Think it’s okay not to provide a reason for termination? Think again.

Some employers operate under the assumption that “at-will” employment means that an employee does not have to be given any reason for termination of his or her employment. However, that theory may allow an employee to overcome an employer’s motion to dismiss a discrimination lawsuit, since in order to overcome such a motion, a plaintiff simply has to set forth facts sufficient to state a “plausible” claim for relief. That standard means that a plaintiff can set forth claims that would allow the court to draw inferences of discrimination, because of the absence of documentation or other evidence to the contrary.

A court clinician who specialized in placing individuals into drug treatment programs has avoided dismissal of her sexual harassment claims against a drug court judge and against the behavioral health network that put her into the court clinician job, after being removed from her position. (Tammy Cagle v. Thomas Estes & Behavioral Health Network, Inc., U.S District Court for the District of Massachusetts, Case No. 3:18-cv-10123, Aug. 22, 2018.)

Facts of the Case:

Tammy Cagle, a licensed social worker, applied to Behavioral Health Network (BHN) in June of 2016 for the position of specialty court clinician to the Pittsfield, Massachusetts drug court. BHN was under contract with the state’s Department of Mental Health (DMH) to fill that position. In July 2016, Judge Thomas Estes, the presiding judge of the Pittsfield drug court, approved Cagle’s hiring after meeting with her. Estes was Cagel’s sole supervisor from July through November 2016. After that, and during the period until March 2017, Cagle had other supervisors, but Estes was her only “consistent” supervisor.

Cagle alleges that in beginning in August 2016, Estes directed her to meet alone with him in chambers, and that she was the only drug court team member that did so. She also alleges that Estes acted inappropriately with her on various occasions, including one incident in a hotel room during a work-related conference. Cagle claims that after that incident, Estes told her that if anyone found out about their encounter, it would “be worse” for her in drug court. Cagle never reported Estes’ conduct to BHN.

Between December 2016 and March 2017, Cagle’s clinical supervisor from BHN met with her frequently, and both he and BHN’s Director of Forensics praised Cagle’s job performance on multiple occasions. In addition, on March 16, 2017, Judge Estes specifically indicated to BHN that Cagle was a “top-notch clinician.”

However, on March 17, 2017, Cagle received a call from BHN’s Director of Forensics, saying that as the result of a complaint being filed against her, Cagle was being placed on administrative leave immediately and was not permitted to return to the drug court. No details were provided, and the identity of the source of the complaint was not revealed. Cagle immediately texted Estes, who denied knowing anything about the situation.

Four days later, Cagle was reassigned to a non-drug court position, and at a lower salary. Subsequently, Estes reportedly criticized Cagle’s previous work, telling BHN that Cagle had “no people skills” and that court staff had made “many complaints” about her. On April 18, 2017, Cagle resigned her position.

Cagle’s Motion to Dismiss:

In response to Cagle’s federal court complaint against both BHN and Judge Estes, BHN filed a Motion to Dismiss. The district court denied that motion, allowing the case to proceed.

In order to prove employer liability (whether against an individual employer or a joint employer), a plaintiff must show that the employer knew or should have known of the discriminatory behavior being complained of, and that the employer failed to take prompt corrective measures within its control.

The same standard applies to an employer whose employee has claimed to have been harassed by a non-employee.

Therefore, in Cagle’s case, the issue was whether or not Cagle’s federal court complaint sufficiently alleged that BHN knew or should have known about the hostile work environment caused by Estes.

The District Court’s Decision:

Importantly for purposes of a Motion to Dismiss, the law does not require that a plaintiff herself bring alleged misconduct to the employer’s attention, so long as the employer has notice. Here, the district court determined that Cagle’s complaint “plausibly raises the possibility that BHN knew or should have known of the sexual harassment.”

It based that determination on the fact that in spite of earlier compliments from BHN on Cagle’s performance, and the absence of negative evaluations in Cagle’s personnel file, BHN informed Cagle that she was being removed permanently from her drug court position, while refusing to describe the alleged “multiple complaints” upon which that action was being taken. However, they allegedly did inform Cagle that her removal from the position partially related to a decision on her part to incarcerate a criminal defendant while he waited for a bd in a drug treatment program. In reality, however, Judge Estes made actual decisions related to sanctions for drug defendants, including incarceration.

