A Native American woman, who was discharged from her employment after testing positive for marijuana use following a random drug test, could not maintain a claim for discrimination based on race, ruled a federal district court in Arizona. In Yazzie v. County of Mohave, the court determined that even if the employee could establish a prima facie case of discrimination, the employer set forth a legitimate, nondiscriminatory reason for terminating her. The employee was employed in a safety sensitive position operating heavy equipment. If she was impaired by drugs or alcohol while on duty, the likelihood of harm to herself and the general public would be substantially increased. Because the employee admitted to illegally consuming marijuana and tested positive for marijuana while on duty, the employer’s decision to terminate her fell entirely within its policies.
Drug testing policy. The employee worked for the county’s public works department for over 17 years. As a heavy equipment operator, she was required to maintain a commercial driver’s license (CDL). Additionally, employees who operated commercial vehicles, including heavy equipment, were regarded as being in safety sensitive positions. The employer maintained rules governing discipline for employees who tested positive for drugs or alcohol while on duty. Employees were subject to random drug tests. The employee knew that the work rules prohibited the consumption of marijuana, signed acknowledgements that she received a copy of county policies, and attended training sessions addressing the prohibited consumption of illegal drugs.
Nevertheless, after being selected for a random drug test, the employee tested positive for marijuana use. Initially, she asserted that the result was a false positive because she had consumed a prescription drug. Ultimately, she acknowledged that the positive result stemmed from her recent marijuana use. She was placed on administrative leave and ultimately terminated. Thereafter, she filed this lawsuit. In response, the employer filed a motion for summary judgment.
Discrimination claim. The employee alleged that the employer discriminated against her based on race and/or ancestry in violation of Title VII, Section 1981, and Section 1983. Specifically, she claimed that other non-Native American employees received more frequent promotions and pay raises. She also asserted that “the County did not terminate other similarly situated non-Native American employees who violated the County’s Drug and Alcohol Policies.”
Here, the court concluded that the employee failed to present any direct or circumstantial evidence indicating that the employer was more likely than not motivated by discriminatory intent. Applying the burden-shifting McDonnell Douglas framework, the employer did not dispute that the employee was a member of a protected class, was qualified for the employment position, and experienced an adverse employment action. However, it did argue that she failed to show non-Native American employees were treated more favorably than her. Alternatively, the employer contended that the employee did not demonstrate that its legitimate, nondiscriminatory reason for terminating her—testing positive for marijuana while on duty—was pretextual.
Failure-to-promote claim. As an initial matter, the court found that the employee’s claims that she was discriminated against for promotions between 1995 and 2002 were time barred as she did not file this lawsuit until 2014. With respect to the remaining claims, the court found nothing in the record to support her failure-to-promote claim. Similarly, nothing in the record established that non-Native Americans were promoted faster or more frequently than the employee.
As to her termination claim, no admissible evidence supported her assertion that similarly situated, non-Native American employees tested positive for drugs or alcohol while on duty but were not terminated. The undisputed facts demonstrated that all 10 employees who failed drug or alcohol tests since January 2010 were terminated or resigned in lieu of termination. Because the employee failed to set forth a prima facie case of discrimination, summary judgment was granted in the employer’s favor on her Title VII and Section 1981 claims.
The Obama Administration has filed a petition asking the Supreme Court to grant rehearing of a case that would have put the president’s immigration reform policy to the test had there been a full panel of nine Justices. In U.S. v. Texas, the administration turned to the High Court after the Fifth Circuit upheld a district court injunction that stands in the way of an executive enforcement guidance to implement the Department of Homeland Security’s Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program.
However, lacking a ninth Justice who might have spurred a different outcome, the ruling was a 4-4 tie that left the Fifth Circuit decision and the nationwide injunction intact.
In the wake of the unexpected death of Justice Scalia, President Obama nominated Merrick Garland to fill the vacancy on March 16, but Republican senators have said they will not permit a vote on the nomination until after the November election. It has now been 125 days since Garland’s nomination; reportedly, every other Supreme Court nomination in history has received a vote in the Senate within that time. The immigration ruling underscores some of the fallout from the deadlock.
