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Questions mount in the aftermath of Supreme Court’s much celebrated, historical decision

June 27th, 2013  |  Pamela Wolf  |  Add a Comment

As the confetti falls to the floor in the aftermath of the Supreme Court’s historic conclusion yesterday that lawfully married same-sex couples are entitled to equal protection of the federal laws, questions about exactly what this means in real terms are beginning to pile up like the empty champagne glasses after the long night of celebration.

In a greatly anticipated and deeply divided opinion, the High Court ruled that lawfully married same-sex couples are entitled to the equal protection of the laws pursuant to the Fifth Amendment to the Constitution, and thus, the Defense of Marriage Act (DOMA) must fall (United States v Windsor, June 26, 2013, Kennedy, A). “The federal statute is invalid, for no legitimate purpose overcomes [its] purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity,” wrote the majority.

Although they longed to marry, noted the Court, the two women at the heart of the case were unable to do so in the United States. In 2007, they were married in Ontario, Canada. In time, “[t]he limitation of lawful marriage to heterosexual couples, which for centuries had been deemed both necessary and fundamental, came to be seen in New York and certain other States as an unjust exclusion,” the Court observed.

President lauds the decision. Applauding the Supreme Court’s decision to strike down DOMA, President Barack Obama said what was really no more than what DOMA’s proponents had in mind: “This was discrimination enshrined in law.” The history and text of the beleaguered statute, as the Supreme Court majority so painstakingly observed, made that clear. “It treated loving, committed gay and lesbian couples as a separate and lesser class of people,” the President said, echoing the High Court. He has instructed the Attorney General to work with other members of his Cabinet to review all relevant federal statutes with the aim of ensuring that the decision, including its implications for federal benefits and obligations, “is implemented swiftly and smoothly.”

Homeland Security Secretary Janet Napolitano similarly tied the decision to federal benefits. “This discriminatory law denied thousands of legally married same-sex couples many important federal benefits, including immigration benefits,” she said. “Working with our federal partners, including the Department of Justice, we will implement today’s decision so that all married couples will be treated equally and fairly in the administration of our immigration laws.”

Making it work on the ground. The question is just how “swiftly and smoothly” the transition to new benefits rules will take place in the management and HR offices of American employers. The questions are mounting at a pretty rapid pace as benefits and HR experts mentally try to tick through and determine how many of the 1,000-plus federal laws touch by DOMA will now require changes in workplace policies.

Perhaps looming most formidably is the question of how federal laws such as COBRA, ERISA and the FMLA will now apply to workers and their family members living in states that do not permit same-sex marriage. After all, federal benefits laws were developed with the understanding that the regulation of marriage is a matter left to the states, which is still the case, except for when the state singles out a particular class of married couples for unequal treatment, of course. As the Supreme Court noted, 12 states and the District of Columbia now permit same-sex marriage; that means the great majority of employers are facing some pretty daunting questions about exactly who is entitled to spousal- and family-related benefits and protections under federal law. It could be messy:

• How will these and other federal laws now apply to same-sex couples lawfully married elsewhere who are working or living in a state that does not permit same-sex marriage?
• What about national employers whose lawfully married same-sex workers move between states that do and do not permit same-sex marriage?
• Do same-sex couples have the benefit of common-law marriage in states that permit same-sex marriage and also recognize common-law marriage?
• If a same-sex couple recognized as married under common law in one state moves to another state that recognizes common law marriage, but not same-sex marriage, are they entitled to spousal- and family-related benefits and protections afforded under federal law?

The Sec. 2 twist. And then there is the matter of Sec. 2 of DOMA, which was not involved in the Windsor case. Under Sec. 2, “No State…shall be required to give effect to any public act, record, or judicial proceeding of any other State … respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State … or a right or claim arising from such relationship.”

The Respect for Marriage Act, reintroduced on June 26 in the House by Rep. Jerrold Nadler (D-NY) and in the Senate by Sen. Dianne Feinstein (D-Cal), would alleviate this problem by repealing what remains of DOMA.

