Category Archives: Discrimination and Harassment

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.

Can an Employer Give Preference to a Bilingual Job Applicant?

Yes – a recent federal court case demonstrates that a candidate’s bilingual language abilities can serve as a legitimate, nondiscriminatory rationale for a hiring decision.

In George v. Hennepin County, a 51 year-old plaintiff applied for a job as a dental hygienist, but the clinic already had a younger candidate in mind. Civil No. 14-2694 (D. Minn. Oct. 8, 2015). The younger candidate was already working for the clinic in a grant-funded position and had demonstrated the ability to work well with the clinic’s Spanish-speaking clients. Although the younger candidate applied for the job opening, too, she did not initially note that she was bilingual in her application. The clinic later allowed the younger candidate to amend her application after notifying her that it considered her Spanish abilities sufficient for her to qualify as bilingual. The clinic then hired the younger candidate.

After not receiving a job offer, the plaintiff – who was not bilingual, but had some limited Spanish language ability – filed a lawsuit alleging age discrimination. Among other things, the plaintiff argued that the clinic discriminated against her because it did not contact her to determine the extent of her Spanish language abilities, like it did for the younger candidate.

The court rejected the plaintiff’s argument. The court reasoned that the record amply supported the clinic’s need for a bilingual dental hygienist. The court further explained that the clinic adequately explained why it contacted the younger candidate for a better explanation of her Spanish language skills based on the clinic’s prior experience with the younger candidate – not because of age discrimination. Because the court found that there was no genuine issue of fact regarding whether the clinic’s rationale for hiring the younger candidate was a pretext for discrimination, the court dismissed the plaintiff’s claims on summary judgment.

Takeaway: In some circumstances, a job candidate’s bilingual language abilities may serve as a legitimate, nondiscriminatory rationale for an employer’s hiring decision.

Is It Harassment If A Supervisor Makes An Employee Wear a Speedo, Touches His Butt, and Asks Him Out For Drinks?

No – the Tenth Circuit Court of Appeals recently affirmed summary judgment against an employee’s sexual harassment claim even though his supervisor required him to wear a speedo and touched his butt.

In McElroy v. American Family Insurance, the plaintiff worked as a sales manager for an insurance company. No. 14-4134 (10th Cir. Oct. 30, 2015). The plaintiff alleged that his supervisor complimented his appearance, clothing, and cologne; touched his back and buttocks, ostensibly to illustrate the location of the supervisor’s back pain; instructed the plaintiff to participate in two body-fat contests during which he required the plaintiff to wear a speedo and tried to touch his buttocks; and repeatedly asked the plaintiff to join him for drinks during a company event. After the plaintiff was fired, he sued for alleged sexual harassment.

Even though the district court acknowledged that some of the supervisor’s actions could make others feel uncomfortable, the district court dismissed the case on summary judgment. The district court reasoned that the plaintiff’s allegations did not establish that the alleged harassment was sufficiently severe and pervasive to give rise to an actionable claim.

The Tenth Circuit Court of Appeals affirmed. The court explained that the district court’s acknowledgment that the supervisor’s actions could make others feel uncomfortable was not enough to satisfy the high standard for hostile work environment claims.

The McElroy case is another illustration of the principle that courts will not find actionable hostile environment claims unless the conduct is truly so severe and pervasive as to poison the work environment. This is a difficult standard for plaintiffs to satisfy. Merely alleging inappropriate behavior in a handful of instances is generally not enough. In various cases, courts have held that there is no liability even if a supervisor: (i) screams, curses, and acts like a jerk towards employees; (ii) tells fat jokes and farts at employees; or (iii) squeezes an employee’s nipple (a single time). An employer can even fire an employee for being too attractive.

Takeaway: The standard for an actionable hostile work environment claim is high, but employers would be wise not to tempt fate. If at all possible, it remains a good idea for employers not to require employees to wear speedos and not to try to touch employees’ rear-ends.

How Much Does an Employee Charge of Discrimination Cost?

