Sticks and stones: Watch what your managers say at work
February 23rd, 2014 | Joy Waltemath | Add a Comment
By Joy P. Waltemath, J.D.
People say the darnedest things at work. In the last few months, courts have addressed some amazing comments by managers and supervisors that did not result in any liability. While these may have been employer “victories” in the sense that there was no finding of liability, in every case they did result in litigation. Employers relying for protection on the general proposition that the law has not imposed a general civility code on employer-employee relations should make note of the fact that such comments might not result in a damages award, but they do seem to drag employers regularly into court.
And, of course, some comments do cross the line and result in employer liability – either on their own or, more frequently, as evidence supporting discriminatory intent.
Comments alone not enough for employer liability
Pain in the ass. For example, in a negligence and defamation action against the employer, a director of sales described his sales rep (later promoted to national sales manager) as a “f***king a**hole,” “pain in the ass,” and “piece of s***.” None of the sales rep’s claims were actionable, the court found: the statements were not defamatory (they clearly were opinion) and he couldn’t show negligence because the director’s allegedly tortious conduct wasn’t foreseeable by the employer. Although the rep alleged that the company had actual knowledge of the sales’ director’s incompetence as a supervisor, incompetence did not rise to the level of “criminal or tortious propensities,” concluded the Northern District of Ohio (Baum v Intertek Testing Services).
“Hot mama.” In the more familiar sexual harassment context, comments by a supervisor who called a new sales associate a “hot mama” during her first week at work, told her he was glad to have somebody to look at, commented on her clothes and how she walked, shared sexually tinged jokes, discussed his own marital unhappiness, and said “somebody’s going to think that we’re doing something nasty in here,” were neither severe nor pervasive enough to create employer liability. The Middle District of Georgia found the allegations about off-color jokes, awkward compliments, and inappropriate comments about her appearance and his marital problems were simply “ordinary tribulations of the workplace” that were not prohibited by Title VII. And a warning from her supervisor to keep quiet about a telephone call from his wife – calling her a whore and telling her to watch out – did not relate to sex or gender (Odom v Fred’s Stores of Tennessee).
Bipolar people are “highly deficient, flighty, dishonest and untrustworthy.” Because it was just a single incident in which an Ann Taylor store manager privately berated a sales lead for 45 minutes – she allegedly told the employee she was unqualified for her job because of her bipolar condition, which made her “highly deficient, flighty, dishonest, and untrustworthy” – this was not sufficient to establish a constructive discharge, even though the store manager gave the employee the choice of accepting a demotion or facing a 95 percent chance of being fired. She also purportedly told the employee she would have never hired her if she had known about her bipolar disorder (which she allegedly only learned about during the meeting).
Noting that employees are not guaranteed “a working environment free of stress,” the Eleventh Circuit found, in an unpublished opinion, that this wasn’t the kind of pervasive conduct necessary to establish a constructive discharge. It also cited the fact that the employee herself waited a few days before resigning as evidence that a reasonable person would not have felt compelled to resign under the circumstances, perhaps overlooking the evidence that the employee did, in fact, resign (Menzie v Ann Taylor Retail, Inc.).
“Your big fat ass needs to concentrate on losing weight.” Here, the timing and context of a supervisor’s comment that an employee’s “big fat ass needs to concentrate on losing weight” meant that the supervisor’s comment did not show discrimination or retaliation. Rather, the employee was terminated for seeking overtime pay for hours she did not work. The specific “big fat ass” remark allegedly was made three months before the overtime investigation and five months before the employee’s termination; this timing did not suggest a causal link. While the evidence might show some animus towards overweight individuals, the Northern District of Illinois noted, it did not show that the animus played any role in the employee’s termination. The court said accordingly that it did not need to decide whether the employee had presented enough evidence to show that her obesity was a disabling impairment (Luster-Malone v Cook County).