How much scrutiny applies? Other unanswered questions may have far-reaching impact going forward. For example, does anyone know if the High Court actually decided that a heightened level of scrutiny applies to same-sex couples or homosexuals as a class? The Court appears to have applied the standard used in its 1969 Rumer v Evans holding: “‘[d]iscriminations of an unusual character especially require careful consideration.”’ But the Court fails to address head-on or even mention expressly the question of whether some sort of heightened scrutiny applies. (Justice Scalia, in his dissenting opinion, points to this omission, noting that he would have applied the lowest level of scrutiny — rational review.)

And yet, the question is one that was at the heart of the case below in the Second Circuit, which determined that intermediate scrutiny applied because homosexuals are a quasi-suspect class. This issue has a huge impact on the level of protection afforded members of the LGBT community going forward.

In any event, there is little doubt that the Court’s holding will pave the way for greater federal antidiscrimination protections based on gender orientation and gender identity, whether by more expansive interpretation of existing federal law, new laws, or application of a new “careful consideration” level of scrutiny.

So many questions….just one more: Will Congress again pursue legislation with such an expressly discriminating intent?

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Court declines to compel enforcement of arbitration agreement rolled out in attempt to short circuit overtime pay lawsuit filed by store managers

June 26th, 2013  |  Ron Miller  |  Add a Comment

The old adage “there’s no use closing the barn door after the horse has gotten away” proved true in the case of retailer’s attempt to rollout arbitration agreements to its store managers aimed at short circuiting a wage suit. Store managers at Citi Trends filed a collective action under the FLSA in which they alleged that the retailer improperly designated them as exempt employees and denied overtime compensation.

In Billingsley v Citi Trends, Inc, a federal district court in Alabama declined to compel arbitration of the store managers’ claims where the retailer rolled out the arbitration agreement after litigation commenced and which specifically targeted only potential class members with the goal of undercutting the collective action. Here, the court determined that the suspicious timing of the roll-out, as well as other factors, supported its finding that the roll-out was a hurried reaction specifically targeted at curtailing this litigation.

The court observed that this motion concerned a very discrete moment in time when Citi Trends required all of its then-employed store managers to sign an arbitration agreement. In this instance, Citi Trends devised and implemented a new alternative dispute resolution (ADR) policy shortly after it was served with the complaint, and after the court had set a scheduling conference. Just a couple of weeks following the scheduling conference, Citi Trends began the process of rolling out its ADR plan. Here, the court examined the agreement for procedural and substantive unconscionability to determine its validity.

Procedural unconscionability. In terms of procedural unconscionability, the court noted that the store managers had absolutely no bargaining power. While the court concluded that the key components of the arbitration agreement were clear and comprehensible, the agreement was mandatory and the store managers reasonably understood that if they did not comply with the required policy they would be terminated. Moreover, Citi Trends did not disclose to the store managers that it had decided to defer until after resolution of the lawsuit any decision about the effect on a store manager’s employment if he or she refused to sign the agreement. Without that disclosure, the reasonable and logical conclusion for a store manager was that he or she would be terminated if they refused to sign the agreement.

The court observed that the terms of the agreement were not any more oppressive that other such arbitration agreements. However, it concluded that the agreement cannot be taken out of the context in which it was executed. Here, the store managers were ordered by their superiors to attend a meeting with a human resource representative in a private two-on-one setting. The setting was the kind of private meeting generally used in an interrogation or investigation of an employee. As a consequence, the presentation of a mandatory arbitration agreement by a HR representative in a small room normally reserved for interrogation infused the entire process with oppressiveness.

The arbitration agreement also gave the store managers no meaningful choice. Language in the agreement clearly stated that it was a condition of employment. Moreover, there was no dispute that the employer never told the employees that they did not have to sign the agreement. Rather, a reasonable reading of the documents presented to the store managers would lead them to conclude that their continued employment was conditioned on signing the agreement. Finally, the court determined that the context in which the agreements were procured from the store managers was highly coercive. Another aspect of the context surrounding the signing of the agreement that supported a finding of procedural unconscionability was the fact that the ADR plan was rolled out just four months after Citi Trends was served with this lawsuit, and HR employees testified that they had not heard of the ADR policy until an updated employee handbook had virtually been completed.