The average cost of defense and settlement of an employee charge of discrimination is $125,000, according to a recent study by insurance provider Hiscox. The study focused on 446 claims reported by small and medium-sized businesses with fewer than 500 employees. Here are some of the key highlights from the study:

  • The average duration of an employment matter from start to finish was 275 days.
  • The average cost of both defense and settlement was $125,000.
  • The average self-insured retention deductible for companies with employment practices liability insurance was $35,000.
  • Only 19% of the matters resulted in both defense costs and a settlement payment. That means that 81% of the charges (or about 4 out of 5) were nuisance suits that did not result in any settlement.
  • The median judgment for employment matters that ended up in court and resulted in a finding of liability was $200,000, in addition to defense costs.

Takeaway: Employment litigation can be expensive, even if the employer wins. Working proactively to prevent problems from occurring in the first place is the most effective strategy for avoiding the potential costs of employment claims.

Five Things An Employer Should Do After Receiving a Charge of Discrimination

So, you’ve just received a charge of discrimination from the Equal Employment Opportunity Commission or a state agency, like the Minnesota Department of Human Rights? Now what?

Here are five steps an employer should take after receiving a charge of discrimination:

  1. Gather Relevant Documents: One of the primary sources of evidence to defend against employment claims is documentary evidence, including electronically stored information. Accordingly, employers should identify and gather relevant documents relating to the challenged decision (such as the employee’s personnel file or any relevant emails) and preserve those documents.
  2. Identify Witnesses: Apart from documentary evidence, the other primary source of evidence in an employment dispute is witness testimony. As a result, employers should identify potential witnesses who were involved in the challenged decision. These individuals will be helpful in investigating and defending against the charge of discrimination.
  3. Determine Whether to Retain Legal Counsel: After receiving a charge of discrimination, an employer should consider whether to retain legal counsel to defend against the charge.  Legal counsel can provide guidance, help develop a strategy, and either help to mediate the dispute or prepare the employer’s position statement.  Whether legal representation will be necessary will depend on a variety of factors, including the nature of the allegations, the nature of the evidence available to defend against the claim, the employer’s budget, and whether in-house staff have the availability and experience to investigate and respond to the charge.
  4. Decide Whether to Mediate or Oppose the Charge.  The agency investigating the charge will generally offer a choice to the employer of either engaging in early mediation or providing a written response disputing the allegations.  Which choice is best depends significantly on the facts of each case and what the employer wants to accomplish.
  5. Prepare a Position Statement.  If the employer decides not to mediate, it will need to provide a written position statement to the investigating agency.  In general, a good position statement affirmatively tells the employer’s side of the story and responds to the allegations made by the opposing party.  Although it’s not always necessary, there may also be a need to address legal issues or arguments raised by the charging party.

Is a Parent Company The Employer of a Subsidiary’s Employees?

On occasion, an aggrieved employee of a subsidiary may seek to assert claims not only against their employer, but also against related entities including the parent company.  The Minnesota Federal District Court recently reviewed, and dismissed, such a claim in Sasorith v. Detector Electronics Corporation, Civ. No. 14-5045 (D. Minn. July 22, 2015).

In Sasorith, the plaintiff claimed that she had been sexually harassed by a co-worker at the subsidiary.  In part, her lawsuit claimed that the parent company was also liable for this alleged harassment because it knew or should have known that she was being harassed.  On a motion to dismiss, the court rejected this claim because the employee did not establish an employment relationship with the parent company.

As stated by the court:  “There is a strong presumption that a parent company is not the employer of the subsidiary’s employees.” (quoting Brown v. Fred’s Inc., 494 F.3d 736, 739 (8th Cir. 2007)).  Sasorith failed to overcome this presumption by showing that the parent company dominated the subsidiary’s operations to the extent that the two entities actually operated as one or that the parent company controlled individual employment decisions of the subsidiary.  As a result, the court dismissed the claims against the parent company.

Takeaway:  While a strong presumption in the law exists to protect a parent company from employment claims by subsidiary employees, a parent company seeking to avoid liability should ensure that it does not appear to dominate employee relations of its subsidiary.  The employment relationships at the subsidiary level should operate independently and outside of the control of the parent company.

Does a Supervisor’s Use of the Words “Historically” and “Old School” Prove Age Discrimination?