Comments alone are enough
“Constant lewd comments.” Sometimes comments alone are enough to lead to liability, however, though it may depend on where you work. A tax manager for Deloitte for many years alleged that her supervisor had “constantly” made lewd sexual jokes, remarks, and gestures, though he never physically grabbed her or propositioned her for sex. She eventually filed a sexual harassment grievance; she testified she “felt intimidated, humiliated, and embarrassed,” but the only evidence of an effect on her was that the jokes bothered her and “made her blush.” The federal district court in Puerto Rico would not automatically dismiss her hostile work environment claim simply because she could get work done despite her supervisor’s actions. The frequent lewd sexual jokes and gestures “easily” qualified as egregious in the professional environment. Further, although the behavior did not appear to include physical grabbing or sexual propositions, there was a “flu shot incident” at work where her supervisor supposedly directed the nurse to give the shot in her buttocks; then he imitated physical sexual conduct. Though not physically threatening, it “easily” rose to a physically humiliating level. (Miranda v Deloitte LLP).
“Chemo brain.” A supervisor’s comments to a 62-year-old employee who had just returned from leave to receive treatment for breast cancer, calling her “chemo brain,” badgering her about retirement, telling her he was going to make her the “fall guy” for a bad audit report, and eventually suspending and firing her after she complained of discrimination at a board meeting, factored into the defeat of her employer’s motion for summary judgment on discrimination and retaliation claims under the ADA, ADEA, and state law, the federal district court in Connecticut found (Hopkins v New England Health Care Employees Welfare Fund).
Using n-word “out of love.” Also, attempting to explain away inappropriate comments made by company execs isn’t necessarily a good idea. In this case, the employee had strong evidence that the company president berated her and said she and another woman “acted like ni**ers all the time.” He also repeatedly described the employee using the n-word. When she objected, he told her he was not using the term in a “derogatory” manner because “sometimes it’s good to know when to act like a ni**er.” He testified at trial that he used the term “out of love” to motivate her to improve. He also acknowledged that he “may have” told the employee that “black women get in the way of themselves” and that he had a “tendency” as a “Puerto Rican male” to feel that the man “rules in his house,” that a man’s “word is law,” and women “are too emotional.” As an affirmative defense, the defendants tried to characterize the president’s behavior as nothing more than petty slights or trivial inconveniences. Disagreeing, the Southern District of New York noted that “even a single comment may be actionable in the proper context.” It could conceive of no circumstances when calling a subordinate that name would be acceptable (Johnson v STRIVE East Harlem Employment Group).
Comments “plus” create liability
“Retard” plus a kick in the pants. Although foul language alone doesn’t often tip the scales in favor of employer liability, sometimes all it takes is a little shove to push it over the line. Take, for example, a case where an employee with Asperger’s syndrome and OCD had evidence that his store manager called him names like retard — and kicked him in the butt, and deliberately “contaminated” a game the germ-phobic employee intended to purchase. This was enough to get to a jury on his disability-based hostile work environment claim. The store manager explained that he kicked the employee to get his attention — not to physically harm him. This didn’t help the employer’s defense all that much. The employee was not harmed physically, but he testified that he was embarrassed because the incident took place in front of customers. This kind of behavior was not merely rude or offensive, the federal district court in New Jersey found, but appeared to be deliberately intended to harass the employee because of his disability. Indeed, the evidence painted “a picture of widespread insensitivity towards his disability by managers” since the inception of his employment (Witkowski v GameStop, Inc.)
“Gay porn star,” “faggot,” “queer” – and more. In a case under state law, substantial evidence supported a jury’s finding that an oil rig floor hand was called “queer” and “faggot,” and subjected to other harassment “because of” his sex or perceived sexual orientation. The heterosexual employee was called “queer,” “fagot,” “homo,” and “gay porn star” several times a day by one of his two supervisors. His supervisor posted a picture of the employee on the restroom wall: it “had a big target” around his mouth and stated “Give me the money shot.” His second supervisor also sexually harassed the employee, at one point urinating on him as he was standing below the supervisor’s elevated floor. Appealing the jury verdict in the employee’s favor, the employer argued there was not enough evidence to establish the employee was harassed “because of” his sex and/or perceived sexual orientation. Hardly, said the California state appeals court, suggesting that “any reasonable heterosexual male” would have recognized that his coworkers attacked his heterosexual identity through their comments: “sex was used as a weapon to create a hostile work environment” (Taylor v Nabors Drilling USA, LP).