Substantive unconscionability. On its face, the court found that the terms of the agreement were reasonable. On the other hand, the documents presented to the store managers reflected that the purpose and effect of the terms of the arbitration agreement were designed to protect Citi Trends in this lawsuit. The rollout of the ADR plan just months after this suit commenced, and the rushed nature of the distribution of photocopied handbooks only to store managers supported a finding that the handbook itself was a pretext for presenting the agreement to the managers to derail their participation in this lawsuit.

Next, the court considered the allocation of risk between the parties. Here, it noted that the agreement was specifically designed to benefit Citi Trends, and its timing was calculated to reduce or eliminate the number of collective action opt-in plaintiffs in the case. Thus, the risk to Citi Trends was de minimis. On the other hand, the store managers had to choose between signing the agreement and keeping their jobs or refusing to sign, participating in the lawsuit and being terminated. Thus, the benefit to the store managers of signing the agreement was de minimis.

In this instance, the court concluded that public policy concerns were the most critical factor in determining whether the agreement was substantively unconscionable. The court noted that meetings with the store managers took place four months after the lawsuit was filed, and around the time the plaintiffs were preparing to file their motion for conditional certification of the class. Documents were presented to the store managers in a manner that could be perceived as intimidating and coercive. Here, the court’s biggest public policy concern was the effects of Citi Trends’ actions on the purpose of an FLSA collective action.

Noting that Congress passed the FLSA during the Great Depression to protect workers from overbearing practices of employers with greatly unequal bargaining power over them, here the court found that the goals of the Act would be defeated if it approved the actions taken by Citi Trends, that were designed and used to prevent employees from vindicating their rights in an FLSA collective action. In this instance, the court found that the agreement at issue reeked of both procedural and substantive unconscionability in the context in which it was presented and obtained. Thus, the court denied Citi Trends’ motion to compel arbitration of the employees’ wage claims.

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A big day at the Supreme Court for employers

June 25th, 2013  |  Lisa Milam-Perez  |  Add a Comment

The Supreme Court’s 2012-2013 term is drawing to a close with a bang, not a whimper — or, in the eyes of employees and civil rights plaintiffs, perhaps a thud. And as one management attorney noted, with a “SCOTUS smackdown” of the EEOC as well.

Last week, in a non-employment dispute, a divided High Court handed a victory to parties seeking to avoid class arbitration when it ruled, in American Express Co v Italian Colors Restaurant, that courts may not invalidate class arbitration waivers merely because a plaintiff’s cost of arbitrating a dispute individually would exceed the potential recovery. The commercial case had stark implications for parties seeking to evade mandatory arbitration of employment disputes. As the Equal Employment Advisory Council had argued in an amicus brief in the case, “Invalidating arbitration agreements because they contain class action waivers defeats the advantages and mutual benefits of arbitration, especially in the employment context.” Urging reversal of the appellate decision, it wrote “The Second Circuit’s ruling would send every case in which a party seeks to represent coworkers into court for a mini-trial on his prohibitive costs claim, however thin, despite his prior agreement to arbitrate.” The EEAC needn’t have worried.

But the employment law decisions issued Monday, the last week of the term, were even clearer wins for employers. In Vance v Ball State University, the 5-4 majority endorsed a narrow definition of the meaning of “supervisor” for purposes of determining employer liability under Title VII. In University of Texas Southwestern Medical Center v Nassar, a divided High Court rejected the notion that the reduced “motivating factor” standard of causation adopted for use in Title VII discrimination cases applied with equal force to claims of retaliation under the Act. And, while not an employment case, Fisher v University of Texas at Austin reflected the Court’s continuing willingness to revisit the wisdom of affirmative action, tightening the standards by which the government may implement race-conscious actions.

Several members of the Employment Law Daily Advisory Board shared their perspectives on the impact of today’s rulings for employers and employees.

Supervisory status under Title VII. When is an employee a “supervisor” for purposes of vicarious liability under Title VII? When he or she is empowered to take tangible employment actions against the alleged victim of unlawful conduct, the Court held in Vance v Ball State University, resolving a circuit court split and rejecting the EEOC’s guidance on the matter. (Lorene Park covered the decision for Employment Law Daily.)

