Category Archives: Discrimination and Harassment
Given the length of discrimination litigation and the sometimes shortness of life, the following question can arise: Will an employment discrimination claim go on if the person bringing the claim dies while the claim is pending? A recent federal case for the circuit governing Minnesota employers addressed this question as to Americans With Disabilities Act claims.
In Guenther v. Griffin Construction Co., 846 F.3d 979 (8th cir. 2017), the U.S. Court of Appeals for the Eighth Circuit held that the ADA claim of an employee who died while the ADA charge was pending survived his death and his estate could carry on with the claim. State claim survival laws did not control this federal ADA claim and the U.S. Court found that “federal common law” allowed survival of the claim. The Court pointed to the fact that a disability can involve a terminal condition (as here) and so it seemed that that claim’s survival was intrinsic to ADA protections and to the deterrence goals of the ADA.
Minnesota employers already are subject to certain types of discrimination claim survival statutes, (for example, special damages under Minnesota Human Rights Act claims survive death) and now the Guenther case establishes that federal ADA claims can continue through the decedent’s estate.
Takeaway: The law of survival of claims is complicated, but Minnesota employers can anticipate that a claimant’s death will not necessarily end a claimant’s pending discrimination charge or suit. That’s a fact of life, so to say.
A distinguishing characteristic of employment discrimination claims in their short statute of limitations – for Minnesota Human Rights Act claims the statute is only 12 months. Defamation claims are two years and tort and breach of contract claims are six years, so a one year limitation period is very favorable to employers. Doubtless, the Minnesota Legislature (like Congress with Title VII and its 300 day limitation period) saw employment discrimination claims as volatile and problematic enough to set a short time to make a claim. And many a claim has fallen on a count to the 365th day between the alleged discriminatory act and the filing of a charge.
A recent Minnesota Supreme Court case highlights a nuance to the hard and fast rule of 365 days. There is built into the statute a tolling period for any internal arbitration process or “conciliation”:
The running of the one-year limitation period is suspended during the time a potential charging party and respondent are voluntarily engaged in a dispute resolution process involving a claim of unlawful discrimination under this chapter, including arbitration, conciliation, mediation or grievance procedures pursuant to a collective bargaining agreement or statutory, charter, ordinance provisions for a civil service or other employment system or a school board sexual harassment or sexual violence policy. – Minn. Stat. 363.28, subd. 3(b).
In Peterson v. City of Minneapolis, the plaintiff brought an age discrimination claim through an internal report and the defendant employer started an internal investigation under a Workforce Policy that contemplated possible resolution. While the trial courts found otherwise, the Minnesota Court of Appeals and ultimately the Minnesota Supreme Court concluded that the internal process constituted “alternative dispute resolution” of the “conciliation” type that suspended the statute. While there was no neutral involved or actual mediation discussions, the Court found that the intentions of the Workforce Policy and possibility of resolution constituted “conciliation” under the tolling provision of the statute.
For Minnesota Employers, this means that the protection provided by the short statute of limitations can be affected by an internal “alternative dispute resolution” process. To offset this potential uncertainty, either there should be no alternative dispute process as defined by Peterson as part of the internal investigation or, if there is, there should be a distinct end so the added tolled period can be accurately calculated. The statute has certain reporting provisions as well.
Takeaway: Like a referee in a Minnesota United football game, the Minnesota Courts will simply add to statute of limitations “regulation time” any tolled period. Minnesota Employers doing internal investigations should be savvy to this and consult with legal counsel about how best to know if a process likely tolls the one year period or design the process so there is no tolling or its impact is short.
An applicant’s wage history is often a factor employers consider in making hiring decisions. In fact, it is not uncommon for an employment application to ask how much a candidate made at their previous positions. Various good faith reasons may support this question. For example, how much an applicant was paid may indicate, beyond job title, how significant his or her job duties and experience have been.
Past wage history may also determine how much the new employer is willing to offer the candidate to entice their employment. The Massachusetts legislature recently considered this issue and determined that setting compensation based on wage history can unfortunately perpetuate market wage disparities based on gender or race. In response, Massachusetts enacted a new pay equity law that prohibits employers from seeking wage history information from applicants. A copy of the new law can be found here.
Pursuant to this new law, it will considered an unlawful act for an employer to:
- Screen job applicants based on their wage, including benefits or other compensation or salary histories, including by requiring that an applicant’s prior wages, including benefits or other compensation or salary history satisfy minimum or maximum criteria; or request or require as a condition of being interviewed, or as a condition of continuing to be considered for an offer of employment, that an applicant disclose prior wages or salary history.