“I know you like it rough” – and choking her to prove it. Evidence that for over six years an employee for a candy company was subjected to a barrage of sexually charged comments, propositions, innuendos, and gestures by the supervisor and two male coworkers that affected her detrimentally, including being choked by a male supervisor until she urinated in her pants, was enough to get to a jury on her hostile work environment claims. The employee described her work environment, which she had “absolutely loved” for ten years, as becoming a “living hell” because of the sexualized behavior of her male supervisor and two of his male subordinates.
Her supervisor told her “I’ll have you cum before you get your pants off” when he propositioned her to meet him after work. He choked her one day, telling her “I know you like it rough,” which caused her to urinate in her pants. She complained repeatedly, including filing complaints with her supervisors and the company’s CEO, as well as verbal complaints to the HR manager but no action was taken. After she complained to the CEO, she was called into her supervisor’s office, where another supervisor screamed that she was “f**king nuts” and that must be “having hot flashes.” In addition to getting sick every morning before work and being treated for anxiety and depression, the employee became suicidal before she finally resigned – and sued (Standen v Gertrude Hawk Chocolates, Inc).
Teach managers acceptable workplace language
Managerial comments like these illustrate just how porous the boundary can be between acceptable and unacceptable workplace language. Plus, some of the more egregious comments are simply breathtaking; the fact supervisors made them strongly suggests that employers are not doing a very good job of defining acceptable language in the workplace. Consider the following issues to communicate with your management team:
- What is your corporate culture: Where do you as an organization want to draw the acceptable language line? One way to get senior execs involved is to ask them to consider how such comments would reflect on their brand if they were attributed to company management via social media.
- In training managers, deal directly with how you expect managers to express themselves to employees. If name-calling, cursing, and sexual comments are not acceptable management communication styles, say so.
- Remind managers that it also matters who else is present when comments are made. Were the comments made just to the employee? In front of coworkers? In front of customers? Again, be specific in your communication guidelines.
Expert provides detailed discussion of documents necessary for compliance with OFCCP’s revised disability & veterans regulations
February 20th, 2014 | Cynthia L. Hackerott | 1 Comment
The process of compliance with the new requirements of the OFCCP’s revised regulations on protected veterans and workers with disabilities is “going to be a fairly easy transition for a good chunk of the [contractor] universe,” said OFCCP expert John C. Fox during the second part of a two-part webinar presented by the National Employment Law Institute (NELI). However, the transition will be “tough” for about 5 to 10 percent of that universe, he added. Both segments of the webinar were focused on providing a transactional approach to compliance.
The revised regulations were published in the Federal Register on September 24, 2013 (78 FR 58614–58679 and 78 FR 58682-58752). The VEVRAA rule revises the OFCCP’s regulations at 41 CFR Part 60-300 (and rescinds the outdated regulations at 41 CFR Part 60-250); the Section 503 rule revises the agency’s regulations in 41 CFR Part 60-741. The rules will require federal contractors to establish a 7 percent utilization goal for workers with disabilities (per job group) and a variable hiring benchmark for protected veterans (per establishment) as well as impose new data collection and recordkeeping requirements.
Although federal contractors and subcontractors will be required to comply with Subparts A, B, D, and E of both new rules by March 24, 2014, the obligations in Subpart C of the new rules will be phased in. Contractors with existing affirmative action programs (AAPs) on the effective date may wait to comply with the new requirements of Subpart C of both rules as part of their standard AAP review and updating cycle. In other words, contractors with AAPs in operation (mid-cycle) on March 24 do not have to create a new AAP on that date to comply with the new requirements, but rather can continue under the current rules until the conclusion of the annual AAP cycle. Nevertheless, contractors must still comply with all existing obligations under the current regulations while they are waiting for their new annual AAP cycle (and thus, the new requirements) to begin.
As previously reported in Employment Law Daily, in the first part of the webinar (Segment A), Fox reviewed the architecture of the new rules, effective dates and compliance deadlines, including whether starting early is advisable. He also discussed to what extent contractors may legally start compliance early, transitional AAPs, confidentiality requirements, and budget and staffing concerns.