Based on those facts, along with the timing of the March 16 accolade from Estes (Cagle was a “top-notch clinician”), and the March 17 placement on administrative leave with subsequent removal from the drug court, the district court found an inference that “BHN’s stated reason for Plaintiff’s removal from the drug court was not the real reason, or the whole reason, for ending the assignment,” and denied the Motion to Dismiss.

The court in this case quoted the First U.S. Circuit Court of Appeals in Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 18 (1st Cir. 2011): “The lack of any plausible alternative justification for the plaintiffs’ terminations makes the inference of . . . discrimination from the facts alleged more reasonable.” In other words, the combination of “abundant facts” of sexual harassment, in combination with the timing of Cagle’s discipline, created an inference sufficient to allow Cagle’s case to go forward.

At-Will Employment Doctrine:

Many employers interpret “at-will” employment to mean that they do not have to provide a reason for termination, as long as they do not believe the action to have been based on discrimination. However, that is not the legally safest interpretation. Employers should recognize that before disciplining or terminating an employee, supporting facts for that action should be carefully reviewed and documented to assure consistency and a clear decision-making process that will withstand legal scrutiny.

Is full-time presence at work an essential function of a job? One federal circuit says No.

The Americans with Disabilities Act (ADA) requires that employers reasonably accommodate employees with disabilities, including allowing modified work schedules when appropriate. One federal appellate court has addressed that issue, overlaid with the question of accommodating an employee’s postpartum depression after FMLA leave, and has held that a lower court wrongly concluded that full-time presence was an essential function of the employee’s position. Hostettler v. College of Wooster, 6th Cit., No. 17-3406, July 17, 2018.

Heidi Hostettler was fired by her employer, the College of Wooster, while recovering from postpartum depression and separation anxiety after the birth of her child. Because of her condition, Hostettler was unable to return to her job in the college’s HR Department on a full-time basis after a leave of absence.

Here are the facts, as viewed by the courts:

  • Hostettler was hired as an HR Generalist by Wooster in late summer 2013;
  • During the interview process, Hostettler informed Wooster that she was pregnant;
  • Wooster’s practice was to allow a new employee 12 weeks of unpaid maternity leave under the Family and Medical Leave Act (FMLA), even if the employee did not otherwise qualify;
  • Until the birth of her child in February 2014, Hostettler worked full-time, typically from 8:00 a.m. until 5:00 p.m., with some calls and emails during off hours and weekends;
  • Hostettler was never criticized, reprimanded, or disciplined prior to the birth of her child;
  • From February to April, Hostettler took 12 weeks of unpaid maternity leave;
  • Toward the end of her leave, Hostettler was diagnosed with severe postpartum depression and separation anxiety;
  • Believing that Hostettler was suffering from “one of the worst cases of separation anxiety” that he had seen, Hostettler’s doctor provided a restriction that Hostettler return on a part-time basis only, working a total of two or three days a week;
  • Hostettler’s supervisor (Beasley) agreed to that accommodation, suggesting that Hostettler work 5 half-days per week;
  • Hostettler agreed, and returned to work in late May on that schedule;
  • Hostettler’s performance evaluation, conducted in July 2014, contained no negative feedback, and referred to Hostettler as a “great colleague and a welcome addition to the HR team!”;
  • However, Beasley felt that Hostettler’s part-time schedule was beginning to put a strain on the rest of the department;
  • That perception was not shared by Hostettler’s co-workers, one of whom submitted an affidavit saying that Hostettler could accomplish work from home – a common practice in the department – and knew of no assignments or programs that Hostettler had failed to complete “professionally or timely” on her part-time schedule;
  • Hostettler was never criticized, reprimanded, or disciplined during the period of her part-time work;
  • In mid-July, Hostettler submitted an updated medical certification estimating that she could return to a full-time schedule in early September;
  • The day after receiving that updated certification, Beasley fired Hostettler on the premise that the department could not function appropriately unless Hostettler could return to full-time work immediately;
  • Hostettler’s position was not filled until October;
  • Hostettler sued Wooster, claiming violation of Title VII’s Pregnancy Discrimination Act (PDA), the ADA, and the FMLA.

