legal update on discrimination, harassment and retaliation law/media/files/... · the husband’s...
TRANSCRIPT
37 Offices in 18 Countries
Legal Update:Discrimination,Harassment &Retaliation Law
Jeff [email protected]
Tara [email protected]
Traci [email protected]
November 7, 2012
2
3
Supreme Court
• Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC,132 S.Ct. 694 (2012)
Plaintiff was an elementary school teacher who taught both secular
and non-secular classes
After plaintiff’s medical leave and the school’s refusal to return her to
the classroom, plaintiff was terminated.
Employer asserted affirmative defense of ministerial exception
4
Supreme Court Docket
• Vance v. Ball State Univ., 646 F.3d 461 (7th Cir. 2011)
Seventh Circuit held that supervisory liability for harassment did not
extend to lower level supervisors
• Fisher v. Univ. of Texas at Austin, 631 F.3d 213 (5th Cir. 2011)
Whether the Court’s decisions interpreting the Equal Protection
Clause of the Fourteenth Amendment permit the University of Texas
at Austin’s use of race in undergraduate admissions decisions
5
6
Class Actions
• Puffer v. Allstate Ins. Co., 675 F.3d 709 (7th Cir. 2012)
Plaintiffs claimed salary administration system had disparate impact
on female employees
Class certification properly denied
• McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 672F.3d 482 (7th Cir. 2012)
Reversed denial of certification of class of 700 African-American
financial advisors based on disparate impact
Case was certified for the purpose of deciding whether the
defendant’s challenged policies created a disparate impact to
members of a protected class and for the purpose of ruling on
plaintiffs’ request to enjoin such practices.
Any claims for monetary damages would then have to be brought as
separate proceedings
7
• Richter v. Advance Auto Parts, 686 F.3d 847 (8th Cir. 2012)
Filed charge with EEOC checking box for race and sex
Administrative charge was dismissed
Plaintiff filed lawsuit claiming retaliation.
The court held that a complainant must file a charge with respect toeach alleged unlawful employment practice
Exhaustion of Administrative Remedies
8
Pregnancy Discrimination
• Arizanovska v. Wal-Mart Stores, Inc., 682 F.3d 698 (7th Cir. June12, 2012)
Plaintiff failed to identify a member outside of her protected class
(non-pregnant employee) that was treated differently.
• Chapter 7 Trustee v. Gate Gourmet, Inc., 683 F.3d. 1249 (11th
Cir. June 11, 2012)
Denial of light-duty position can be materially adverse action
9
Pregnancy Discrimination
• Hamilton v. Southland Christian Sch., 680 F.3d 1316 (11th Cir.2012)
Plaintiff became pregnant with her fiancé's child.
Upon informing her employer of such, she was fired and told that she
had sinned by engaging in premarital sex and “there are
consequences for disobeying the word of God.”
Title VII does not protect right to engage in premarital sex.
Title VII protects the right to become pregnant.
Issues regarding whether sinful conduct was the reason for the
termination remained for jury to determine.
10
Age Discrimination
• EEOC Final Rule
Reasonable factors other than age
• Schechner v. KPIX-TV, 686 F.3d 1018 (9th Cir. 2012)
Plaintiffs submitted expert analysis that argued, “Those individuals laid
off, as a group, are older than the group of those not laid off, and the
disparity between the two groups is statistically significant.”
Ninth Circuit found plaintiff can make out a prima facie case of
disparate-treatment age discrimination using statistical evidence if the
evidence shows a stark impact on the protected class.
• Lefevers v. GAF Fiberglass Corp., 667 F.3d 721 (6th Cir. 2012)
General statements about age and impending retirement were
immaterial where performance reviews provided a legitimate business
reason for termination.
11
Religious Discrimination
• Sanchez-Rodriguez v. AT&T Mobility Puerto Rico, Inc., 673 F.3d1 (1st Cir. 2012)
Plaintiff converted to Seventh Day Adventist which required him to
attend religious services and abstain from work on Saturdays.
Employer’s biggest sales days were Saturdays, and all sales
employees were required to work rotating Saturdays. Plaintiff refused
to do so.
Employer offered the following accommodations:
– two alternative positions;
– allowed him to voluntarily swap shifts with co-workers
– And refrained from disciplining him for months for his repeatedabsences on Saturdays
Court found the combination of accommodations to be reasonable
12
National Origin
• Cortezano v. Salin Bank & Trust Co., 680 F.3d 936 (7th Cir.2012)
Plaintiff’s husband was a citizen of Mexico who had entered the US
without a valid visa. Employer conducted an investigation based on
the husband’s illegal immigration status
“National origin” has nothing to do with legal or illegal status
Guimaraes v. SuperValu, Inc., 674 F.3d 962 (8th Cir. 2012)
Plaintiff failed to show that she was targeted because of her national
origin and, in fact, she could have been targeted for any of a number
of reasons.
Business judgment rule
– Courts generally do not disturb business judgment of employer unlessthose judgments involve intentional discrimination
13
Consideration of Arrest & ConvictionRecords
• EEOC Enforcement Guidance
EEOC’s effort to eliminate unlawful discrimination in employment
screening, for hiring or retention
Arrest & incarceration rates are particularly high for African American
and Hispanic men
– African Americans and Hispanics are arrested at a rate of 2 to 3 times theirproportion of the general population
14
15
• Hernandez v. Valley View Hospital, 684 F.3d 950 (10th Cir. June26, 2012)
Plaintiff complained of alleged, racially offensive and derogatorycomments from her supervisors
Plaintiff was terminated after she stopped reporting to work
Jury could reasonably find that the elements of a hostile workenvironment and constructive discharge claims
– Plaintiff’s supervisors had repeatedly subjected her to racially insensitiveand offensive comments and jokes; and
– Plaintiff repeatedly complained.