Under Title VII, an employer’s liability for workplace harassment may depend on whether the harasser is a coworker or a “supervisor.” An employer is strictly liable for supervisor harassment that involves a tangible employment action. For other forms of harassment, though, the employer may avoid liability by establishing, as an affirmative defense, that it exercised reasonable care to prevent and correct any harassing behavior and the employee unreasonably failed to take advantage of the preventive or corrective opportunities provided. In a divided opinion, the Supreme Court held “an employee is a ‘supervisor’ for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim.” In the case at hand, there was no evidence that the employer empowered the individual in question to take any tangible employment actions against the employee, so she was not a supervisor. Therefore, the courts below correctly applied the negligence framework used for coworker conduct.

“In Vance, the Court sets forth a standard that affords employers greater clarity in determining who is and is not a supervisor under Title VII,” according to Keith Watts, managing shareholder in the Orange County office of Ogletree Deakins. “Employers no doubt are welcoming the conservative majority’s decision, because it narrows the definition of supervisor to those who can effect a ‘significant change in employment status’ on the employee.”

“The decision was also a direct rebuke to the EEOC and its ‘nebulous definition’ of a ‘supervisor,’” Watts added. “In what can only charitably be described as a ‘SCOTUS smackdown,’ the Court left little doubt about how it views the EEOC’s expansive, overbroad approach to statutory interpretation, application and guidance. One thing is certain: This will likely not be the last case where a conservative Court majority favors narrowing, rather than expanding, the definitions under and application of Title VII.”

“The decision in Vance makes sense,” said Ann Margaret Pointer, a partner in the Atlanta office of Fisher & Phillips. “The Court relied on everyone’s common understanding of what makes a supervisor a supervisor: someone who can affect real, that is, ‘significant’ terms of employment, not just someone who can make daily job assignments, such as scheduling work times and making routine task assignments.”

“No doubt employers want to avoid negligence-type discrimination claims and do not willingly permit team leaders or others to engage in acts of discrimination or harassment against coworkers,” Pointer added. “That’s why employers today typically have good programs for communicating their expectations that all employees treat each other with dignity and respect and make decisions on a nondiscriminatory basis. They also try to have complaint resolution processes so that serious problems do not develop. A Vance decision that had made every job assignment a matter on which an employer could be subject to strict liability would simply be untenable in today’s workplace.”

Causation standard for retaliation claims. Title VII retaliation claims must be proved according to traditional principles of but-for causation, a divided High Court ruled in University of Texas Southwestern Medical Center v Nassar. An analysis of the plain language and the structure of Title VII, as amended by the Civil Rights Act of 1991, and the High Court’s own reasoning in Gross v FBL Financial Servs compelled the conclusion that while allegations of discrimination are subject to the reduced “motivating factor” standard, retaliation claims are not, the majority held. It declined to give Skidmore deference to the EEOC’s position to the contrary, as set forth in its guidance manual, finding the agency’s explanations for its position lacked persuasive force.

“The requirement that retaliation plaintiffs demonstrate that in fact they suffered injury because of having engaged in a protected act is not surprising in light of the precise words of the statute,” said Pointer. “The burden placed on a retaliation plaintiff in regard to that kind of claim is no different from the burden placed on plaintiffs who contend they suffer injuries from an automobile accident, or virtually any other kind of negligence claim. The ruling makes sense from the standpoint of the way most statutes and common law legal requirements work.”

The majority opinion, authored by Justice Kennedy, noted that a lessened causation standard would mean more frivolous claims and would “siphon resources from efforts by employers, administrative agencies, and courts to combat workplace harassment.” Typically appellate courts provide “syllogistic rationales” of this sort, but little to guide practitioners (or employers), noted Richard Gerakitis, a Troutman Sanders partner and leader of the firm’s labor and employment practice group. However, in this instance, “Justice Kennedy’s argument or prediction does provide a useful explanation for how the lessened standard … would tyrannize employers’ indecision on managing a complaining employee’s performance.”

Justice Ginsburg, dissenting, had argued to no avail that the use of two different standards would vex both trial judges and juries. Gerakitis did not share her concern, although he foresees the procedural jockeying to come. “There are many examples of ‘but for’ and ‘a motivating factor’ definitions that courts have long used that should not hamstring judges and juries. But it’s likely that battles will be fought over the submission of special interrogatories and verdict forms that try to identify myriad examples of retaliation and ask juries to decide if those examples would dissuade a reasonable employee from raising concerns of workplace discrimination.”