The district court granted Wooster’s motion for summary judgment on all claims on the basis that full-time presence was an essential function of the HR Generalist position. The district court held that because Hostettler could not satisfy that essential function or suggest a reasonable accommodation that allowed her to meet that essential function, Hostettler was not a “qualified individual” protected by the ADA. That initial conclusion also formed the basis of the district court’s remaining analysis.

On appeal, the U.S. Court of Appeals for the 6th Circuit disagreed, reversing the dismissal and remanding the case back for trial on all issues. According to the Sixth Circuit, the district court wrongly concluded that full-time presence was an essential function of Hostettler’s position. First, Hostettler was able to point to two employees who had received longer period of medical leave for non-pregnancy conditions. Further, and importantly, the Court held that an employer “cannot deny a modified work schedule as unreasonable unless the employer can show why the employee is needed on a full-time schedule.” Without that, an employer is not relieved of its ADA responsibilities.

There’s an important lesson here: to avoid summary judgment on the “full-time presence as an essential function” issue, an employer must specifically tie time-and-presence requirements to some other work-related requirement, and optimally should have documentation of the same. Because Wooster failed in that regard – and simply said that Hostettler’s absence was “putting a strain on the department” – the case will go back to the district court for trial.



If You Don’t Know What GDPR Stands For, It’s Time to Find Out . . . .

The European Union’s General Data Protection Regulation (GDPR) became effective on May 25, 2018. Companies have been working to understand the significance of those new rules, and to determine their effect on US companies.

The purpose of the GDPR is to harmonize certain data privacy laws within the European Union (including the UK, for now). But it also covers businesses outside of the EU to the extent that those businesses sell goods or services – or even offer to sell, or market the sale of goods or services – to EU residents. It also applies to businesses that “monitor” EU residents, regardless of the location of those businesses.

While compliance with the GDPR is going to take the coordinated effort of companies’ leaders, legal officers, and human resources departments (one of the highest risk areas for GDPR compliance will be the processing of human resources data), here are some basic facts to support the effort to understand the GDPR:

  • The GDPR applies to large corporations that collect, use, or even simply analyze “personal data” of EU resident consumers – but the regulations also apply to businesses with as few as a single EU customer or user;
  • “Personal data” is defined as including phone numbers, email addresses, location data, and/or any other identifier that would directly or indirectly point to a particular individual;
  • The GDPR does not apply to “anonymous information,” defined as information that does not relate to an identified or identifiable natural person (for example, for statistical or research purposes);
  • Whether the GDPR applies to an individual is determined not by citizenship, but by the individual’s residential location – for example, a US citizen residing in France would be included, but a French national living in the US would not;
  • A company covered by the GDPR must use “plain language” to explain to its users its collection methods and use of personal data, and must specifically state how long such data will be retained;
  • Affected companies must provide to EU resident users a way to (1) access and, at the individual’s option, correct/delete data; and (2) object to the use of particular data;
  • Companies or organizations also can be held liable for EU personal data misused by their business partners;
  • The regulations allow for a private right of legal action within the EU for violation of the rules, which means that companies outside of the EU that violate the GDPR could face legal actions within the court of an EU Member State based on as little as a single violation; and
  • The requirements for obtaining consent under GDPR are specific and onerous, and consent may be withdrawn by the data subject.

While these facts are only a portion of the information that should be reviewed and understood by companies who may be affected by the GDPR, there are many informative websites and articles available to assist in that compliance effort. Check out these 5:

Consider some other resources, from Ogletree’s blog on the topic:

If GDPR applies to your company, it is imperative to make good faith efforts to comply. Get started by making yourself knowledgeable through the available channels, developing a to-do list, and then assuring that it gets implemented appropriately. Good luck.


Thanks to Dani Vanderzanden from the Data Privacy Practice Group of Ogletree Deakins for her contributions to this article.

Image taken from eu gdpr portal.

Opinion Letters Are Back, and Employers Should Pay Attention.

The Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) issues guidance to employers and individuals through Opinion Letters, Ruling Letters, Administrator Interpretations, and Field Assistance Bulletins. An “Opinion Letter” is an official written opinion by WHD of how a particular law that WHD enforces applies in specific circumstances presented by an employer, employee, or other entity requesting the opinion.

