Tuesday, March 31, 2015

Map of States that Explicitly Ban Discrimination in Employment of LGBT Community

In light of all the events taking place in Indiana regarding their Religious Freedom Restoration Act law passing, people might be interested to know which states have laws that protect the LGBT community in their employment as no such law exist at the federal level due to the Employment Nondiscrimination Act (ENDA) constantly being stalled and shelved.

As most people may be aware, Wisconsin, under the Wisconsin Fair Employment Act (WFEA), does provide protection, but only for "sexual orientation," not gender identity.

4th Circuit Holds Social Anxiety May Be Disability Under the ADA

As most employment lawyers are aware, the Equal Employment Opportunity Commission (EEOC), as the administrative agency entrusted as experts in enforcing the nation's anti-discrimination laws, often issues writings like compliance letters, enforcement guides, etc where they often take positions on how to apply the law in certain situations.  Toward that end the EEOC defined the “ability to interact with others” as a major life activity, bringing social anxiety disorder into the scope of protection afforded by the Americans with Disabilities Act (“ADA”).  Recently the Court of Appeals for the Fourth Circuit agreed in Jacobs v. N.C. Admin. Office of the Courts, No. 13-2212 (4th Cir. Mar. 12, 2015).

The plaintiff, Christina Jacobs, had been promoted to be one of 30 deputy clerks where she was assigned to assist customers at the front counter, a job assigned usually to the most junior deputy clerks. While in this assignment, she began to experience extreme stress and panic attacks stemming from her previously-diagnosed social anxiety disorder.  Logically, Jacobs then went to her supervisor about her health issues, along with her social anxiety disorder.  The supervisor suggested Jacobs seek treatment and then informed her own supervisor about the issue.  Jacobs did seek treatment, but then sent an email to her three supervisors that once again disclosed her disability and asked for an accommodation. The employer never acted on the accommodation request and then terminated Jacobs three weeks later for allegedly poor performance and filed a charge with the EEOC claiming the firing was in retaliation for the accommodation request.  The lower district court granted summary judgment on all counts alleged.

In addition to the employer losing their argument that social anxiety disorder isn't a disability under the ADA, the employer also could have easily accommodated Jacobs given she was one of 30 deputy clerks with the same title and job description, where only 4-5 of those clerks were assigned to front desk work.  The other 25-26 clerks performed work that did not require interaction with the public as the front desk position was one more of seniority than it was of skill.  Thus, the likelihood of the employer showing undue hardship was weak.  

The employer also failed miserable in showing their legitimate nondiscriminatory reason for terminating Jacobs because they had next to no documentation of her alleged poor performance.  The witnesses for the AOC testified that Jacobs had performance issues and was a poor employee long before she received assignment to the front counter, but the AOC had no documentation to back any of it up.  However, it appears those witnesses were rather unpersuasive.

Tuesday, March 24, 2015

EEOC Settles ADA Case Against Employer Who Did Not Offer Medical Leave to Probationary Employees

The Equal Employment Opportunity Commission (EEOC) has announced it has settled a disability discrimination lawsuit against a Pennsylvania pipe-fitting manufacturer, Exeflow USA, Inc., for $65,000 when they failed to provide medical leave to a U.S. Marine Corps veteran, Adam Brant, when he experienced seizures caused by service-related disabilities.  EZEFLOW USA denied the request because Brant was still a probationary employee.

EZEFLOW USA did, however, offer up to 26 weeks of paid leave to non-probationary employees.  Probationary employees are not eligible for leave under the Family and Medical Leave Act (FMLA), but the EEOC has long held that the Americans with Disabilities Act (ADA) covers probationary employees, who are entitled to accommodations under the ADA.

This case again highlights the importance for employers to review requests for medical leave on an individualized basis and not apply universal rules and policies to all requests.  This interactive process is crucial for determining whether the employee's absence will affect the company's operations.  Although here the requested leave was of a specific duration, if no time frame is given, employers should explain to the employee how his absence would impinge on their business. Employers should then request a reasonable estimate of when the employee will be able to resume his essential job functions — with or without an accommodation — to enable them to better assess whether leave can be provided as a reasonable accommodation, or would impose an undue hardship on the employer. Unfortunately, there is no bright line rule outlining the length of leave employers must grant as an ADA accommodation. Instead, the ADA requires this individualized interactive process for each employee requesting leave.