External notices. Fox listed the following five external notices that contractors will need:
(1) Notification to labor organizations of the contractor’s obligations under VEVRAA and Section 503 (41 CFR §60-300.5(a)(10) and 41 CFR §60-741.5(a)(5));
(2) Notification to subcontractors and vendors of company policy related to the contractors affirmative action efforts (41 CFR §60-300.44(f)(1)(ii) and 41 CFR §60-741.44(f)(1)(ii));
(3) “Listing” (not “posting”) requirement with the appropriate employment service delivery system (ESDS) (41 CFR §60-300.5(a));
(4) VEVRAA pre-offer self-identification form (41 CFR §60-300.42); and
(5) Section 503 self-identification form for pre-offer stage (41 CFR §60-741.42).
The VEVRAA and Section 503 self-identification forms (items (4) and (5) above) were discussed in detail in Segment A of the webinar.
Because the notification to labor organizations (item (1) above) is a Subpart A requirement, compliance will be required whenever the contractor signs it first collective bargaining agreement (CBA) following March 24, 2014, he pointed out. Although the regulations are a “bit fuzzy” on this point, Fox thinks that contractors only have to send these notifications once. Thus, an employer that is presently a covered contractor, and has already sent these notifications, doesn’t have to do anything unless and until they sign a new CBA because this is not a new requirement.
The notification to subcontractors and vendors of the company policy related to the contractor’s affirmative action efforts (item (2) above) is a new requirement, Fox observed. For this notification, contractors may attach a copy of relevant AAP or include an appropriate description. The AAP is public anyway because the regulations require it to be disclosed to employees and applicants upon request, he said. This requirement is distinct from (i.e. not to be confused with) the requirement (contained at 41 CFR §60-300.5(d) and 41 CFR §60-741.5(d)) to incorporate specified EEO clauses into covered subcontracts, he pointed out.
The job listing obligation (item (3) above) is a requirement of the VEVRAA regulations that is not included the Section 503 regulations. VEVRAA, as amended by the Jobs for Veterans Act, requires covered contractors to list all employment openings — for jobs lasting longer than three days and not involving an executive or senior management position — with “the appropriate” ESDS as specified in the regulations.
It is important to note that regulations require contractors to “list” the jobs, rather than “post” the jobs, Fox advised, adding that it is the ESDS that “posts” the jobs, not the contractor. The revised regulations clarify that when listing their job openings, contractors must provide that information in a manner and format permitted by the appropriate state or local ESDS, so that the service can access and use the information to make the job listings available to job seekers. Most contractors use a third party “listing service” vendor to meet this requirement, he observed, adding that most contractors will continue to do so under the new rules.
A new obligation in the revised regulations requires contractors to send pieces of background info to the ESDS upon the first job listing: (1) the company is a federal contractor subject to VEVRAA; (2) the contractor desires priority referrals of protected veterans; (3) the name and location of each hiring location in the state; and (4) the contact information for the hiring officer at each location, including the identity of any third party search companies. When one or more of these four background pieces of information changes, the contractor must notify the ESDS.
Internal notices. Fox discussed the following five internal notices that contractors will need:
(1) Posting of rights for protected veterans and individuals with disabilities (IWDs) (41 CFR §60-300.5(a), para 9 and 41 C.F.R. §60-741.5(a), para 4);
(2) Notice of availability of AAPs to applicants and employees (41 CFR §60-300.41 and 41 CFR §60-741.41);
(3) VEVRAA post-offer self-identification form (41 CFR §60-300.42);
(4) Section 503 self-identification form for post-offer and post-employment invitations (41 CFR §60-741.42); and
(5) AAP policy statement (41 CFR §60-300.44(a) and 41 CFR §60-741.44(a)).
As stated previously, the VEVRAA and Section 503 self-identification forms (items (3) and (4) above) were discussed in detail in Segment A of the webinar.
Both new rules will require contractors to post notices stating “the rights of applicants and employees, as well as the contractor’s obligation under the law to take affirmative action to employ and advance in employment qualified employees and applicants” (item (1) above). The regulations will require these notices to be in a form prescribed by the OFCCP, “provided by or through the contracting officer,” but this form(s) has not yet been made available to the public, Fox noted.