- Seek the salary history of any prospective employee from any current or former employer; provided, however, that a prospective employee may provide written authorization to a prospective employer to confirm prior wages, including benefits or other compensation or salary history only after any offer of employment with compensation has been made to the prospective employee.
This new law will not be effective until January 1, 2018.
Takeaway: Employers hiring applicants in Massachusetts should be aware of this new law and take steps to edit their employment application forms and processes as necessary prior to January 2018. Employers should continue to monitor this issue as similar laws might well be enacted in other states.
Does an Employer Need to Obtain a Judgment on the Merits to Recover Attorneys’ Fees Under Title VII?
No – the U.S. Supreme Court recently held that a defendant need not obtain a favorable ruling on the merits to recover attorneys’ fees under Title VII.
Title VII provides that district court has discretion to award a “prevailing party” reasonable attorneys’ fees and costs in litigation arising under the statute. 42 U.S.C. § 2000e-5(k). In CRST Van Expedited, Inc. v. EEOC, the Supreme Court addressed the question of whether a “prevailing party” must obtain a favorable ruling on the merits to recover attorneys’ fees or whether a non-merits-based favorable ruling may suffice. No. 14–1375 (May 19, 2016).
In CRST, a single employee filed a charge of discrimination against her employer alleging sexual harassment. After investigating, the EEOC determined there was probable cause to support the charge. The EEOC further found that there was probable cause to show that the employer subjected a class of current and prospective employees to sexual harassment. The EEOC later filed a lawsuit against the employer on behalf of over 250 allegedly aggrieved female employees. The district court, however, dismissed the lawsuit on the basis that the EEOC failed to adequately investigate or attempt to conciliate its claims. Following the dismissal, the EEOC awarded the employer over $4 million in fees. The Eighth Circuit Court of Appeals eventually reversed the fee award, holding that a Title VII defendant can only be a “prevailing party” by obtaining a “ruling on the merits.”
The U.S. Supreme Court disagreed with the Eighth Circuit’s requirement that a ruling on the merits was a prerequisite to an award of attorneys’ fees under Title VII. The Court explained that:
The defendant, of course, might prefer a judgment vindicating its position regarding the substantive merits of the plaintiff ’s allegations. The defendant has, however, fulfilled its primary objective whenever the plaintiff ’s challenge is rebuffed, irrespective of the precise reason for the court’s decision. The defendant may prevail even if the court’s final judgment rejects the plaintiff ’s claim for a nonmerits reason.
The Court noted that one purpose of the fee-shifting provision was to deter litigation that was “frivolous, unreasonable, or groundless” and requiring a merits-based determination could undermine this objective. For example, litigation might be frivolous if it was barred by non-merits-based determinations, such as state sovereign immunity or mootness.
Takeaway: A defendant need not obtain a favorable ruling on the merits to recover attorneys’ fees as the prevailing party under Title VII.
Yesterday, former Fox News TV host, Gretchen Carlson, filed a sexual harassment lawsuit against Roger Ailes, the CEO of Fox News. The allegations in the lawsuit serve as a roadmap of the kinds of behavior to avoid in the workplace. Here are five lessons about what not to do in the workplace that can be learned from the case:
- Don’t tell subordinate employees that “I think you and I should have had a sexual relationship a long time ago” and that “sometimes problems are easier to solve” that way.
- When an employee reports sexual harassment, don’t call her a “man hater” and say that she needs to learn to “get along with the boys.”
- Don’t ask a female (or male) employee to turn around so that you can ogle her posterior.
- Don’t comment that certain outfits enhance an employee’s figure and urge her to wear those outfits every day.
- Don’t boast to others that you always stay seated when a woman walks over so that she has to “bend over” to say hello.
Takeaway: Whether these allegations are true are not, they are good examples of the kinds of behavior that employers, managers, and employees should avoid in the workplace to reduce the risk of liability.
The federal Equal Employment Opportunity Commission (EEOC) has implemented a new Online Charge Status System for use by charging parties and charge respondents. This new system is only available regarding charges filed on or after September 2, 2015. This online tool is not available for charges filed with state or local fair employment practices agencies.
Parties can access the system online here. The login requires entry of the applicable EEOC charge number and the charging party’s zip code number. The respondent employer’s zip code will not permit access. Once into the site, the system provides the current status of the charge, such as “investigation,” as well as contact information for the EEOC staff assigned to the charge. The system also sets forth the dates of pertinent steps taken regarding the charge, such as the filing date and the date the charge was assigned to an investigator.
Takeaway: The new EEOC online system allows parties to a recent discrimination charge to quickly access basic status information regarding the charge without having to contact the agency directly.