The case was EEOC v. EZEFLOW USA, Inc., Civil Action No 02:14-cv-527

Former Twitter Enginner Files Sex Discrimination Suit

A former female engineer, Tina Huang, for popular social media website, Twitter, has filed a proposed class action lawsuit alleging that Twitter’s promotion process unfairly favors men.  Huang alleges, among other things, that Twitter has no formal promotion process and relies on a "shoulder tap" custom, which explains why few women are in higher-level positions with the company.

This lawsuit is just one of a few made by former female employees at these popular websites as Time magazine reports:

The lawsuit against Twitter follows similar claims made against Facebook last week by Chia Hong, who accused Facebook of wrongful termination in 2013 after allegedly being harassed based on her gender, race and Taiwanese nationality. Facebook has denied Hong’s accusations.

Hong’s lawyers are also involved in a similar case against venture capital firm Kleiner Perkins, which former employee and current interim Reddit CEO Ellen Pao sued for gender discrimination. A judge upheld Pao’s claims on Saturday, saying “There is sufficient evidence from which a reasonable juror could conclude that Kleiner Perkins engaged in intentional gender discrimination.”

Tuesday, February 10, 2015

EEOC Releases Fiscal Year 2014 Enforcement and Litigation Data

It's available here.  From the EEOC press release on the 2014 data:

The number of charges filed decreased compared with recent fiscal years, due in part to the government shutdown during the reporting period. While charge filings were down overall compared to the previous fiscal year, first quarter charge filings--which included the period of the shutdown--were 3,000 to 5,000 less than the other quarters.

Among the charges the EEOC received, the percentage of charges alleging retaliation reached its highest amount ever: 42.8 percent. The percentage of charges alleging race discrimination, the second most common allegation, has remained steady at approximately 35 percent. In fiscal year 2014, the EEOC obtained $296.1 million in total monetary relief through its enforcement program prior to the filing of litigation.

The number of lawsuits on the merits filed by the EEOC's Office of General Counsel throughout the nation was 133, up slightly from the previous two fiscal years. A lawsuit on the merits involves an allegation of discrimination, compared with procedural lawsuits, which are filed mostly to enforce subpoenas or for preliminary relief. Monetary relief from cases litigated, including settlements, totaled $22.5 million.

More specifically, the charge numbers show the following breakdowns by bases alleged in descending order.
  • Retaliation under all statutes: 37,955 (42.8 percent of all charges filed)
  • Race (including racial harassment): 31,073 (35 percent)
  • Sex (including pregnancy and sexual harassment): 26,027 (29.3 percent)
  • Disability: 25,369 (28.6 percent)
  • Age: 20,588 (23.2 percent)
  • National Origin: 9,579 (10.8 percent)
  • Religion: 3,549 (4.0 percent)
  • Color: 2,756 (3.1 percent)
  • Equal Pay Act: 938 (1.1 percent) but note that sex-based wage discrimination can also be charged under Title VII's sex discrimination provision
  • Genetic Information Non-Discrimination Act: 333 (0.4 percent)
  Here is the data for Charges filed in Wisconsin.

EEOC Loses Pattern-or-Practice Claim, Allowed to Pursue Individual Prayer Break Religious Discrimination Claims

In April 2011, the Equal Employment Opportunity Commission ("EEOC") filed a joint Bifurcation Agreement to bifurcate discovery and trial into two (2) phases:  Phase I involved the EEOC's pattern-or practice claims, and Phase II were for all individual claims for relief, and "[a]ny claims for which no pattern or practice liability was found in Phase I and any claims not tried in Phase I shall be tried under the traditional McDonnell-Douglas burden-shifting paradigm [in Phase II], including all claims of harassment/hostile work environment, as well as "[I]ndividual entitlement to back pay, compensatory, and punitive damages."

A trial was held on the EEOC's pattern or practice claims May 7-17, 2013.  At the close of evidence, the defendant, JBS USA, LLC ("JBS"), made an oral motion for judgment on partial findings pursuant to FRCP 52(c) and the Court concluded that although the EEOC established a prima facie case of denial of religious accommodation, the requested accommodations imposed an undue burden on JBS.  Thus, JBS argued that the Court's Findings of Fact and Conclusions of Law in Phase I preclude the individual Plaintiffs from pursuing claims of religious discrimination and retaliation in Phase II. 