Immigration reforms. The challenged guidance was directed to the DAPA program, which would have allowed DHS to halt deportation proceedings and issue work permits and other benefits to a specific class of undocumented immigrants. The program sought to implement immigration reform measures proposed by Obama in November 2014 after immigration reform had stalled in Congress. The preliminary injunction also blocked a proposed expansion of a similar program, Deferred Action for Childhood Arrivals (DACA), initially implemented in 2012.
In the Supreme Court, the federal government argued that the states that challenged the guidance were not objects of the policy; therefore, the Fifth Circuit’s ruling on the injunction barring implementation of the guidance was contrary to Article III of the U.S. Constitution. Moreover, by refusing to remove the injunction, the appeals court also got it wrong as to the often-asserted discretion in providing deferred action for certain aliens already living in the United States, according to the government.
Reasons for rehearing. The petition for rehearing acknowledges that “it is exceedingly rare for [the] Court to grant rehearing.” However, the government asserts that when the Court “has conducted plenary review and then affirmed by vote of an equally divided court because of a vacancy rather than a disqualification, the Court has not infrequently granted rehearing before a full Bench.” The petition cites examples of instances in which there was an equally divided court and a rehearing was granted because it appeared that a majority on one side or the other might be mustered. The petition asserts that, “In such situations, the Court has not infrequently held the case over the Court’s summer recess, holding oral arguments months later.”
The government also argues that this case is different than Friedrichs v. California Teachers Ass’n and Hawkins v. Community Bank of Raymore, both of which were 4-4 rulings that resulted this term due to the vacancy on the Court. While the issues presented in those cases may “freely recur” in other cases, the guidance at issue here is “unlikely to arise in any future case,” the petition states. The government also points out that the preliminary injunction in this case bars implementation of the guidance anywhere nationwide, that there is no reason to expect that the district court will issue a permanent injunction that is any narrower, and that there is no other pending case challenging the immigration guidance.
Definitive ruling needed. The petition also presses for a definitive ruling. “Unless the Court resolves this case in a precedential manner, a matter of ‘great national importance’ involving an ‘unprecedented and momentous’ injunction barring implementation of the Guidance will have been effectively resolved for the country as a whole by a court of appeals that has divided twice, with two judges voting for petitioners and two for respondent States,” the petition urges. “As this Court recognized in granting certiorari, this Court instead should be the final arbiter of these matters through a definitive ruling.”
The National Immigration Law Center quickly issued a statement supporting the administration’s bid for rehearing: “The Supreme Court failed millions of immigrant families, and our country as a whole, when it deadlocked in U.S. v. Texas. Now, the justices have an opportunity to right this wrong and fulfill their duty to the American people.
“U.S. v. Texas is without a doubt one of the most consequential immigration cases in recent history. It is appropriate and, in fact, necessary for the Court to rehear the case with a full bench and deliver a decisive ruling. We commend the Justice Department for taking a necessary first step toward ensuring that those whose lives are hanging in the balance get a fair day in court. We hope the Supreme Court will recognize that the millions of families living in limbo—and our country as a whole—deserve better than a non-decision. We beseech the justices to grant a rehearing.”
A few legislative and case law developments from the past month suggest a shift in how lawmakers are approaching LGBTQ rights to equality in the workplace. The LGBTQ community also seems to be gaining protections under labor and employment laws, if not yet full equality:
Armed forces get gender identity protections. On June 30, Secretary of Defense Ash Carter announced that transgender individuals will be able to openly serve in the U.S. armed forces. The new policy, which will be phased in during a one-year period, also establishes a construct by which service members may transition gender while serving, sets standards for medical care, and outlines responsibilities for military services and commanders to develop and implement guidance, training, and specific policies. Effective immediately, service members may no longer be involuntarily separated, discharged, or denied reenlistment solely based on gender identity.
