Category Archives: Discrimination and Harassment
Although the EEOC’s subpoena authority is broad, a recent 11th Circuit Court of Appeals case shows that it has limits.
In EEOC v. Royal Caribbean Cruises, Ltd., the 11th Circuit affirmed the lower court’s holding that an EEOC subpoena was overbroad and unenforceable. The case began when a single employee from the cruise ship filed a charge of alleged disability discrimination with the EEOC. The employer defended its decision not to re-hire the employee by arguing that it could not employ the employee due to standards developed by the Bahamas Maritime Authority (BMA). After the charge was filed, the EEOC issued an administrative subpoena that requested the employer to produce the following information:
- A list of all employees who were discharged or whose contracts were not renewed due to a medical reason since August of 2009;
- For each employee identified in response to request number 1, the employee’s name, citizenship, employment contract, position title, reason for and date of discharge, a copy of the separation notice and the last known contact information for each individual;
- For each employee listed in response to request number 1, the employee’s employment application and related correspondence, interview notes, the identity of the person who hired the employee, how the employee obtained the position (e.g., online, in person, recruiter), the location where the employee was interviewed, and the identity and location of the person who made the final hiring decision;
- A list of all persons who applied for a position but were not hired within the relevant period due to a medical reason; and
- For each employee listed in response to request number 4, the employee’s citizenship, employment application and related correspondence, interview notes, the identity of the person who hired the employee, how the employee obtained the position (e.g., online, in person, recruiter), the location where the employee was interviewed, and the identity and location of the person who made the final hiring decision.
The district court refused to enforce the subpoena on the grounds that the information sought was not relevant to the underlying charge of discrimination, and the EEOC appealed.
The 11th Circuit explained that when investigating a charge of discrimination, the EEOC is entitled to subpoena information that “is relevant to the charge under investigation.” 42 U.S.C. § 2000e-8(a). Although courts have interpreted relevancy broadly in this context, it is not limitless.
The 11th Circuit held that it was not clear “why company-wide data regarding employees and applicants around the world with any medical condition, including conditions not specifically covered by the BMA medical standards or similar to [the employee’s medical condition], would shed light on [the employee’s] individual charge . . . .” The court noted that because the employer admitted terminating the employee due to his medical condition, as required by BMA standards, there was no need for statistical data to determine whether the employer’s reason for the termination was a pretext for discrimination – that issue was settled. The court further explained that it would be unduly burdensome for the company to comply with the subpoena given its company-wide scope and the extensive requests for supporting documentation. As a result, the 11th Circuit affirmed the lower court’s refusal to enforce the subpoena.
Takeaway: The EEOC’s subpoena power is broad, but not unlimited. If information sought by an EEOC subpoena is not relevant to the underlying charge of discrimination, there may be a basis for an employer to oppose the subpoena. But employers need to act quickly when they receive an EEOC subpoena because EEOC regulations only give employers a limited period of five days to object to a subpoena.
The U.S. District Court for the District of Minnesota recently denied a motion for a preliminary injunction against aspects of Honeywell’s wellness program.
In EEOC v. Honeywell International, Inc., the EEOC challenged certain surcharges that Honeywell imposes on employees who participate in the Company’s High Deductible Health Plan and do not participate in a wellness program with required biometric screenings. No. 14-4517 ADM/TNL (D. Minn., Nov. 6, 2014). In order to be eligible for a Health Savings Account, employees who participate in the wellness program are required to be screened for blood pressure, height, weight, waist circumference, and cholesterol, glucose and nicotine levels. Employees who do not participate are subject to a $500 annual surcharge. Employees and their spouses may also be subject to $1,000 annual surcharge if they are tobacco users. Employees and spouses who refuse to be screened are presumed to be tobacco users, unless they establish that they are tobacco free in another way. When employees agree to the testing, Honeywell receives the data in aggregate form, but does not receive individual results.
The EEOC alleges that Honeywell’s wellness program violates the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) and sought a preliminary injunction against the imposition of surcharges while the case is pending. The court denied the motion for a preliminary injunction.