In arguing for issue preclusion, JBS pointed out that the Court found that (a) JBS did not discipline or discharge any of its Muslim employees for praying, and (b) Somali-Muslim employees who left the plant the night of September 18, 2008, were terminated for withholding work and violating the Collective Bargaining Agreement ("CBA").  Thus, JBS asserted, these findings establish that its reason for terminating the employees was legitimate and nondiscriminatory, and preclude Plaintiffs from pursuing claims that they were terminated or otherwise retaliated against for requesting religious accommodation.  Furthermore, because the Court concluded the Plaintiff's requested religious accommodations would impose an undue hardship on JBS, JBS argued that they did not unlawfully deny Plaintiffs' requested religious accommodations.

Issue Preclusion

The opinion obviously discussed the 5 elements a party must show in order for issue preclusion to be found.  The Court then found that (1) the EEOC and the Individual Plaintiffs were in privity during Phase I, (2) the issue raised in the second proceeding was raised in the first proceedings by the party sought to be precluded and the fact that Phase II is to be analyzed under a different analytical framework (Teamsters pattern or practice analysis vs. McDonnell Douglas framework) has no bearing on whether issue preclusion apples, (3 & 5 were discussed jointly)  the issue of undue hardship were fully-litigated in Phase I and will not be re-litigated in Phase II.  However, with respect to employee discipline and reasons for termination, the Court held that they did not make a thorough and meaningful assessment of whether any Plaintiff suffered an adverse employment action as the result of discrimination or retaliation, because such claims were outside the scope of Phase I. 

Failure to Conciliate

JBS moved for summary judgment to dismiss the EEOC's three Phase I pattern or practice claims on the grounds the EEOC had failed to satisfy the conciliation requirement prior to bringing the lawsuit as case law and statute states, "The EEOC may bring a direct suit against an employer only after it has attempted to conciliate in good faith but failed to reach an agreement."  EEOC v. Trans State Airlines, Inc., 462 F.3d 987, 996 (8th Cir. 2006) (citing 42 U.S.C. sec. 2000e-5(f)(1); Johnson v. Nekoosa-Edwards Paper Co., 558 F.2d 841, 848 (8th Cir. 1977)).  The Court found that the EEOC's conciliation efforts allow it to avoid dismissal.

The Court also noted that since the time the Court first considered this issue, a circuit split has arisen as to whether failure to conciliate is an affirmative defense and the Supreme Court has granted certiorari on the question of "[w]hether and to what extent may a court enforce the EEOC's mandatory duty to conciliate discrimination claims before filing suit?"  Thus, the Court decided not to resolve the issue at this time, but did not preclude JBS from reasserting its position after the Supreme Court issues its opinion in Mach Mining, LLC v. EEOC.

The case is EEOC v. JBS USA, LLC, No. 8:10-CV-318 (D. Neb. Jan. 28, 2015),

Monday, February 2, 2015

Former Walgreen's Employee Who was Told "Go Work with Own Kind at 7-11" Allowed to Advance Claims

In a federal case out of the Northern District of California, a former store manager for popular retailer and pharmacy, Walgreen's, was allowed to advance his age and national origin discrimination claims after the Court found that the plaintiff, Hassen Almaweri, "rasied a triable issue of fact as to his prima facie case and as to pretext."

This case is relatively interesting because the Opinion spends 10 of its 19 pages discussing the facts alone as this case was drenched in facts that were dispositive in Walgreen's motion for summary judgment.  As I often tell clients who telephone me inquiring about whether they have meritorious claims for discrimination: "the devil is often in the details."

Almaweri, prior to his termination, was allegedly having performance issues as evidenced by disciplines and a performance improvement plan ("PIP") he was issued, but Almaweri was also able to show that his stores were performers. This helped him show that not only was he "performing the job to the employer's reasonable expectation," but helped him show pretext.  Further helping him show pretext was the disputed fact that Almaweri's 'Community Leader' reportedly told him to go work at "7-Eleven" with his "kind of people."

It's clear extensive and 'smart' discovery was engaged as the Plaintiff was able to unveil several areas where he was performing his job well/above-par compared to similarly-situated employees, yet got fired after working for Walgreen's for over 20 years while other managers performed worse and received higher marks in their evaluations despite receiving similar remarks.  The Opinion took great effort to discuss these evaluations and performance evaluations.

The case is Almaweri v Walgreen Specialty Pharmacy, LLC, January 26, 2015, (NDCal, Laporte, E.) and worth the 19-page read.