No – the Eighth Circuit Court of Appeals recently rejected a plaintiff’s argument that his supervisor’s use of the terms “historically” and “old school” constituted direct evidence of age discrimination.

In Wagner v. Gallup, Inc., the plaintiff sued for age discrimination after his employer terminated his employment. No. 14-2746 (8th Cir. June 12, 2015). In support of his claims, the plaintiff cited a recorded phone call with his younger supervisor shortly before his termination. During the conversation, the supervisor questioned how the company could push the plaintiff to think about his work in a different way than he had done “historically but kind of pushing forward a more creative thought process for our clients.” The supervisor also encouraged the plaintiff to consider whether references he made while working with clients to a previous book he published were truly relevant to the client’s business problems or whether it might “feel like old school.”

When analyzing the supervisor’s comments, the court held that the words “were not uttered in a vacuum but rather must be placed in context.” In context, the court explained that the supervisor used the word “historically” as a temporal reference to things that had been done in the past. The court also explained that the supervisor used the words “old school” to refer to ideas that may not be relevant to a particular situation, not as a reference to the plaintiff. Accordingly, the court held that the comments did not establish direct evidence of age discrimination.

Takeaway: Sometimes plaintiffs attempt to use isolated words out of context to try to establish their claims. The Wagner case is good for employers because it supports the proposition that courts should analyze comments in context, not in isolation.

Are Racist and Profane Comments Made During Union Picketing Protected Under the NLRA?

Yes – according to an administrative law judge for the National Labor Relations Board (NLRB), racist and profane comments made during union picketing qualify as protected concerted activity under the National Labor Relations Act (NLRA).

In Cooper Tire & Rubber Co., the employer and the union reached impasse during collective bargaining, and the employer locked out the employees and hired replacement workers. No. 08–CA–087155 (June 5, 2015). In response, the union employees picketed outside of the workplace. When vans of replacement workers arrived, the union employees made obscene gestures and shouted multiple racist and profane statements at the replacement workers. These statements included, but were not limited to, the following:

  • “Hey, did you bring enough KFC for everyone?”
  • “Go back to Africa, you bunch of f***ing losers.”
  • “Hey, anybody smell that? I smell fried chicken and watermelon.”

Consistent with the employer’s policies against racial harassment, the employer discharged the employee who made these statements. The employee then filed an unfair labor practice charge with the NLRB.

Because the comments were made during picketing related to a labor dispute, the ALJ concluded that the comments were protected concerted activity under the NLRA. The ALJ then considered whether the comments were so egregious as to lose their protection under the NLRA. The ALJ decided that because the statements did not tend to coerce or intimidate other employees in the exercise of their rights under the NLRA and did not raise a reasonable likelihood of imminent physical confrontation, the statements were not so egregious as to lose their protection.

The ALJ explained that while the comments were certainly “racist, offensive, and reprehensible, . . . they were not violent in character, and they did not contain any overt or implied threats to replacement workers or their property.” In addition, the comments were “unaccompanied by any threatening behavior or physical acts of intimidation.”

The ALJ also explained that picket-line activity is judged by a different, more lenient standard than activity in the workplace. Because the ALJ determined that the conduct was protected by the NLRA, it ordered the employer to reinstate the employee and pay him back-pay.

Takeaway: Although potentially subject to appeal, the Cooper Tire & Rubber Co. case is another in a series of cases (like this one) in which either an ALJ or the NLRB has found that reprehensible employee conduct is protected by the NLRA.

The Evolving Law Regarding Restroom Access for Transgender Employees

Just as Caitlyn Jenner has brought renewed attention to the issue of gender identity, there have been several recent legal developments relating to restroom access for transgender employees.  Here’s what employers should know:

First, the U.S. Department of Labor Occupational Safety and Health Administration (OSHA) recently released a guide regarding best practices for restroom access for transgender workers. The guide explains that OSHA’s sanitation standard requires that all employees, including transgender employees, must have access to sanitary restrooms. The guide further states that:

[A]ll employees should be permitted to use the facilities that correspond with their gender identity. For example, a person who identifies as a man should be permitted to use men’s restrooms, and a person who identifies as a woman should be permitted to use women’s restrooms. The employee should determine the most appropriate and safest option for him- or herself.