In order to obtain a preliminary injunction, the EEOC needed to show four things: (1) the threat of irreparable harm; (2) that the balance of harms favored the injunction; (3) the likelihood of success on the merits; and (4) that the public interest favored the injunction. The court found that the EEOC failed to prove irreparable harm, explaining that the three employees represented by the EEOC had already agreed to the biometric testing and did not demonstrate any potential violation of their privacy. The court also found that the balance of harms did not favor the injunction because the injunction would likely result in increased costs for Honeywell’s healthcare program and would create problems for the administration of the health plan.
With respect to likelihood of success on the merits, the court did not analyze the issue in-depth, but identified some potential problems for the EEOC’s case. First, the Court noted that Honeywell’s wellness program may qualify for the safe harbor provision of the ADA, which allows companies to establish or administer “the terms of a bona fide benefit plan that are based on underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with state law.” 42 U.S.C. § 12201(c)(2). Second, the court noted that Congress specifically approved of surcharges in a provision of the Affordable Care Act, which provides that “the absence of a surcharge” may be used as a reward in a wellness program. Third, the court noted that the biometric screening may not constitute a “genetic test” for purposes of GINA, which is defined as “analysis of human DNA, RNA, chromosomes, proteins, or metabolites, that detects genotypes, mutations, or chromosomal changes.” 29 U.S.C. § 1191b(d)(7).
The court concluded by stating that “great uncertainty persists in regard to how the ACA, ADA and other federal statutes such as GINA are intended to interact.” As a result, the Court refused to issue a preliminary injunction against Honeywell’s wellness program.
Takeaway: The Honeywell case is an important test case regarding the viability of wellness programs with financial surcharges. The Court’s initial denial of the EEOC’s motion for a preliminary injunction is a positive sign that the practice may be permissible, but it is not a final decision on the merits.
The EEOC filed its lawsuit against CVS last spring. The case was alarming to employers because it challenged a number of provisions that are fairly routine in employee settlement agreements (e.g., confidentiality, non-disparagement, etc…). Many were awaiting a court decision addressing the merits of the EEOC’s arguments to see what implications it might have for employment settlement agreements.
Unfortunately, the court dismissed the case on a technicality, without addressing the merits of the EEOC’s claims. Specifically, the court dismissed the case on the grounds that the EEOC failed to attempt to conciliate the matter with CVS before bringing its lawsuit, as required by 42 U.S.C. § 2000e-5(b). Because it was undisputed that the EEOC did not first attempt to conciliate the matter, the court held that the EEOC was not authorized to bring the lawsuit and dismissed the case.
Takeaway: Because the CVS case was dismissed on a technicality, employers will need to wait longer to find out whether courts will find any merit in the EEOC’s aggressive new approach to settlement agreements.
Not unless it’s based on gender – a court recently rejected a plaintiff’s sexual harassment claim because there was no evidence that the alleged harasser’s fat jokes and other inappropriate behaviors were based on gender.
In Carboni v. Fort Wayne Community School Corp., the plaintiff was a teacher who alleged that her mentor, a middle school principal, subjected her to unlawful sexual harassment under Title VII of the Civil Rights Act by acting like a middle school student, not a principal. Civ. No. 1:12-CV-167 (N.D. Ind., Sep. 15, 2014). The plaintiff alleged that the principal made jokes about people, particularly women, being fat. She alleged that he would “would approach a coworker, yell ‘spider,’ raise his leg, and pass gas directly at the coworker.” She also alleged that he frequently used the F-word in the presence of co-workers. Despite this objectionable behavior, the principal gave the plaintiff a positive review.
In rejecting the plaintiff’s claim, the court explained that “many of the complaints about [the principal’s] behavior lack any sexual or gender component, character, or overtones, and the Plaintiff makes no attempt to explain how these actions were directed at her because of her gender.” Much of the conduct was directed at both male and female employees, and frequently was not directed at the plaintiff at all.
The only potential gender component of the plaintiff’s claim was the principle’s telling of fat jokes, which the plaintiff characterized as “fat woman jokes.” But the court found that “[i]f anything, his misconduct was focused on weight, not gender.” Because the plaintiff did not produce sufficient evidence that the principal’s misconduct was based on gender, the court granted the employer’s motion for summary judgment and dismissed the plaintiff’s sexual harassment claim.
Takeaway: Anti-discrimination laws do not totally prohibit people from acting in an immature or crass manner. It is generally lawful for co-workers and supervisors to act like jerks – or middle school students, for that matter – provided that the conduct is not based on a protected category, like gender, race, or religion. Even then, the conduct must be sufficiently severe so that “that discriminatory intimidation, ridicule, and insult permeated the workplace” in order to be actionable.