Tuesday, January 27, 2015

House Democrats Introduce Bill to Give Federal Employees Paid Parental Leave

Following President Obama's calls during his annual State of the Union Address to provide paid leave for employees in both the private and public sectors, a group of Democrats in the House yesterday proposed a bill that would provide federal employees with six (6) weeks of paid leave for purposes related to the birth or adoption of a child. 

From the Washington Post article on the proposed legislation:
Currently, federal employees are eligible for 12 weeks of unpaid parental leave and can substitute paid sick and annual leave for part or all that unpaid time. Agencies additionally may advance leave for those purposes to employees who have accumulated an insufficient amount; the memo essentially removed the discretion they had over whether to grant such requests. 
Federal employees receive 13 days of sick leave a year with no limit on how much they can build up. They also get between 13 and 26 days of annual leave per year, depending on their length of service, but generally can carry no more than 30 days of it from one year to the next. Advanced leave amounts to borrowing against leave to be earned in the future. 
The momentum for such legislation in the private sector is still dim, if not non-existent.  This is at least an admirable step in Congress.

Wednesday, January 21, 2015

Massachusetts Amends Maternity Leave Law to Provide Greater Protections to Employees

Earlier this month, the former Governor of Massachusetts, Deval Patrick, signed into law “An act relative to parental leave,” amending and replacing the Massachusetts Maternity Leave Act (“MLA”). 

The original MLA provided eight (8) weeks of protected leave to female employees for the birth or adoption of a child, but, under the new law, protected leave is now extended to male employees as well.  The law applies to employers with six (6) or more employees and eligible employees only need to work for the employer for three (3) months. 

The new MLA may also may cover eligible employees beyond the eight-week leave period. According to the Act, if an employer agrees to provide parental leave for longer than eight weeks, the employer shall not deny the employee his or her rights under this section (including reinstatement), unless the employer clearly informs the employee in writing prior to the commencement of the leave and prior to any subsequent extension of that leave. Specifically, the employer must inform the employee that taking longer than eight weeks of leave will result in the denial of reinstatement or loss of other rights and benefits.

Additional changes to the MLA include:
  • If both parents work for the same employer, they are entitled to eight weeks in the aggregate for the birth or adoption of the same child;
  • While employees still must give at least two weeks’ notice prior to taking leave and returning from leave, the new law contains an exception for employees to provide notice “as soon as practicable” if delay is for reasons beyond the employee’s control;
  • Employers may decide whether the leave is paid or unpaid; and
  • Employees who have a child placed with them pursuant to a court order are also covered.
(Hat tip to Nixon Peabody for the news on this new law).

Thursday, January 15, 2015

Can My Employer Deduct From My Paycheck/Dock My Pay?

A very common question people have is whether their employer may deduct from their pay, or, dock their pay, for things like stolen items, mistakes, cash register shortages, damage to equipment, etc.  The answer is two-fold.

The Fair Labor Standards Act ("FLSA") is the federal legislation that applies to all employers in the United States and it allows for deductions from an employee's pay (nonexempt employees, that is) so long as it does not cut into the employee's minimum wage (currently $7.25/hour) or overtime pay.  Otherwise, the employer may make any deductions to their benefit.  Do note, however, that the FLSA does allow for deductions that do affect an employee's minimum wage or overtime pay for things like state and federal taxes, social security, and child support orders.

Since federal legislation doesn't protect employees much from paycheck deductions, it is then left for the individual states to pass legislation to restrict such.  In Wisconsin, employees have been protected from certain deductions since 1931 per Wis. Stat. section 103.455.    Subject to three (3) exceptions, Wis. Stat. sec. 103.455 provides: 
“No employer may make any deductions from the wages due or earned by any employee, who is not an independent contractor, for defective or faulty workmanship, lost or stolen property or damage to property.” According to the Wisconsin Supreme Court, the law “is aimed at preventing employers from using coercive economic power to shift the burden of a work[-]related loss from the employer to the employee.”
The three (3) exceptions are:
1)  unless the employee authorizes the employer in writing to make that deduction, or2)   unless the employer and a representative designated by the employee determine that the defective or faulty workmanship, loss, theft or damage is due to the employee's negligence, carelessness, or willful and intentional conduct, or3)  unless the employee is found guilty or held liable in a court of competent jurisdiction by reason of that negligence, carelessness, or willful and intentional conduct.
If an employer in Wisconsin violates Wis. Stat. sec. 103.455, the statute provides a remedy of "twice the amount of the deduction or credit taken in a civil action brought by the employee."  Thus, employers ought to tread very lightly when considering docking an employee's pay in Wisconsin.