OFCCP final rule on sex discrimination has gender identity provisions. The OFCCP announced a final rule on new sex discrimination regulations that align with current law and address the realities of today’s workplaces. Topics addressed in the final rule—which updates the provisions at 41 CFR Part 60-20 for the first time in over four decades—include discrimination based on gender identity bias. The final rule is slated to take effect on August 15. A fact sheet and FAQs are available on the DOL website.
EEOC settles one of its first sexual orientation discrimination suits. Pallet Companies, doing business as IFCO Systems, has agreed to pay $202,200 and provide equitable relief to settle one of the EEOC’s first lawsuits alleging that discrimination based on sexual orientation is actually discrimination based on gender in violation of Title VII. A lesbian employee at IFCO’s Baltimore facility was repeatedly harassed by her supervisor because of her sexual orientation, according to the EEOC’s suit. The supervisor allegedly made numerous comments to the employee about her sexual orientation and appearance, such as “I want to turn you back into a woman” and “You would look good in a dress,” and made sexually suggestive gestures. IFCO allegedly retaliated against the female employee by firing her just days after she complained to management and called the employee hotline to report the harassment. The same day the EEOC filed the IFCO case it also filed an unrelated sexual orientation discrimination suit against Scott Medical Health Center in the Western District of Pennsylvania (No. 2:16-cv-00225-CB).
Recent court decisions. Though a federal court in Florida did not agree that sexual orientation discrimination is based on gender, it found viable a theory that sexual orientation discrimination is based on gender stereotypes. That theory, which has been endorsed by the Eleventh Circuit, led the court here to deny a motion to dismiss a Title VII discrimination claim by a female EMT who claimed she was harassed and constructively discharged due to her perceived sexual orientation (Winstead v. LaFayette County Board of County Commissioners, June 20, 2016, Walker, M.).
In another case, a federal court in New York refused to dismiss a failure-to-hire claim by a transgender extern who was denied the use of the women’s restroom and restricted from participating in an examination of a female patient by a supervisor who said that “only females are allowed beyond this point” and that “he-shes . . . and gays will need to answer to Jesus” (Carr v. North Shore – Long Island Jewish Health Systems, Inc., June 23, 2016, Seybert, J.).
Other recent developments. There are some changes at the state level. For example, Massachusetts Governor Charlie Baker on July 8 signed compromise legislation, “An Act relative to transgender anti-discrimination,” to extend protections against discrimination for gender identity to any place of public accommodation, with the Massachusetts Commission Against Discrimination adopting regulations to enforce its provisions. “No one should be discriminated against in Massachusetts because of their gender identity,” Governor Baker said. “This compromise legislation extends additional protections to the Commonwealth’s transgender community, and includes language to address the public safety concerns expressed by some by requiring the Attorney General to issue regulations to protect against people abusing the law.”
Also of note, the District of Columbia Office of Human Rights, in conjunction with the National LGBTQ Task Force, released a best practices guide for employers on transgender applicants and employees. The publication, Valuing Transgender Applicants & Employees: A Best Practice Guide for Employers, goes beyond legal obligations to help create an inclusive workplace.
A local police department was proud of its reputation for stopping alcohol- or drug-impaired drivers passing through its city, and it encouraged its officers to make a high volume of stops. A well-respected officer decided, on his own initiative, to be more aggressive with his traffic stops to get his numbers up (City of Chaska, Minnesota and Law Enforcement Labor Services, Inc., Local No. 210, St. Paul, Minnesota, Feb. 19, 2016, Richard Miller, Arbitrator).
To that end, his tactic of choice was the stationary patrol, which involved parking his car at a location and waiting for violators. In a stationary patrol, the officer, in addition to watching for violations such as texting while driving and failing to wear a seatbelt, might enter random license plate numbers into a database to determine if they have outstanding warrants or a valid driver’s license. As the site of his stationary patrol, the officer chose to park his patrol car outside of one of two mobile home parks. For several months, he ran the license plate numbers on every car that went into or out of the trailer parks, which produced a plethora of stops for violations such as driving without a license or with a suspended license.