Does the Nassar ruling affect how he advises his employer clients? The decision offers “yet another example of how contemporaneous documentation by the employer is critical to defending against a retaliation claim,” Gerakitis replied. “Juries will often decide on the basis of workplace fairness that someone is a victim of retaliation if the employer’s treatment was harsh and haphazard. A jury charge on ‘but-for’ still may not prevent a jury from finding for the employee in those instances.”

Of the recent High Court rulings, the Nassar decision was the “biggest deal for employers,” according to Chris Bourgeacq, general attorney, labor/HR, for AT&T Services, Inc. in Austin, Texas. “A huge deal. Not only for retaliation litigation, but also for the dozens of retaliation claims in the regulatory field under the various statutes that OSHA handles. Expect to see some significant fallout from that decision as the courts and OSHA operate under this new framework,” Bourgeacq predicted.

Consideration of race in admissions. In applying the narrow tailoring aspect of strict scrutiny, the Fifth Circuit erred in giving deference to the University of Texas’ assertion that its way of considering race in its admissions process was constitutionally permissible, ruled the Supreme Court in a 7-1 decision. Remanding Fisher v University of Texas at Austin, the Court directed the Fifth Circuit to assess whether the university has offered sufficient evidence that its admissions program is narrowly tailored to obtain the educational benefits of diversity and that no workable race-neutral alternatives would suffice. (Cynthia L. Hackerott analyzed the affirmative action decision for Employment Law Daily.)

The ruling “will certainly have fallout in the employment context as well,” according to Pointer. She cited employers’ use of criminal background checks as one example. In El v Southeastern Pennsylvania Transit Authority, a Third Circuit decision, an employer allegedly violated Title VII by rejecting job applicants with certain types of criminal records to operate buses used by individuals who were mentally disabled. “In that case, the employer put forth substantial proof from expert witnesses to establish why it had adopted the particular screening requirements it had adopted, and it tried to show that it had explored and found no alternative that would have been less discriminatory. The substantial burdens undertaken by the transit authority show how difficult it is to show — that is, to meet the burden of proof — by admissible evidence that there is no other means to achieve a laudatory goal or necessary goal; in that case, avoiding injury to a vulnerable ridership population.”

“It is going to be very difficult and very expensive for a university or other public institution to demonstrate that it has narrowly tailored an affirmative action plan and that there is no workable race-neutral means to achieve the educational benefits of diversity than the course it has taken,” Pointer concluded.

A plaintiff lawyer’s view.Vance and Nasser are a lot alike — a five-justice majority and the same dissenters recommending legislative action,” noted David Wachtel, a founding partner of the Washington, D.C., firm Bernabei & Wachtel. “Both results are in favor of employers but neither completely bars any type of claim.”

“Despite the disappointing result, a verdict for plaintiff is still possible in a strong coworker harassment or retaliation case,” Wachtel said. “If an employer cannot prove it took reasonable steps to prevent and correct sexual harassment, it should at least be possible for the employee to prove the employer was negligent. And if an employee can prove that retaliation was a motivating factor behind her firing, that employee should at least have an opportunity to show that retaliation was the ‘but for’ cause of her firing. ‘But for,’ after all, does not mean ‘sole cause.’”

“Still,” he observed, on balance, “the two decisions will make it harder to enforce employee rights because in these two important areas (31,000 retaliation charges in 2012, Wachtel noted), we can expect more challenging jury instructions.”

Gerakitis also predicted that the view from across the aisle is not so bad as it might first seem. Speaking to the Nassar decision, he noted that “in instances of ‘constructive discharge,’ it would appear that the retaliation will have to be highly pronounced and considerable to warrant the retaliation claim. However, in those instances where there is a tangible employment action taken by the employer (such as discharge or demotion), this case should not dissuade plaintiffs’ attorneys from continuing to pursue them.”