In 2010, the DOL abandoned the use of Opinion Letters, and Administrative Interpretations (AIs) took their place. Rather than responding to employer questions, the AIs essentially consisted of declarations of the administration’s position on various issues related to the Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA). The AIs – which came very infrequently – did not provide detailed answers to employers’ questions about day-to-day administration of the Fair Labor Standards Act FLSA and FMLA. From 2010 to 2016, the DOL issued a total of just seven AIs on the FLSA and two on the FMLA.

On June 27, 2017, the DOL resumed issuing Opinion Letters. These guidance letters from the WHD’s Administrator (or an Acting Administrator) provide a potential good faith reliance defense for actions that otherwise may constitute violations of law. In other words, an employer may act in reliance on a DOL Opinion Letter when making employment decisions regarding the certain federal laws on which Opinion Letters have been issued, specifically including the FLSA.

Keeping this fact in mind, employers should be aware of two new Opinion Letters issued on April 12, 2018 by Bryan L. Jarrett, Acting Administrator of the WHD.

  • The first (FLSA2018-18) is a letter regarding the compensability of travel time for hourly workers under the FLSA; and
  • The second (FLSA2018-19) addresses whether an employee’s medically required 15-minute breaks (taken as FMLA time) are compensable under the FLSA.

Compensability of Travel Time:

Under the FLSA, compensable work time generally does not include time spent commuting to or from work, even if the job site varies from day to day. However, unlike that commuting time, travel from job site to job site during a workday must be counted as hours worked for purposes of calculating hours paid.

Additionally, travel away from home (flying to out-of-town assignments or training, for example) is “worktime” when it cuts across an employee’s regular work hours, regardless of whether the travel is on a weekday or weekend. Therefore, a Sunday afternoon flight to a Monday assignment will be counted as “worktime” if the employee’s workday was 9-to-5, and the flight was between those hours on Sunday.

However, how is compensability of that travel time determined if there is no regular workday? The WHD says, in Opinion Letter FLSA2018-18, that an employer may use one of three ways to “reasonably ascertain an employee’s normal working hours” for purposes of calculating compensable travel time: (1) review work records to find “typical work hours” during the most recent month of employment; (2) determine the average start and end times for that month; or (3) negotiate and agree with the employee as to a “reasonable” amount of compensable travel time. According to the WHD’s Opinion Letter, when an employer uses one of these methods to determine normal working hours for the purposes of determining compensable travel time, the WHD “will not find a violation for compensating employees’ travel time only during those working hours.”

Compensability of FMLA-Related Rest Breaks:

The WHD’s second Opinion Letter, FLSA2018-19, addresses the question of whether a non-exempt employee’s 15-minute rest breaks, mandated by the employee’s health care provider and covered under the FMLA, are compensable or non-compensable under the FLSA.

Under the FLSA, short rest breaks of up to 20 minutes that “primarily benefit the employer” ordinarily are compensable. However, short rest breaks primarily benefitting the employee are not compensable. According to the WHD’s Acting Administrator, FMLA-protected breaks given to accommodate an employee’s serious health condition would be for the primary benefit of the employee. He further points out that the FMLA itself provides that such breaks may be unpaid.

However, the Opinion Letter also includes one significant point for employers: employees who take FMLA-protected breaks must receive as many compensable breaks as their coworkers receive. He provides this example:

. . . [I]f an employer generally allows all of its employees to take two paid 15-minute rest breaks during an 8-hour shift, and employee needing a 15-minute break every hour due to a serious health condition should likewise receive compensation for two 15-minute rest breaks during his or her 8-hour shift.

Post Script:

An Opinion Letter is an official document authored by WHD on how a particular law applies in specific circumstances presented by the person or entity requesting the letter. Opinion Letters represent official statements of agency policy, and can be relied upon to provide insight into how the DOL would interpret the application of the laws on which the letters offer guidance.

However, it also is important to note that each Opinion Letter includes a caveat stating that the opinion offered in any specific letter is based exclusively on the facts presented for the issuance of that particular letter. Therefore, employers should refrain from generalizing the decisions set forth in any letter, or attempting to extrapolate or stretch the opinion to fit facts that are not the same as those addressed in the Opinion Letter.