Contractors may provide these notices electronically for employees with telework arrangements or for those who do not work at the contractor’s physical location if: (a) the contractor provides computers to these employees to access the posting, or (b) the contractor has “actual knowledge” that these employees may otherwise be able to access the electronic notice. Those contractors with employees who work “off the grid” — meaning that their work environment is so remote that they don’t have access to computers — will need to find a workaround to meet this requirement, Fox said.
Also, if a contractor uses electronic or internet-based application processes, an electronic notice of employee rights and contractor obligations must be “conspicuously stored with, or as part of, the electronic application,” the regulations state.
Providing notice of the availability of AAPs for inspection by applicants and employees (item (2) above) is not a new requirement, Fox noted. However, contractors do not have to include the data metrics that will be required by the new regulations at part .44(k) when providing access to the AAPs. If the requestor is able to access the electronic version of the AAP, then the contractor may provide it electronically.
The equal opportunity policy statement (item (5) above) must be included in the contractor’s AAP and must also be posted on company bulletin boards. There is a First Amendment issue lurking in the requirement that the policy statement “shall indicate” support of the AAP by the contractor’s “top United States executive,” Fox pointed out, explaining that this is a government requirement compelling the executive to express a certain viewpoint.
Advertising tag lines. The regulations (at 41 CFR §60-300.5(a) para 12 and 41 CFR §60-741.5(a) para 7) require contractors to state in all solicitations or advertisements for employees that all qualified applicants will receive consideration for employment and will not be discriminated against on the basis of protected veteran status or disability. There is a big debate as to whether employers should use acronyms, and if so which ones, in print media ads because print media still charges for ads by the keystroke, Fox said. In contrast, there is not a similar concern for electronic media ads because the rates for those ads are not based on cost per keystroke. In the end, the advertising lawyers in big newspapers will decide this issue by determining what they will accept and publish, Fox predicted.
The OFCCP’s February 20, 2014 webinar will discuss this issue, he noted. Since the regulations are silent on this point, however, the OFCCP doesn’t have the authority to dictate acronym usage, according to Fox. Nevertheless, the agency will be in a powerful position of leverage in audits since it won’t be worth the cost to litigate this issue, he said. The OFCCP’s Frequently Asked Questions for the new rules already clarify that the terms “veteran” and “disability” may not be abbreviated to simply using “V” and “D”; in agency’s view. “Vet” and “disabled” are the preferred terms.
Evaluations/surveys. Fox listed the following evaluations and surveys required by the revised regulations:
(1) Review of personnel processes (41 CFR§60-300.44(b) and 41 CFR §60-741.44(b));
(2) Self-assessment of outreach and recruitment (41 CFR §60-300.44(f)(3) and 41 CFR §60-741.44(f)(3)); and
(3) Data collection analysis (41 CFR §60-300.44(k) and 41 CFR §60-741.44(k)) .
A requirement carried over from the current regulations is for contractors to review their personnel processes “periodically” and “make any necessary modifications” to ensure that their obligations under the regulations are carried out (item (1) above). Since the regulations do not specify what the length of the review “period” should be, contractors need to determine this period on their own, Fox said. Appendix C of the VEVRAA rule contains a set of procedures which contractors may use to meet this requirement.
The current regulations require contractors to engage in outreach and recruitment of IWDs and protected veterans. Under the revised outreach and recruitment provisions, contractors will have the additional obligation to document their outreach and recruitment efforts and undergo an annual written assessment of their effectiveness (item (2) above). This obligation will require a contractor to evaluate whether the totality of its efforts is “effective” in identifying and recruiting qualified protected veterans and individuals with disabilities. In doing so, contractors must identify the criteria they have used to determine effectiveness and these criteria must at least include the .44(k) data metrics for the current year and for the two most recent years. It will take at least three years following the effective date of the regulations for the data pipeline as to this obligation to be completely filled, Fox noted.
This assessment is of the totality of the contractors efforts, not each single effort on its own, he stressed. This requirement is illustrative of OFCCP Director Patricia Shiu’s “primary and most emphatic point,” of these regulations, he said, which is that Shiu wants contractors to take a “nuanced and thoughtful approach” to the employment of veterans and the disabled, rather than merely following a series of checklists. Segment A of the webinar included some additional discussion of this requirement.