Both trailer parks were predominantly Hispanic. The Hispanic community complained to city officials and to police officials of unfair treatment and racial profiling. As a result of these complaints, the police department ordered the officer to cease the practice, and it launched an investigation into whether the officer’s actions constituted racial profiling. After the investigation concluded that he did engage in racial profiling, the police department terminated him, and he filed a grievance.
The arbitrator concluded that the officer was not a racist. One of his two roommates, for example, was Hispanic. The crux of the inquiry, however, was not into whether he was a racist but rather into whether his actions gave the appearance of racial profiling, in violation of state law and police policies. The arbitrator concluded that the officer did, in fact, commit acts that gave the appearance of racial profiling. For 20 consecutive shifts in the summer of 2014, knowing that the trailer parks were predominantly Hispanic, the officer ran license plate numbers at one or the other trailer park. He used racial stereotypes to decide where to look because he assumed that trailer parks with large numbers of Hispanics would contain undocumented immigrants who could not have driver’s licenses. His actions had a disparate impact on Hispanics, who made up more than half of all stops the officer made during the period in question.
Also, officers who run a license plate and find something on the record are prohibited from proceeding against the driver if the driver is not the vehicle’s registered owner. For Hispanics only, the officer pursued drivers whom he knew were not the owners, for example, where the owner was a male and the driver was a female. For all of those reasons, the employer had just cause to terminate.
By Lisa Milam-Perez, J.D.
Deeming the DOL’s controversial “persuader” rule “defective to its core,” a federal district court in Texas enjoined the agency from implementing the provisions on a nationwide basis. In a lengthy opinion, the district court parted ways with a federal court in Minnesota which, less than a week earlier, had refused to stop the DOL from forging ahead with its “reinterpreted” advice exemption rule and its revised Forms LM-10 and LM-20 (documents that must be filed when an employer engages a labor relations consultant to undertake efforts to persuade employees regarding whether to vote for union representation). But the Texas court saw a clear threat of irreparable harm and a balancing of hardships in the plaintiffs’ favor—noting the employer free-speech implications, the threat to attorney-client confidentiality, and the employee privacy concerns—observing that, as a practical matter, once employers are compelled to disclose the information requested by the agency, there’s no taking it back (National Federation of Independent Business v. Perez, June 27, 2016, Cummings, S.).
“Not merely fuzzy.” Both courts, however, have concluded that in the end, the various plaintiffs bringing separate legal challenges to the DOL rulemaking will likely succeed on their claims that the rule is facially invalid. It conflicts with the Labor-Management Reporting and Disclosure Act (LMRDA), the rulemaking is arbitrary and capricious in violation of the Administrative Procedure Act, and the DOL exceeded its authority in promulgating it. It’s also unconstitutionally vague and thus violates due process (as well as employers’ First Amendment rights), according to the court in Texas. Finally, it runs afoul of the Regulatory Flexibility Act.
“DOL’s New Rule is not merely fuzzy around the edges,” the court wrote. “Rather the New Rule is defective to its core because it entirely eliminates the LMRDA’s Advice Exemption.”
Need for immediate counsel. To some extent, the Obama administration was hoisted on its own rulemaking petard here, as the shortened time frame and added employer obligations ushered in by the NLRB’s “quickie” election rule—which has thus far been impervious to legal challenge—convinced the court of the critical need by employers for immediate and unencumbered counsel, both legal and tactical, in the face of lightning-quick union elections.
“If a labor lawyer is going to tell an employer all he needs to know about what is coming at him, the lawyer cannot restrict their conversation to purely legal advice,” the court noted. “The typical employer-client is not capable of promptly and properly educating his employees as to the consequences of unionizing.” Inevitably, the attorney will assume a consultative role that will trigger the reporting requirements at issue here. And, while the ostensible purpose behind the rule is to ensure that employees know when outside attorneys have been hired to persuade them not to unionize, employees won’t even have access to this information before they place their votes anyhow. The “quickie” election rule has reduced the typical campaign to 21 days, but the LM-20 needn’t be filed until 30 days after an employer enters into a “persuader” agreement with outside counsel. The incongruity was not lost on the court.
