disparate impact, particularly given the EEOC’s own policies on the subject. However, the EEOC may one day succeed in finding a reliable expert with a tested methodology to prove this type of claim. Therefore, it’s a good idea for employers to continue to use credit checks for hiring only when doing so is defensible as a matter of business necessity.

EEOC Challenging National Pharmacy Over Terms of Severance Agreements

On February 7, 2014, the EEOC filed suit in the United States District Court for the Northern District of Illinois in Chicago against the large prescription and healthcare related services provider, CVS, contending that its actions concerning severance benefits violate Title VII of the Civil Rights Act of 1964. Specifically, this law provides the EEOC with the ability to seek immediate redress to remedy any potential injury which would result from an employer attempting to prohibit communication to the agency to address discrimination.

The EEOC based this Complaint on the theory that CVS was conditioning the receipt of severance benefits on an agreement which it interpreted to “interfere with employees’ rights to file discrimination charges and/or communicate and cooperate with the EEOC,” including limitations on the departing parties ability to cooperate, non-disparagement clauses, and non-disclosure of confidential information. Additionally, the Separation Agreements included general releases of claims, covenants not to sue, and consequences for breach. In the Complaint, the EEOC stresses the policy consideration that any conduct taken by an employer to limit employees’ access to report violations is unlawful. The EEOC’s stated concern is to “preserve access to the legal system” and to ensure that employees remain “free from fear of adverse consequences” if they are to report potential unlawful action.

Takeaway: The timeline for resolution of the CVS lawsuit could be a few months or take several years. In the interim, employers should evaluate whether severance, benefits, or contractual agreements with their employees limit the rights to seek federal intervention for unlawful acts undertaken by the employer to avoid running afoul of the EEOC’s policy mandate outlined in the CVS lawsuit.

2013 EEOC Charge of Discrimination Statistics for Minnesota

The Equal Employment Opportunity Commission (EEOC) recently issued its enforcement statistics for the EEOC’s fiscal year 2013, including data about what charges were filed in Minnesota.  Overall, a total of 982 charges were filed with the EEOC in Minnesota in 2013, which represents an approximately 12.5% decrease from 2012, when 1,120 total charges were filed.

The breakdown of the charges was as follows:

  • 56.4% alleged retaliation.
  • 36.5% alleged disability discrimination.
  • 35.5% alleged race discrimination.
  • 26.5% alleged age discrimination.
  • 24.9% alleged sex discrimination.
  • 11.6% alleged national origin discrimination.
  • 3.8% alleged religious discrimination.
  • 3.0% alleged color discrimination.
  • 1.7% alleged equal pay discrimination.
  • 0.1% alleged genetic information discrimination.

Collectively, these numbers add up to more than 100% because many charges include multiple claims.  Consistent with the past several years, the number of retaliation claims continued to increase over previous years.  In 2013, over half of all charges of discrimination filed with the EEOC in Minnesota in 2013 included a claim of retaliation.  At the opposite end of the spectrum, genetic information discrimination was alleged in only one charge of discrimination filed with the EEOC in Minnesota in 2013.

Takeaway:  The EEOC’s 2013 statistics show that retaliation claims continue to pose one of the most common threats to employers in Minnesota.  Retaliation claims are followed by claims for disability, race, age, and sex discrimination, which make up the majority of charges filed in Minnesota.