The annual data collection analysis (item (3) above) obligation will require the calculation of the data collections required by part. 44(k) of the new rules:
• number of IWD and protected veteran applicants;
• total number of applicants for all jobs;
• total number of job openings and jobs filled;
• number of IWDs and protected veterans hired; and
• total number of applicants hired.
This analysis does not have to be included in the AAP; Fox suggested finding a location for this analysis on a computer or human resources information system. Different forms will be required for the VEVRAA rule analysis and the Section 503 analysis because the 7 percent utilization goal for workers with disabilities will be assessed by job group and the variable hiring benchmark for protected veterans will be assessed by establishment.
EEO clauses. Under the revised regulations (at 41 CFR §60-300.5(d) and 41 CFR §60-741.5(d)), contractors may incorporate the required Section 503/VEVRAA equal opportunity clauses into covered subcontracts by reference to the regulations, only if they use the language specified in both regulations at part .5 (d). The specified language must be included in bold font.
Contractor may add their own language before and after the specified language, Fox advised, so long as they do not alter the OFCCP’s prescribed language.
A contractor may add a prelude sentence to the prescribed EEO clauses (whether recited in full or incorporated by reference) to note that the clauses attach to the contractor’s contract with its subcontractors “where applicable.” Although contractors might consider having two forms of subcontract language, one for those subcontractors who are not covered or which are not federal subcontractors and another for covered federal subcontractors, Fox advised against that approach because it would require parsing contract-by-contract to determine subcontractor coverage. Instead, he recommended that contractors use the “where applicable” language to encompass all covered subcontractors. Segment A of the webinar included some additional discussion of these EEO clauses.
Outsourcing. Generally, contractors could outsource 100 percent of the obligations under the new rules, Fox said, but he added that there is not really a lot of additional work to outsource to vendors once the contractor has managed the first year-transitions. He cautioned, though, that outsourcing does not relieve a contractor of any compliance failures. From a practical standpoint, contractors should determine whether vendors can effectively do the work, especially if the work requires intimate and detailed knowledge of the contractors employment practices, policies, culture, and HR systems/reports.
Moreover, in audits, the OFCCP is simply no longer going to accept checklists and form letters, but rather is now insisting on a nuanced or individualized approach. In particular, Fox stated that he does not think that outsourcing the outreach and recruitment requirements will pass muster in an OFCCP audit.
The webinar, presented on January 30, 2014, was the second segment (Segment B) of a two part program, entitled, “What You Need to do to Implement OFCCP’s Final Section 503/VEVRAA regulations: A Transactional Approach.” Segment A of the webinar was presented on January 23, 2014. Fox, a former OFCCP official and current president of Fox, Wang & Morgan P.C. in San Jose, California, provided sample forms and language for all of the notices and forms discussed in the webinar. The power points slides containing these samples, as well as re-broadcasts of both segments of the webinar, may be ordered by going to NELI’s website at www.neli.org.
Did drawing the line in associational retaliation cases just get a little bit harder?
February 18th, 2014 | Kathy Kapusta | Add a Comment
When the U.S. Supreme Court, in Thompson v N. Am. Stainless, LP, upheld a third-party retaliation claim filed by an employee who was fired three weeks after his fiancée filed a formal complaint of harassment against their employer, it found it “obvious” that a “reasonable worker might be dissuaded from engaging in protected activity” if she knew that her fiancé would be fired. The Court acknowledged, however, potential line-drawing difficulties in less clear cases.
Somewhere between close friend and casual acquaintance. A recent decision from the federal district court in New Hampshire may have just made that line even more difficult to draw. In that case, the EEOC successfully advanced a retaliation claim on behalf of an employee who was allegedly fired after her “very close friend” and former coworker threatened to file a sexual harassment claim against their employer. Observing that the relationship between the two women “exists somewhere in the fact specific gray area between close friend and casual acquaintance,” the court found that the agency’s claim was sufficient to survive a motion for judgment on the pleadings.
Both women worked for an oil company. The coworker was allegedly sexually harassed by the owner who frequently commented on her breasts, told her he wanted to play with them, liked to watch her laugh so he could watch them bounce up and down, and offered to show her his “night crawler.” At some point, his comments progressed to inappropriate touching and culminated in an incident in which he trapped her behind her desk and fondled her. She resigned the next day.