Will Congress “grant cert”? Justice Ginsburg (joined by Justices Breyer, Sotomayor, and Kagan) issued a sharp dissent in both Vance and Nassar. In the latter, for example, she wrote that the majority had seized on a statutory provision that was adopted to strengthen Title VII “and turned it into a measure reducing the force of the ban on retaliation.” She urged legislative action in both cases “to restore the robust protections against workplace harassment the Court weakens today.” Ending on a call to arms, Ginsburg noted that “the ball was once again in Congress’ court to correct the error into which this Court has fallen.”

Watts sees a Congressional response as a distinct possibility. Commenting specifically on Vance, he noted that “Congress may be called on to overturn the Court’s interpretation of who is and is not a supervisor in much the same way it stepped in with legislation following the aftermath of the Ledbetter case (the Supreme Court’s 2007 decision in Ledbetter v Goodyear Tire & Rubber Co, Inc) — to right what Congress perceived as a wrong outcome.” Watts urged employers to “be cautious in their celebration. We may expect a Lilly Ledbetter revisited.”

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Women’s Equality Act moves forward

June 21st, 2013  |  Deborah Hammonds  |  Add a Comment

New York Governor Andrew M. Cuomo’s proposal to eliminate the inequities women in New York face based on gender took a leap forward as the New York State Assembly passed the Women’s Equality Act on June 20. The comprehensive legislation (A.8070) is designed to help women overcome many discriminatory practices and obstacles as well as reaffirming a woman’s freedom to choose.

Pay inequity. One of the issues the Act addresses is pay inequity. Under current state law, employers are prohibited from paying employees of the opposite sex a lesser wage rate for equal work on a job that requires equal skill, effort, and responsibility and that is performed under similar working conditions, except where payment is made pursuant to a differential based on seniority, a merit system, a system that measures earnings by quantity or quality of production; or any factor other than sex.

The Act proposes to achieve pay equity by eliminating the ability of employers to point to “any other factor other than sex” to justify pay disparities and instead require that their pay decisions be based on legitimate reasons. In addition, the legislation would protect an employee’s right to share wage information with other employees without being retaliated against, and increase damages to successful plaintiffs in pay equity discrimination cases.

Sexual harassment. The Act would implement a significant change regarding sexual harassment. Currently, women who work for employers with fewer than four employees cannot file sexual harassment complaints as those employers are currently exempt from the harassment law. A measure in the Women’s Equality Act enacts a zero-tolerance policy for sexual harassment and would ban sexual harassment in all workplaces.

Other measures. In addition, the legislation would make employment discrimination against women who have children illegal, protect victims of domestic violence against discriminatory practices when they attempt to rent or lease housing, and strengthen human trafficking laws. The Act would also codify existing federal law to protect a woman’s right to obtain an abortion prior to 24 weeks, or when necessary to protect her life or health.

Cuomo hailed the Assembly’s action, noting the passage brings the state “one step closer to addressing gender inequalities in our state and restoring New York as a national leader of women’s rights. The Assembly had the courage to stand up on behalf of the women of New York, and now the Senate must do the same. Each and every part of the Women’s Equality Act is vitally important to the future of women in our state and New Yorkers deserve to know where all their elected representatives stand on all of them.”

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They said WHAT? Some employees create HWE nightmares just by opening their mouths.

June 21st, 2013  |  Lorene Park  |  Add a Comment

When facing hostile work environment (HWE) claims based mostly on derogatory comments linked to gender, race, or other protected characteristics, courts seem to have a mantra that Title VII is not a “general civility code for the American workplace” and often find the comments were either “stray remarks” or not severe or pervasive enough to support a HWE claim (in many cases, courts note that no physical threat or harm was involved).

Truly, it’s a sticks-and-stones-can-hurt-me kind of world and even the n-word (which you would think EVERYONE knows is offensive) won’t support a HWE claim if it is used only once or twice, depending on the court (e.g., Denham v Wal-Mart Stores East, LP, SDAla, March 26, 2013). However, courts have limits when it comes to certain “nicknames” and it wouldn’t hurt to keep that in mind when conducting training. Here are some points you might make to employees:

Don’t comment on physical attributes at all; just don’t. Given that many of the categories protected by state and federal anti-discrimination laws have some relationship to the way someone looks, you might as well train employees to zip it when it comes to being a personal mirror. Don’t comment on color, hairstyle, body shape, or even that someone looks stunning in a new outfit. Yeah, it might seem harsh, but it’s the modern workplace in a litigious world. Most especially, don’t make “fun” of someone about their physical attributes (real or imagined).