Impact. According to the district court, the new rule would adversely impact employers large and small, as evidenced by testimony from numerous trade groups that told the court how its member employers would stand to suffer under the rule as promulgated. For one, they would be less likely to hire a lawyer for guidance in the face of an organizing campaign if they knew their retention agreements will be reported to the DOL on publicly available forms, the court heard. The American Bar Association also weighed in, citing the ethical dilemmas that the rule posed to practicing labor attorneys in providing legal counsel to their clients. (The state of Texas and nine other states intervened in this challenge, too, arguing that they have the right to regulate the practice of law in their states and to protect confidential attorney-client information.)
Moreover, attorneys told the court they would cease giving seminars on union avoidance strategies—and employers would stop going to them—lest they be compelled to divulge the names of attendees. Indeed, labor law practitioners testified they would stop representing employers in election campaigns altogether rather than adhere to the mandates of the new rule as well as the considerable costs of compliance. “Other law firms around the country have already started announcing their decisions to cease providing advice and representation that would trigger reporting under DOL’s New Rule,” the court observed.
Undoing the advice exemption. In light of these findings, the court found a substantial likelihood of success on the merits of plaintiffs’ challenge to the DOL rule, noting that the district court in Minnesota, in Labnet, Inc. v DOL, had concluded as much (despite its reluctance to pull the plug pending this eventual determination). The new advice exemption interpretation, in essence, eliminates the advice exemption. Quoting its sister court in Minnesota, the court here reiterated that, “‘[a]t the root of DOL’s problem is its insistence that persuader activity and advice are mutually exclusive categories.’” And, “‘[p]roceeding from that flawed premise, DOL categorizes conduct that clearly constitutes advice as reportable persuader activity.’”
The new rule erroneously insists that “advice” can never have “an object … to persuade” and that these objects are mutually exclusive. But that’s not what the LMRDA says. Both the Fifth Circuit and D.C. Circuit have acknowledged that the law allows for an overlap, and the DOL’s insistence to the contrary renders an entire statutory provision, LMRDA Section 203(b), “entirely superfluous.” Given the DOL’s flawed interpretation of the statute, and the grave harms likely to follow, the district court enjoined the agency from implementing the measure.
A big win. Jeffrey C. Londa, managing shareholder of Ogletree Deakins’ Houston office, was one of the attorneys representing the trade group plaintiffs on their successful challenge to the DOL rule. He told Employment Law Daily that the statutory LMRDA claims raised by the plaintiffs appear to have held the most sway with the district court. And while the Minnesota court also found the statutory challenges persuasive, the success in securing injunctive relief in this case also could be attributed in part to the parade of witnesses that testified in the Texas case. “We had eight witnesses testifying at the evidentiary hearing,” he said. “We gave the judge a lot more to consider here.”
Now what? “The DOL has the option to appeal or regroup. I would hope they’d pull the rule,” Londa said. “Two courts have already ruled against them.” Although we still don’t have a decision yet in the third court challenge (a lawsuit brought by the Associated Builders and Contractors filed in a federal court in Arkansas), it won’t matter, practically speaking, Londa pointed out, since the court granted the nationwide preliminary injunction here. Meanwhile, some practitioners are counseling clients to enter arrangements prior to July 1 (since the rule was to be effective July 1) in order to avoid the DOL reporting requirements. That will no longer matter if the preliminary injunction holds.
The attorneys representing the Minnesota challengers struck a triumphant tone as well. “Employers across America—both small and large—are celebrating today’s decision, because it stops the government’s illegal implementation of a bad rule, and protects employers’ right to seek counsel and get advice on sensitive and complicated labor matters,” said Millicent Sanchez, president of the Worklaw® Network and a partner at Swerdlow Florence Sanchez Swerdlow & Wimmer, in a statement issued after the Texas ruling. The Minnesota plaintiffs said they would continue to forge ahead with their parallel suit “to help cement the Texas victory.”