The federal Equal Employment Opportunity Commission (EEOC) has implemented a new online portal by which respondent employers will submit information and documents pertinent to a charge of discrimination. While piloted last year in a handful of EEOC offices, as of January 1, 2016, this system is now in place in all 53 EEOC offices.
Employers will access this secure EEOC Respondent Portal through a unique password. Each charge will have its own specific password. As a result, each charge must be viewed and responded to separately.
The new digital system will support various functions, including viewing and downloading the charge, reviewing and responding to an EEOC invitation to mediate, submitting a Position Statement and exhibits, submitting a response to a Request for Information, verifying contact information, designating a legal representative, and enabling online communications with the agency. There is no limit on the type or size of files which may be uploaded electronically by the employer.
Employers will no longer receive a hard copy of the notice of the charge and the charge itself in the mail. The EEOC acknowledges that it is possible electronic notice may not be initially received by the respondent because of a bad email address or a SPAM filter. Accordingly, if a respondent has not logged into the system within 10 days after the notice has been sent, the EEOC will attempt to re-serve the notice.
Documents and other information submitted by an employer are only accessible by authorized EEOC staff. Although the charging party will not have online access, the EEOC may still share Position Statements and non-confidential information with the charging party. The only information submitted by the charging party that is available online for the employer is the charge of discrimination.
The EEOC has provided assurance that the portal is secure. As stated in an EEOC Q&A: “There are many layers of security utilizing different physical and software components in order to provide the highest level of protection. These security controls and measures are audited frequently and monitored continuously with state of the art automated vulnerability and compliance software suites.”
Takeaway: Employers should be alert to the fact that EEOC charges of discrimination will now be transmitted by the agency electronically, and not in hard copy. Accordingly, companies should put processes in place to ensure that any such notice received is promptly forwarded to responsible persons within the organization.
On February 1, 2016, the Equal Employment Opportunity Commission (EEOC) published a notice regarding a proposed revision of the Employer Information Report, otherwise known as the EEO-1 Report. The proposed revision would result in employer submission of workforce compensation data. According to the EEOC, this access to pay data would allow the agency to identify and combat pay discrimination.
The current EEO-1 Report requires all employers with 100 or more employees, and federal contractors with 50 or more employees, to annually report data regarding workforce ethnicity, race and gender. According to charts published with the proposed revision, approximately 67,000 EEO-1 Reports are submitted each year.
If the proposed revision is adopted, beginning as of the September 30, 2017, filing deadline, all employers (including federal contractors) with 100 or more employees would submit pay data. The EEOC estimates that about 61,000 reports will be required to make this additional submission. Federal contractors with 50 to 99 employees (approximately 6,000 reports) would not submit the new pay data, but would instead continue to submit only ethnicity, race and gender information.
On the proposed EEO-1 Report, employers would report Form W-2 earnings across the 12 pay bands used by the Bureau of Labor Statistics in the Occupation Employment Statistics survey. By collecting hours worked as well, the proposed EEO-1 Report will account for partial-year or part-time employment. For example, the report might show that a company employs 10 African American men who are Craft Workers in the second pay band ($19,240-$24,439) who worked for a total of 10,000 hours.
The proposed revisions to the EEO-1 Report are open for public comment for a sixty day period ending April 1, 2016.
Takeaway: Assuming the proposed EEO-1 Report revisions become effective, covered employers will be required to report compensation data in 2017. In the meantime, employers should consider obtaining the advice of legal counsel to independently review their compensation data and address any improper pay disparities.
Audits of Minnesota contractors with affirmative action plans or equal pay certificates are on the rise.
In Minnesota, no department or agency of the state can accept any bid or proposal on a contract or agreement for goods and services in excess of $100,000 from any business having more than 40 full-time employees, unless the MDHR Commissioner has received an affirmative action plan (AAP) for that business for the employment of minority employees, women, and qualified disabled persons. Minn. Stat. § 363A.36, subd. 1. The department or agency also cannot execute any such contract or agreement until the AAP has been approved by the Minnesota Department of Human Rights (MDHR) and the business has been issued a Certificate of Compliance. Id. Certificates of Compliance are valid for a four-year period.
In 2015, the MDHR actively audited employers holding Certificates of Compliance. According to MDHR statistics posted on December 31, the MDHR issued over 350 audit letters to state contractors in 2015.