Sharing an employee’s EEOC charge with other employees may violate the ADA.

The right to communicate with the Equal Employment Opportunity Commission (EEOC) is protected by federal law. In fact, the EEOC’s Strategic Enforcement Plan identifies, as one of its six enforcement priorities, “preserving access to the legal system.” Recently, one employer learned that a letter from its in-house attorney to its workforce may be viewed as violating federal law  by “chilling” employees’ willingness to file discrimination claims.

In September 2015, the EEOC filed a lawsuit in federal court in Connecticut, against Day & Zimmermann NPS (DZNPS), a provider of staffing services to the power industry. The suit alleged that DZNPS violated the Americans with Disabilities Act (ADA) when that company sent a letter from its in-house counsel to nearly 150 employees, informing them that one of their co-workers had filed a disability discrimination charge. The letter divulged the name of the employee, the specific allegations in the charge (including the nature of the disability alleged), and the actual accommodations sought by the individual.

The EEOC’s lawsuit invoked the ADA’s “interference provision,” alleging that the sharing of details related to the employee’s charge not only amounted to retaliation against that employee, but also created a potential “chilling effect” by intimidating other employees against filing charges in the future. The company responded by stating that the letter was provided to other employees as a “courtesy” simply to alert them that they may be contacted by the EEOC with respect to the original charge.

Cross motions for summary judgment by the parties both were denied by the court. Instead, the court found, in late August of 2017, that the case should be determined at trial by a jury, both on the retaliation claim against the filer of the original charge and on the interference claim affecting other employees.

A settlement was reached in November 2017. In that settlement, the company agreed to “extensive injunctive relief” and $45,000 in compensatory damages to the filer of the original EEOC charge.

This decision involving the EEOC’s New York district Office – which oversees NY, Northern NJ, CT, MA, RI, VT, NH, and ME – should be noted by employers and, more specifically, by their in-house counsel. The ADA’s interference provision was interpreted in this case as protecting an individual charge filer from retaliation, as well as protecting workers who hadn’t yet engaged in any specific EEOC-related activity.

All that is required to establish an ADA interference claim is to point to evidence of an employer action that could be interpreted as coercing or intimidating an employee into not exercising his or her rights under the ADA. In this case, the letter, which included specifics about the employee’s disability discrimination charge, was sufficient to get the lawsuit in front of a jury. In-house counsel therefore should ensure that if a letter to other employees is necessary, that letter should be limited in scope and factual information. Such careful action can avoid unintended liability under the ADA’s interference provision.

Addressing Requests for Additional Time Off After a Leave of Absence: Walk in the Park, or Maze Without a Map?

Is additional time off after a leave of absence a “reasonable” accommodation? The answer is unclear, and usually is “It depends.” Federal courts recently have disagreed with each other on the issue, and the question has received continued and increasing attention after the EEOC’s 2016 Guidance on medical leaves under the Americans with Disabilities Act.

In the shadow of that question is a more critical – and often overlooked – issue: the way in which an employee’s request for additional leave is approached by an employer. One California employer recently was sent a clear message by a jury when that company completely failed to address an employee’s request for additional leave to deal with a post-injury recovery and depression and instead, determined without discussion that it was unreasonable. The jury’s total award to the employee, including punitive damages, was over $4.5 Million. Here are the facts:

  • Della Hill worked as a counselor for a non-profit drug abuse program in Los Angeles County;
  • In 2014, Hill was honored by the County for her work in that program;
  • In 2015, Hill injured her arm and took time off to recover from that injury and from a diagnosis of severe depression;
  • Hill was scheduled to return to work on March 23, 2015, but asked for an extension of her leave until April 11, 2015 – an additional 18 days;
  • The request was not addressed and, instead, Hill was fired from her job on March 31, 2015 for failing to return from leave, without discussion about any accommodation or possible re-employment in the future;
  • Hill filed suit under California law, which is analyzed similarly to federal anti-discrimination law;
  • After a trial, the jury found in favor of Hill and awarded nearly $550,000 in past and future wage loss, and an additional $1.35 Million in compensatory (non-wage) damages;
  • The jury also determined that the employer’s failure to engage in any interactive discussion with Hill was evidence of “malice, oppression, or fraud,” and awarded over $2.6 Million in punitive damages.