EEOC steps in. The coworker subsequently informed the company, through her attorney, that she was planning to file a discrimination charge against it. Less than a month later, the employee was fired, purportedly because “it was not working out.” The EEOC then sued the company on behalf of the two women, alleging that the owner sexually harassed them and fired the employee in retaliation for her coworker’s complaint about the harassment.
Unsettled jurisprudence. The company argued that the EEOC sought to extend an unsettled jurisprudence beyond reason. Specifically, the employee did not claim to have engaged in protected activity; rather she contended that she was fired in retaliation for her friend’s protected conduct.
Is close friendship enough? The employer further argued that based on Thompson, the two women were not close family members and were not sufficiently close such that termination, or threatened termination, would have dissuaded a reasonable worker from making or supporting a charge of discrimination. The court, however, rejected this as premature. Here, the complaint alleged that the two women were close friends. Not only did they work together at a prior company, the coworker was influential in procuring the employee’s job with the oil company. Moreover, the employee displayed birthday and mother’s day cards from the coworker on her desk alongside pictures of the coworker’s young daughter and the two women together.
The complaint also alleged that the owner knew of this close friendship as was demonstrated by his comment to the employee proposing a “play date” between himself, the employee, the coworker, and the coworker’s daughter. In addition, when he wanted to contact the coworker after she quit, he asked the employee for her personal email address. While the court could not say that such a friendship definitely supported a successful claim, it also could not say as a matter of law that it did not. As a result, it denied the employer’s motion for judgment on the pleadings.
Cautionary note. The court cautioned, however, that it might revisit the issue upon a proper motion after discovery. In light of the fact that the employer in Thompson warned that expanding third-party reprisal suits would place an employer at risk any time it fires any employee who happens to have a connection with a coworker who files an EEOC charge, it may be worth keeping an eye on any future developments in this case.
Secretary Perez says Labor Department “contemplat[ing]” possible LGBT executive order; WH says it’s still “hypothetical”
February 14th, 2014 | Cynthia L. Hackerott | Add a Comment
A possible executive order (E.O.) banning discrimination against LGBT employees by federal contractors is “an issue that [the Labor Department] continue[s] to contemplate and work on,” said Secretary of Labor Thomas E. Perez at a White House press briefing on February 12, 2014. However, Perez declined to comment on whether the Labor Department would be responsible for implementing such an order. Perez joined White House Press Secretary Jay Carney at the briefing to discuss President Obama’s signing later that day of an executive order to raise the minimum wage for federal contractors to $10.10 an hour.
Currently, no federal law protects against discrimination in the workplace on the basis of sexual orientation or gender identity. In 2012, LGBT news publications began to report that the Obama Administration was considering expanding E.O. 11246 – which prohibits federal contractors from discriminating on the basis of race, color, sex, religion, and national origin – to include sexual orientation and gender identity. According to these reports, the President has also considered, as an alternative to expanding E.O. 11246, issuing a separate, new executive order to address sexual orientation and gender identity. However, White House Press Secretary Jay Carney has maintained since April 2012 (when the Obama Administration publicly addressed the issue for the first time) that no such order is forthcoming and has continued to reiterate his earlier statements that the President prefers legislative, rather than executive, action on this front. Carney’s comments during the February 12, 2014 briefing did not stray from his previous course, indicating that an LGBT Executive Order is still “hypothetical” at this point.
On November 7, 2013, the Employment Non-Discrimination Act of 2013 (ENDA) — a bill that would bar employment discrimination based on actual or perceived sexual orientation or gender identity — cleared the Senate with a bipartisan 64-32 vote. Yet, soon after, House Speaker John Boehner indicated that he would not bring the bill up for a vote in the Republican-controlled House of Representatives.
During the February 12, 2014 briefing, a Washington Blade reporter asked:
“Speaking of executive orders, there’s been a lot of discussion recently about a potential executive order that would bar federal contractors from discriminating on the basis of sexual orientation and gender identity. If the President were to sign such an executive order, could the Labor Department implement it?”