With Hobby Lobby and other prominent cases making religion and the workplace part of the current public discourse, many employment lawyers expect a heightened interested on employees’ and applicants’ parts in claims of religious discrimination in the workplace. As that occurs, employers need to bear in mind some essential legal facts and an important nuance.
Both the federal Civil Rights Act Title VII and the Minnesota Human Rights Act (MHRA) prohibit employment discrimination based on an employee’s religious beliefs and practices. An employer cannot compel religious practices and under certain circumstances cannot prohibit them. The protections are not limited to the doctrines of organized religions but can include personal spiritual beliefs and atheistic convictions. In essence, the statutes and interpretive case law require employers to permit employees to practice their religious faith during the work day if such practices do not interfere with job requirements or the rights and job performance of co-workers. Designated prayer areas, permitted workspace decorations and dress code variances can all come under the rubric of such accommodations. There can often be some touchy situations requiring careful legal review and guidance.
However, unlike the reasonable accommodation requirements of the Americans with Disabilities Act, the accommodation of employee religious practices are required only so long as the accommodation does not cause more than a “minimal burden” on the operations of the employer’s business. That is, the EEOC’s general standard for determining undue hardship is whether accommodation of the employee’s religious practices causes the employer to incur greater than minimal costs – which has been defined by the EEOC as “more than ordinary administrative costs.” For example, an employee’s desire to observe religious days may not require disrupting the employer’s standard shifts and workplace operations when accommodation of a disability may so require. The courts and the EEOC also recognize particular latitude in the employer’s response by way of offered accommodation and require that the employee clearly articulate his or her religious beliefs and requested accommodation since religious affliction is not necessarily self-evident, such as membership in other protected categories.
Takeaway: For religious accommodation requests and discrimination claims, employers have certain protections and the law has certain nuances that can differentiate the situation from other types of discrimination problems. With a societal focus on religious rights and the workplace, employers and counsel need to carefully bear this difference in mind.
It’s possible that during the next legislative session, the Minnesota legislature will pass additional provisions to expand on the Women’s Economic Security Act (WESA).
In May of 2014, the Minnesota Legislature passed WESA, which made a number of changes to employment law in Minnesota. These changes included requiring accommodations for pregnant employees, requiring certain state contractors to obtain equal pay certificates, expanding parental leave under state law from 6 weeks to 12 weeks, and prohibiting discrimination on the basis of “familial status,” among other things.
Shortly after WESA became law in Minnesota, a summit was held in Duluth. At the summit, House Speaker Paul Thissen and Senator Sandra Pappas, both supporters of WESA, discussed additional steps that may be taken during future legislative sessions. With respect to employment law, these additional steps included: (i) potentially requiring employers to offer paid sick leave to employees; and (ii) adding “family caregiver” as a protected status under the Minnesota Human Rights Act.
Takeaway: The Minnesota legislature may attempt to pass laws to require paid sick leave or create new family caregiver protections during the next legislative session. Employers who feel strongly about these potential changes, either for or against, may want to consider contacting their local representatives about these issues prior to the beginning of the next legislative session.
Recent Executive Orders Address Sexual Orientation and Gender Identity Discrimination And Require Disclosure of Labor Law Violations
President Obama recently signed two executive orders that prohibit federal contractors from discriminating on the basis of sexual orientation or gender identity and require federal contractors to disclose certain labor law violations, in addition to other requirements. Here’s what employers need to know about these executive orders:
Sexual Orientation/Gender Identity Discrimination: On July 21, 2014, President Obama signed an executive order, which amended previous executive order no. 11246. The primary effect of the executive order is that federal contractors are now prohibited from discriminating on the basis of sexual orientation or gender identity in employment, in addition to the other classes protected by executive order no. 11246 (race, color, religion, sex, and national origin). The Secretary of Labor may require that contractors provide a signed document certifying compliance with this requirement. Discrimination on the basis of any protected class may constitute a violation of a federal contract and render the contractor ineligible for future federal contracts.