What’s the moral of this story? The jury’s reaction, and its resulting message to the employer, was based not on the general question of whether Hill’s request for an additional 18-day leave was “reasonable,” but on the specific lack of interaction by the employer after that request from Hill.

Employers should seek to understand the distinction highlighted by this jury’s verdict. Whether or not a requested accommodation is reasonable is subsidiary to the method used by an employer to address the request. This case points out that the method must include some form of interactive discussion that allows information to be exchanged – both state and federal disability discrimination laws require that. As is obviously illustrated in this case, lack of clear communication can lead to unintended (and unexpected) financial consequences.


(Thank you to Niya McCray at Bradley Arant Bolt Cummings in Birmingham for her analysis of this case.)

Breastfeeding is a “gender-specific condition” protected by the Pregnancy Discrimination Act.

Does Title VII’s Pregnancy Discrimination Act (PDA) protect nursing mothers against post-pregnancy workplace discrimination? One federal court – the 11th U.S. Circuit Courts of Appeals – recently gave a resounding “Yes” to that question. Hicks v. City of Tuscaloosa, Alabama, 11th Cir., No. 16-13003, September 7, 2017. (With that decision, the Eleventh Circuit becomes the second federal appellate court to answer that question in the affirmative, with the Fifth Circuit having done so in 2013).

Stephanie Hicks was an investigator on the narcotics task force of the Tuscaloosa Police Department. She became pregnant in 2012. In spite of being directed by her supervisor at the time, Lieutenant Teena Richardson, to take only six weeks of leave, Hicks took the twelve weeks available to her under the Family and Medical Leave Act (FMLA) for the birth of her child.

On her first day back from FMLA leave, Hicks was written up for performance issues, in spite of the fact that her most recent performance evaluation stated that she had “exceeded expectations.” Richardson also was overheard by Hicks saying that she would find a way to “get [Hicks] out of here.” Seven days later, Hicks was transferred from the narcotics task force to the patrol division. As a result of that transfer, Hicks lost her vehicle and weekends off, took a pay cut, and was assigned different job duties.

Hicks then went on leave for postpartum depression. During that leave, Hicks’ doctor wrote to the Department, asking that Hicks be considered for alternate duties upon her return, such as a desk job, as the bullet-proof vest she was required to wear for patrol was physically restrictive and could cause breast infections that would impede her ability to breastfeed her child. There was evidence that the City provided desk jobs to employees to accommodate temporary medical conditions/injuries.

When Hicks returned from leave, she requested a desk job where she would not be required to wear a vest, and where she could conveniently take breaks to breastfeed. But because the Chief did not believe that breastfeeding warranted alternate duty, he informed Hicks that her choices were to forego the bullet-proof vest, or to wear a modified vest, and that she could take breaks during her patrols to breastfeed. Hicks considered the “no vest” option to be no accommodation at all, since patrols were inherently dangerous, and she was concerned because the modified vests left gaping, dangerous holes in the protection. She then resigned from employment.

Hicks filed a lawsuit against the City of Tuscaloosa, claiming: pregnancy discrimination; constructive discharge; FMLA interference; and FMLA retaliation. A jury found in favor of the City on the FMLA interference claim, but for Hicks on the remaining three claims. Hicks ultimately was awarded over $160,000, plus her attorney fees and costs.

The City asked the court for judgment in its favor in spite of the verdict or, in the alternate, for a new trial. Those requests were denied. Instead, the Eleventh Circuit found that the case provided “ample evidence that Hicks was both discriminated against on the basis of her pregnancy and that she was retaliated against for taking her FMLA leave,” and upheld the jury’s verdict.

Here are the events that led to the Eleventh Circuit’s decision:

  • Richardson’s statements regarding Hicks, and the length of Hicks’ leave;
  • Actions that were taken within 8 days of Hicks’ return from that leave;
  • Disregard by the department for the request made by Hicks’ doctor for alternate duty; and
  • The Chief’s unwillingness to view breastfeeding as an issue requiring accommodation.