The guide further explains that the “best” employer restroom policies provide additional options, which employees may choose, but are not required to use. These options typically single-occupancy, gender-neutral facilities or multiple-occupant, gender-neutral facilities with lockable single occupant stalls.

Second, the EEOC decided a case in April of 2015 in which it held that an employer violated Title VII’s prohibition against sex discrimination by prohibiting a transgender employee from using the restroom that corresponded to her gender identity. The EEOC has interpreted Title VII to prohibit discrimination against transgender individuals since at least 2012.

In Lusardi v. McHugh, the employee worked for the U.S. Army and transitioned from male to female in 2010. (April 1, 2015). Following her transition, the employer restricted the employee from using the women’s restroom and required her to use a single-user restroom. The employee’s supervisor also continued to refer to her by male pronouns.

The EEOC held in Lusardi that even though other employees may be afraid or embarrassed to share a restroom with a transgender employee, “supervisory or co-worker confusion or anxiety cannot justify discriminatory terms and conditions of employment.” The EEOC further explained that “[a]llowing the preferences of co-workers to determine whether sex discrimination is valid reinforces the very stereotypes and prejudices that Title VII is intended to overcome.” The EEOC concluded that the Army’s restriction of the employee from the female restroom constituted discrimination on the basis of sex in violation of Title VII.

The EEOC’s Lusardi decision and the recent guidance from OSHA represents somewhat of a change in the law regarding transgender access to restrooms. For example, fourteen years ago, the Minnesota Supreme Court decided a case in which it held that the Minnesota Human Rights Act (MHRA) neither requires nor prohibits restroom designation according to self-image of gender or according to biological gender. Goins v. West Group, 635 N.W.2d 717 (Minn. 2001). Although this remains good case law for purposes of the MHRA, the Lusardi case and the recent OSHA guidance show that this reasoning is arguably inconsistent with the requirements of federal law.

Takeaway: Restroom access for transgender employees is one area in which the law appears to be in transition. Employers should continue to monitor developments regarding this subject, such as the recent OSHA guidance and the EEOC’s Lusardi case, to ensure they are in compliance with the most recent legal guidance.

What Employers Need To Know About The Supreme Court’s Abercrombie & Fitch Religious Discrimination Case

In EEOC v. Abercrombie & Fitch Stores, Inc., the U.S. Supreme Court reversed summary judgment in a case in which Abercrombie & Fitch was accused of religious discrimination due to its refusal to hire a Muslim woman whose headscarf was deemed inconsistent with the store’s “Look Policy.” No. 14–86 (June 1, 2015).

In the case, a woman interviewed for a job at Abercrombie & Fitch while wearing a headscarf. She did not inform the interviewer that she wore the headscarf for religious reasons, nor did she request an accommodation for her religious practices. The interviewer later consulted her supervisor about whether the headscarf would be consistent with the store’s “Look Policy,” which prohibited headwear. The interviewer informed her supervisor that she believed the woman wore the headscarf due to her faith. After the supervisor determined the headscarf would violate the company’s policy, the company decided not to hire the woman.

The Supreme Court held that there was sufficient evidence for a jury to conclude that the store violated Title VII by refusing to hire the woman to avoid accommodating her religious practices. Title VII requires employers to provide reasonable accommodations to an employee’s religious observances or practices unless it would impose an undue hardship on the conduct of the employer’s business. 42 U.S.C. § 2000e(j). The Court rejected the employer’s argument that it could not have discriminated against the applicant because it did not know for certain that she wore her headscarf for religious reasons and because she did not affirmatively request an accommodation.

The linchpin in the Court’s reasoning was the distinction between an employer’s “knowledge” and its “motive.” The Court explained that:

An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive. Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.

The Court further explained that “the rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.”

The Court strongly suggested that a plaintiff must prove that the employer at least “suspected” the practice in question was religious. Because there was no dispute that Abercrombie & Fitch suspected the woman’s headscarf was religious, however, the Court did not need to reach the issue of what level of proof was necessary to prove the employer’s suspicion.