The MDHR also actively audited employers holding the relatively recent Equal Pay Certificates of Compliance. In 2014, Minnesota enacted a new statute requiring companies with 40 or more full-time employees executing a contract for goods or services with the state in excess of $500,000 to hold a current Equal Pay Certificate or certify in writing that it is exempt. Equal Pay Certificates are valid for a four-year period. Minn. Stat. § 363A.44, subd. 1. The MDHR has the authority to audit a covered contractor’s compliance with this requirement and may require the contractor to produce information with respect to (1) its number of male employees, (2) its number of female employees, (3) average annualized salaries, (4) performance payments, benefits, or other elements of compensation, (5) average length of service, and (6) other information as needed to determine compliance. Minn. Stat. § 363A.36, subd. 8. In 2015, the MDHR initiated 21 such audits.
Takeaway: Employers who are covered state contractors in Minnesota should be actively prepared to respond to a MDHR audit letter regarding its AAP and/or Equal Pay Certificate and should regularly be reviewing its programs to ensure ongoing good faith efforts to comply with these laws.
On the heels of ISIL-related terrorist acts in Paris, San Bernardino and elsewhere at the end of 2015, the Equal Employment Opportunity Commission (EEOC) recently issued a statement and guidance regarding discrimination against those who are, or appear to be, Muslim or Middle Eastern.
In part, the EEOC Chair Jenny R. Yang stated: “America was founded on the principle of religious freedom. As a nation, we must continue to seek the fair treatment of all, even as we grapple with the concerns raised by recent terrorist attacks. When people come to work and are unfairly harassed or otherwise targeted based on their religion or national origin, it undermines our shared and longstanding values of tolerance and equality for all.”
In addition to the Chair’s statement, the EEOC also issued two Q&A documents regarding unlawful discriminatory treatment of those who are Muslim or Middle Eastern. One advises employers regarding their responsibilities concerning the hiring, harassment, religious accommodation, and background checks of applicants and employees. The other advises applicants and employees regarding the same topics.
Takeaway: While strong emotional reactions are common in response to recent ISIL and other terrorist attacks, employers must remain non-discriminatory regarding their treatment of applicants and employees who are, or are perceived as, Muslim or Middle Eastern. These recent guidelines help remind employers of the need to increase their efforts to prevent discrimination.
While once saddled with a significant backload of cases, in 2015 the Minnesota Department of Human Rights (MDHR) continued its pattern of increased case investigations and file closures.
According to statistics posted by the MDHR on December 31, 2015, the inventory of open cases has been reduced form 842 cases in September 2012 to only 390 cases in June 2015. As of June 30, 2015, only 12 cases older than one year existed as compared to 228 cases in June 2012. The MDHR’s average time from filing to a determination is now down to 266 days. This rate represents a 31% reduction in the average determination time as compared to two and a half years ago. These administrative gains have been achieved while investigating all charges filed. The MDHR no longer administratively dismisses cases without investigation.
Takeaway: The MDHR has been diligently working toward prompt investigation and determination of pending filed charges. Accordingly, after receiving a charge, employers should be organized and prepared to provide the agency with responsive information that details the company’s rebuttal to the allegations of discrimination.
Can Sexually Explicit Text Messages Support a Sexual Harassment Claim If The Employee Does Not Report Them?
No – in a recent case, the Fourth Circuit Court of Appeals held that the Faragher-Ellerth defense barred an employee’s hostile environment claim based on unreported, explicit text messages with her supervisor.
In McKinnish v. Brennan, the employee exchanged sexually explicit text messages, photos, and videos with her supervisor over a ten-month period. No. 14-2092 (4th Cir. Nov. 6, 2015). The employee never reported these exchanges to her employer as alleged harassment. Instead, the employee’s husband reported the messages to the employer after he discovered them. Although the employer immediately terminated the supervisor, the employee later sued and alleged hostile-environment sexual harassment under Title VII.
The court held that the Faragher-Ellerth affirmative defense barred the employee’s harassment claim. The Faragher-Ellerth affirmative defense applies when: (i) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (ii) the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
The court decided that the reasonable care element of the Faragher-Ellerth affirmative defense was satisfied because the employer maintained a policy prohibiting sexual harassment and directing employees how to report it. The employer also terminated the supervisor involved in the inappropriate messages after the employee’s husband reported the matter.
The court also concluded that the employee unreasonably failed to report the alleged harassment. The employee argued that she did not want to report the harassment because it made her uncomfortable and she feared negative repercussions at her job. However, the court rejected this argument, explaining that an employee’s “subjective fears of confrontation, unpleasantness or retaliation” do not alleviate the employee’s duty to alert his or her employer to an allegedly hostile environment. Accordingly, the court affirmed dismissal of the plaintiff’s sexual harassment claim.
Takeaway: The Faragher-Ellerth affirmative defense provides a strong reason for employers to adopt reasonable policies and procedures for reporting workplace harassment.