Racial Harassment
16
Same-Sex Harassment
• EEOC v. Boh Brothers Construction Co., LLC, 689 F.3d 458 (5th
Cir. 2012)
Plaintiff’s superintendent referred to him as "faggot" and “princess,"
approached him from behind with lewd actions simulating sexual
conduct, and allegedly exposed himself to plaintiff on a number of
occasions
Plaintiff was transferred (per his request) and later laid off
Plaintiff sued alleging sexual harassment and retaliation
Jury verdict for plaintiff on harassment
Reversed by Fifth Circuit
17
Gender Specific Comments
• Passananti v. Cook County, 689 F.3d 655 (7th Cir. July 20, 2012)
Plaintiff alleged that during her employment, her supervisor repeatedly
called her “bitch,” yelled at her, and belittled her
Trial court dismissed plaintiff’s sexual harassment claim
– although the statements were “vulgar, rude, and ungentlemanly,” there wasno evidence that they were based on sex.
Seventh Circuit reversed
– a reasonable jury could find harassment
18
Friction in the Workplace
• Jajeh v. County of Cook, 678 F.3d. 560 (7th Cir. May 2, 2012)
Plaintiff, a Syrian born Muslim physician, repeated complained about a
physician coworker’s treatment.
As part of downsizing, Plaintiff was laid off
Plaintiff alleged hostile work environment based on his religion and
national origin
Court found that none of the plaintiff’s complaints over the years
mentioned his religion or national origin as the basis for the alleged
discrimination.
Title VII does not prohibit any and all verbal or physical harassment in
the work place, it only prohibits that which has a discriminatory
impetus
19
Employer’s Response
• Crawford v. BNSF Ry. Co., 665 F.3d 978 (8th Cir. 2012)
Five plaintiffs alleged sexual and racial harassment by their supervisor
Employer acted reasonably to prevent and correct any sexually
harassing behavior
The employees failed to take advantage of the preventive and
corrective opportunities provided by the employer.
Court found for the employer based on the Ellerth-Faragher defense
20
21
• Townsend v. Benjamin Enterprises, Inc., 679 F.3d 41 (2nd Cir.2012)
No protected activity for HR director who was investigating allegationsof sexual harassment
Although Title VII makes it illegal for an employer to retaliate againstan employee because the employee participated in an investigation,the Title VII clause only encompasses investigations that are inconjunction with or occur after filing a formal charge with the EEOC
Protected Activity
22
Voluntary Demotion
• Hicks v. Forest Preserve Dist. Of Cook County, 677 F.3d 781 (7th
Cir. Apr. 18, 2012)
Plaintiff, an African-American, worked as a mechanic for employer
He filed a discrimination complaint against his supervisor in 2006; over
the next 2 years, he received 28 disciplinary action forms from this
supervisor
Plaintiff was then given the choice of taking a demotion or potentially
facing further disciplinary action up to and including termination
Plaintiff accepted the demotion, but brought suit against the employer
claiming retaliation
Plaintiff was awarded $30,000 at a jury trial, and the employer was
ordered to return him to his previous position.
The Seventh Circuit affirmed
23
Legitimate Business Purpose
• Gibson v. Am. Greetings Corp., 670 F.3d 844 (8th Cir. 2012)
Timing itself was not sufficient to avoid summary judgment
• Harper v. C.R. England Incorporated, Inc., 687 F.3d 297 (7th Cir.June 8, 2012)
Plaintiff, an African American, was called a racial name by a co-
worker.
Plaintiff’s employment was terminated for attendance reasons.
Plaintiff failed to show that he was meeting the legitimate expectations
of the employer at the time of his termination, and that similarly
situated employees who did not engage in the statutorily protected
activity were treated more favorably
24
Association Retaliation
• Thompson v. North American Stainless, 131 S.Ct. 863 (2011)
it is an unlawful employment practice to fire or otherwise retaliate
against an employee’s “close family member” who has filed claim of
discrimination; “zone of interest”
• Rodriguez-Monguio v. Ohio State University, 2012 U.S. App.LEXIS 18895 (6th Cir. Sept 7, 2012)
Citing Thompson, recognized cause of action for associational
retaliation in a boyfriend/girlfriend relationship
25
Credit Information
• For those you who require CLE, HRCI or CPD please note thefollowing states have been approved, California and Ohio; aswell as Arizona, New York, and New Jersey through statereciprocity rules. If you require credit in a jurisdiction not pre-approved we can still apply to get you credit.
• Tomorrow you will receive an email with a link to an onlineaffidavit. Open this link and complete the form. Don’t forget toinclude the affirmation code on the form. Once completed, PDFa copy of the signed form to Robin Hallagan [email protected]
• Remember to complete the webinar survey immediatelyfollowing the end of this presentation. You are required tocomplete this evaluation before receiving a certificate ofattendance.
37 Offices in 18 Countries
Legal Update:Discrimination,Harassment &Retaliation Law
Jeff [email protected]
Tara [email protected]
Traci [email protected]
November 7, 2012