Takeaway: Title VII prohibits employers from refusing to hire someone to avoid accommodating a “suspected” religious practice even if the employer does not know for certain that the practice in question is religious.

Can Caucasian Employees Bring Race and National Origin Discrimination Claims?

Yes – a recent case illustrates that Caucasian employees from the United States may be able to prevail on claims for race and national origin discrimination under Title VII.

In Koehler v. Infosys Technologies Limited, Inc., a group of Caucasian employees from the United States filed race and national discrimination claims as a putative class action against their employer. No. 13-CV-885-PP (E.D. Wis. May 8, 2015). The employees alleged that their employer, which was based in India, systematically discriminated against Caucasian employees and employed predominantly South Asian employees with either Indian, Bangladeshi, or Nepalese national origins.

The complaint alleged that in one business unit, approximately 96% of the employees were South Asian. One of the Caucasian plaintiffs alleged that the employer set unrealistic goals for him, denied him bonuses, and fired him soon after he finalized a contract with a major client. Another Caucasian plaintiff alleged that she interviewed for a higher position, but was hired for a lower position with less pay and responsibilities, and that she was continually denied promotions as other South Asian employees were promoted.

The complaint also alleged that some of the employer’s executives openly acknowledged the alleged discrimination. For example, the complaint alleged that the executives encouraged recruiters to hire South Asians because “they will work off the clock without murmur and they can always be transferred across the nation without hesitation unlike [a] local workforce.”

After the complaint was filed, the employer filed a motion to dismiss. The court denied the motion, reasoning that the complaint set forth plausible claims of race and national origin discrimination. As a result, the plaintiffs’ claims will proceed to the discovery phase of litigation.

Takeaway: It’s important for employers to remember that all employees belong to one protected class or another, whether its race, national origin, gender, sexual orientation, or another status. An employee may be able to assert plausible claims of discrimination even if the employee belongs to a group that is not characteristically associated with discrimination.

If an Employee Reports Harassment to Her Supervisor, But No One Else, Is The Faragher/Ellerth Defense Still Available?

Potentially – a recent case shows that the Faragher/Ellerth defense may still be viable if the employee reports alleged harassment to her supervisor, but does not report the matter to higher-level management officials as directed by the employer’s anti-harassment policy.

The Faragher/Ellerth defense is one of the strongest tools available to employers to defeat hostile work environment harassment claims. It protects an employer from liability when the employer can show: (i) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (ii) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

In Daniel v. Autozone, Inc., an employee sued her employer alleging claims for discrimination, retaliation, and hostile work environment harassment under Title VII. No. 1:13-cv-118 (N.D.N.Y. May 6, 2015). The employee alleged that soon after she started the job, other employees harassed her on a regular basis by making racially offensive statements and calling her derogatory names. The employee alleged that she reported the harassment to her direct supervisor, who did nothing about it, but no one else.

In response to the employee’s harassment claim, the employer raised the Faragher/Ellerth affirmative defense. The employer had a detailed harassment policy, which directed employees to first report alleged harassment to their supervisors. The policy also stated that if employees were not satisfied with their immediate supervisor’s response, they could direct their complaints to higher levels of management, including a 1-800 reporting number. Because it was undisputed that the plaintiff was aware of the policy and never followed its procedures, the court held that the employer was protected by the Faragher/Ellerth defense and dismissed the plaintiff’s harassment claim against the employer.

On the other hand, the individual defendants in the lawsuit – including the supervisor who allegedly did not respond to the employee’s complaints of harassment – were not so lucky. The court allowed claims to proceed against the individual defendants under 42 U.S.C. § 1981 and New York state law.

Takeaway: Anti-harassment policies should include multiple avenues for employees to report harassment, including the option for an employee to report to higher levels of management if a direct supervisor’s response is insufficient. The Daniel v. Autozone, Inc. case shows that this kind of policy will enable an employer to use the Faragher/Ellerth affirmative defense even if the employee reported alleged harassment to her direct supervisor, but did not otherwise follow the policy.