For example, an employee who was repeatedly called “Little Jimi” and “Teeny Tiny” in reference penis size (while the speaker was wiggling his little finger) survived summary judgment on his sex-based HWE, emotional distress, and negligent supervision and retention claims (Hayes v Erickson Air-Crane Co, DOre, June 18, 2013). The court found it significant that his supervisors and coworkers used the nicknames “uncountable” times. In another case, even though an employee never reported sexually harassing comments by her female manager on her body (including her breasts), she survived summary judgment on her claim that the comments were part of a sexually hostile environment (Sell v BC International Group, WDPa, May 16, 2013). To the court, her seven transfer requests in a relatively short period of time put the employer on notice that something was wrong. Ya think?

What plays in the theaters does not play well in the workplace. One of the nicknames used for the employee in the Hayes case was “Dodgeball,” a reference to an egomaniacal character in a movie of the same name who used a penis pump to enlarge his genitals. Obviously, the movie character was created to make audiences laugh (though not some critics, apparently) but certainly the employee did not find the moniker amusing and the employer was left to pay for the lawsuit. In another case, a Jordanian employee who was routinely compared to “Borat” survived summary judgment on his race and national origin based HWE claims (Zayadeen v Abbott Molecular, Inc, NDIll, January 30, 2013). Though his national origin was different from the fictional character Borat’s, the court observed that it “makes no difference whether [the employee’s] harassers did not understand or intentionally fuzzed the distinction between Jordan and Kazakhstan when engaging in the harassment.” The lesson here? You can discuss a movie but don’t compare your coworkers or subordinates to movie characters.

Terms of endearment in the home are not endearing at work. You may call your dad “old man” or “pops” but don’t even think about calling a coworker or subordinate that. Just because you see someone at work every day does not mean you can take the same liberties that you would take within your family. For example, an employee called “old fart” or “old finance guy” in meetings and “old man” on the floor of a car dealership survived summary judgment on his age-based HWE claims (Alzuraqi v Group 1 Automotive, Inc, NDTex, February 1, 2013).

Some derogatory terms are so taboo you might as well plan for a jury trial. Usually, context matters in HWE claims, but that is not always the case — particularly where “inherently offensive” terms are involved. For example, the repeated use of the n-word is a one-way ticket to a jury trial. That one is obvious, but there are more. In one recent case, a court found the terms “gook” and “slap-a-ho” inherently offensive when used many times and ruled that the targeted employee (of Thai and Hawaiian race), could proceed on his HWE claims (Christopher v Spectra Electrical Services, Inc, DAriz, June 19, 2013). In another case, a police officer who complained of a superior officer’s regular use of the term “Pollock” could proceed on his Title VII and equal protection claims (Zasada v City of Englewood, DColo, March 29, 2013). And in third case, a Muslim-American proceeded on his religion-based HWE claim after a manager repeatedly called him ““towelhead;” “terrorist;” and “f**king Muslim,” among other choice nicknames (Alzuraqi v Group 1 Automotive, Inc, NDTex, February 1, 2013).

Interestingly, a federal district court in Hawaii ruled that an employee, who was of Columbian nationality and had a thick Spanish accent, could proceed on “perceived as” Mexican HWE claims against his timeshare employer after he was repeatedly called “wetback,” “Pancho Villa,” and “amigo” (Henao v Wyndham Vacations Resorts, Inc, DHaw, February 26, 2013). Clearly a little cultural sensitivity training could go a long way.

The list could go on but the message is clear. Take measures to avoid or reduce liability by: having effective policies in place to address harassment (including word-use, nicknames), training employees (and reminding them annually) on the policies, enforcing them as soon as possible after receiving reports (e.g., separate the alleged harasser from the target, issue a corrective action plan, and require re-training), and ensuring that the employee who made the report experiences no further harassment and is not otherwise treated poorly for having spoken out. If it is a supervisor who has made the offensive comments, the measures should be more severe. In some cases courts have looked kindly on employers who removed supervisory responsibilities, at least until the supervisor went through training.

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