To which Secretary Perez responded:
“Well, I can’t get into what-ifs. I’m certainly aware of the executive order that was proposed that you’re talking about. And the President takes a backseat to no one in his commitment for equal access to opportunity for people regardless of race, religion, sexual orientation or gender identity. And it’s an issue that we continue to contemplate and work on.”
The OFCCP, an agency within the Labor Department, enforces E.O. 11246, as well as Section 503 of the Rehabilitation Act of 1973 (Section 503) and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA). In addition to its non-discrimination provisions, E.O. 11246 requires covered federal contractors to implement affirmative action programs on the basis of race, color, religion, sex, and national origin. Section 503 and VEVRRA require similar affirmative action programs with respect to disability and status as a protected veteran. It is not clear whether any potential expansion of E.O. 11246 would only require non-discrimination or whether it would also require implementation of affirmative action programs on the basis of sexual orientation and gender identity.
In 2012, the EEOC issued its much publicized decision in Macy v Holder. There, the EEOC — following earlier court precedents which held that Title VII’s prohibition against discrimination based on “sex” extends to claims for sex stereotyping, as well any other claim asserting that gender was taken into account — ruled that transgender workers are protected under Title VII. Thus, the EEOC adopted the position that the sex stereotyping theory encompasses claims of discrimination based on transgender status.
At the February 12, 2014 briefing, the Washington Blade reporter followed up his initial question by asking:
“On a related note, there’s also been talk about implementing existing order — Executive Order 11246, which prohibits discrimination on the basis of gender, and apply that to transgender workers to prohibit discrimination against them in the wake of Macy v. Holder. Will the Labor Department take that step?”
Perez responded: “That issue is under review in the aftermath of the Macy decision. And I’ve asked my staff to expedite that review so that we can bring that issue to conclusion at the Department of Labor.”
When the reporter inquired as to when the review would come to an end, Perez replied “I’m hoping it will come to an end as soon as possible.”
Later in the briefing, a Reuters correspondent asked Carney whether “the administration is contemplating executive action on LGBT workplace non-discrimination.” To which Carney, yet again, indicated that no such order is forthcoming and continued to reiterate his earlier statements that President Obama prefers legislative, rather than executive, action on this issue.
“What our position is and has been is that we strongly support the Employment Non-Discrimination Act,” Carney said. “We note the progress made in the Senate, the fact that there’s been movement in the Senate on this, and I think against some of the conventional wisdom we’ve seen movement on this.”
“[W]e’re going to keep pressing Congress to catch up with the country on these issues,” he added. “But I just don’t have any update on the discussion around other hypothetical EOs, and I think that’s what Secretary Perez was indicating.”
Union leaders shout displeasure over Affordable Care Act
February 13th, 2014 | David Stephanides | Add a Comment
In a story that has somewhat fallen off the radar, union leaders have once again made it known that they are not pleased with the Affordable Care’s Act treatment of multi-employer health plans. The reality, they stress, is that if federal subsidies are available only for plans purchased through state exchanges, employers contributing to multiemployer plans will face tremendous economic pressure to stop contributing to these plans. Many employers will feel the need to drop coverage and access the subsidies to remain competitive.
Updating the contentious issue, the Washington Post reported Jan. 31 that Obama Administration officials said “if the unions got their way, people enrolled in their plans would be indirectly getting two tax benefits while most Americans get only one.”
“The unions here are asking to double dip,” said Robert Laszewski, a health policy consultant in Washington quoted in the Post article. “It is an unfair request. The Obama plan is very simple: If your employer pays for your health plan, you are not eligible for a government subsidy. What the unions are asking for is government and employers to fund their benefits.”
While union officials acknowledge that their plans are unique, they stress that the ACA didn’t take that into account. As a result, commercial insurers can cover anyone through the individual or group markets, while the multi-employer plans can’t. This creates unstoppable incentives for employers to reduce weekly hours for workers currently on these plans and push them onto the exchanges where many will pay higher costs for poorer insurance with a more limited network of providers.
“We thought that if we made the case to the agencies dealing with regulations to correct problems that hurt [our plans], really destroy, self-funded nonprofit health plans, it would be resolved,” said Donald Taylor, President of Unite Here, in the Post article. “That clearly was naive or stupid.”