Fair Pay and Safe Workplaces: On July 31, 2014, President Obama signed the “Fair Pay and Safe Workplaces” executive order. The executive order has three primary components that affect federal contractors and subcontractors: (i) disclosure of violations; (ii) paycheck transparency; and (iii) arbitration agreements.
Disclosure of Violations: The executive order requires that in order to be eligible for a federal contract for goods and services, including construction, where the estimated value of the supplies acquired and services required exceeds $500,000, a federal contractor must disclose any “administrative merits determination, arbitral award or decision, or civil judgment” rendered against the contractor within the preceding 3-year period for violations of any of the following laws or executive orders:
- The Fair Labor Standards Act;
- The Occupational Safety and Health Act;
- The Migrant and Seasonal Agricultural Worker Protection Act;
- The National Labor Relations Act;
- The Davis-Bacon Act;
- The Service Contract Act;
- Executive Order 11246 (Equal Employment Opportunity);
- The Rehabilitation Act;
- The Vietnam Era Veterans’ Readjustment Assistance Act;
- The Family and Medical Leave Act;
- Title VII of the Civil Rights Act of 1964;
- The Americans with Disabilities Act;
- The Age Discrimination in Employment Act;
- Executive Order 13658 of February 12, 2014 (Establishing a Minimum Wage for Contractors); or
- Equivalent state laws, as defined in guidance issued by the Department of Labor.
Federal contractors will be permitted an opportunity to disclose any steps taken to correct the violations or improve compliance with any of the labor laws listed above. For contracts that exceed $500,000 and that are not for commercially available off-the-shelf items, subcontractors will also be required to make similar disclosures. In addition to the pre-award disclosure, covered contractors and subcontractors will be required to provide updated disclosures every 6 months for as long as the contract is performed.
Paycheck Transparency: The executive order requires that a contractor must provide to any individual for whom wage records must be kept under the FLSA, the Davis-Bacon Act, the Service Contract Act, or similar state laws, a document that identifies individual’s hours worked, overtime hours, pay, and any additions made to or deductions made from pay. For contracts that exceed $500,000 and that are not for commercially available off-the-shelf items, subcontractors will be required to make the same disclosures. In addition, if an individual is performing work as an independent contractor, the contractor must provide a document informing the individual of this status.
Arbitration Agreements: For federal contracts and subcontracts where the estimated value of the supplies acquired or services required exceeds $1 million, contractors and subcontractors must agree that any decision to arbitrate claims arising under Title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment may only be made with the voluntary consent of employees or independent contractors after such disputes arise. However, this provision does not apply to: (i) contracts or subcontracts for the acquisition of commercial items or commercially available off-the-shelf items; (ii) employees covered by a collective bargaining agreement; or (iii) any employees or independent contractors who entered into a valid contract to arbitrate prior to the contractor or subcontractor bidding on the covered contract – unless the contractor or subcontractor is permitted to change the terms of the contract with the employee or independent contractor, or the contract is renegotiated or replaced.
In 2008, Congress enacted the Genetic Information and Nondiscrimination Act (GINA), which prohibits genetic information discrimination in employment. 24 U.S.C. § 2000ff-1. While the passage of GINA was significant, Minnesota employers had already been restricted at that time regarding the administration or use of genetic testing for seven years.
In 2001, the Minnesota legislature enacted a similar statute regarding genetic testing in employment. Minn. Stat. § 181.974. That statute restricts an employer or employment agency from directly or indirectly (i) administering a genetic test or requesting, requiring, or collecting protected genetic information regarding a person as a condition of employment or (ii) affecting the terms or conditions of employment or terminating the employment of any person based on protected genetic information. Further, no person is permitted to provide or interpret for any employer or employment agency protected genetic information on a current or prospective employee. “Protected genetic information” means (i) information about a person’s genetic test or (ii) information about a genetic test of a blood relative of a person.
Unlike GINA which applies to employers with 15 or more employees, this state statute applies to employers with one or more employees in Minnesota. The law does not apply to independent contractors. The cost of non-compliance is significant. A person may bring a civil action in which the court may award (i) up to three times actual damages suffered, (ii) punitive damages, (iii) reasonable costs and attorney fees, and (iv) injunctive or other equitable relief.
Takeaway: Smaller employers who may not be covered by GINA should be aware that they are nonetheless restricted by the similar Minnesota law prohibiting genetic information testing.
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.
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.
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!”