According to the Eleventh Circuit, the PDA was meant to extend the protections of Title VII to all matters concerning the childbearing process’ “physiological occurrences peculiar to women,” including those that are post-pregnancy. While employers do not have to provide special accommodations to breastfeeding workers – other than those required by state law and under the current Affordable Care Act – Title VII and the PDA preclude employers from taking adverse action based on gender-specific physiological occurrences, and Courts now seem to be including breastfeeding in those occurrences.

This case also reminds employers that they must treat women with pregnancy-related conditions the same as workers who aren’t experiencing pregnancy-related conditions, as determined by the U.S. Supreme Court in Young v. United Parcel Service, Inc., in 2015.

Employer’s “solicitous treatment” of alleged rapist may create a hostile environment for coworker/victim.

Can an employer’s perceived preferential treatment of an alleged rapist create a hostile work environment for the female employee who reported the rape? The 9th U.S. Circuit Court of Appeals recently held that a jury should determine the answer to that question. Fuller v. Idaho Dept. of Corrections, 9th Cir., No. 14-36110, July 31, 2017.

On August 22, 2011, Cynthia Fuller, an employee of the Idaho Department of Corrections (IDOC) was raped outside of the workplace by a co-worker, Herbt Cruz. Prior to that assault against Fuller by Cruz, IDOC had placed Cruz – whose workplace conduct had been the subject of prior complaints by three other female co-workers, but who had received no discipline for those incidents – on administrative leave because he was under criminal investigation for a prior rape reported in July 2011.

IDOC’s Deputy Chief directed its district manager to maintain contact with Cruz while he was out on that leave, to keep Cruz informed about the ongoing rape investigation and to “make sure he’s doing okay in terms of still being our employee.” In addition, IDOC management told its employees that the agency “looked forward” to Cruz’s “prompt return” to work.

On September 6, 2011, when Fuller reported the rape by Cruz, she was told that Cruz “had a history of this kind of behavior.” But on September 7, one day after Fuller’s rape report and the day on which she obtained a civil protective order against Cruz, an IDOC supervisor sent an e-mail to all IDOC employees, including Fuller, telling them to “feel free” to contact Cruz and “give him some encouragement, etc” because Cruz was “rather down, as to be expected.”

Subsequently, Fuller requested paid leave under IDOC’s policy. That policy – under which Cruz was being paid – allows the Director to grant paid administrative leave in an “unusual situation, emergency, or critical incident.” Fuller also requested “guidance” from the IDOC regarding any assistance to which she may be entitled “as a victim.”

Fuller’s requests were denied, and Fuller was advised to use vacation and sick time for any needed time off. Fuller then applied for and was granted FMLA leave. During Fuller’s leave, employees were told that she was absent for illness, but nothing further, which led staff members to assume she was “faking being sick.”

Although Fuller had obtained a civil protective order against Cruz, IDOC refused to prohibit Cruz from coming to the premises. Instead, Fuller was told that “Cruz is still our employee [a]nd we have to be conscious of his rights.” Further, IDOC’s management did not disclose the basis of Cruz’s leave to employees because they didn’t want to have a “stigma hanging over [him].”

Fuller resigned, and ultimately sued IDOC, including a hostile work environment claim under Title VII. Her claims were dismissed by a federal district court, and she appealed the hostile work environment claim. The Ninth Circuit vacated the dismissal and remanded the claim for trial, awarding the costs of the appeal to Fuller.

Let’s review the steps taken by (and inactions on the part of) IDOC that led to the Ninth Circuit’s decision, including:

  • IDOC’s prior failure to discipline Cruz for inappropriate workplace behavior;
  • IDOC’s proactivity to “make sure [Cruz was] doing ok” during the criminal rape investigation;
  • IDOC’s announcement to its employees that it was “looking forward” to Cruz’s prompt return from that investigation;
  • IDOC’s suggestion that employees provide “encouragement” to Cruz during his leave;
  • IDOC’s rejection of Fuller’s request for paid leave, although Cruz had received paid leave; and
  • IDOC’s failure to provide victim assistance/information to Fuller.

Even if each of these, standing alone, had a legitimate explanation, when taken together as a course of action, they could support Fuller’s perception that statements of concern for Cruz’s well-being – all made by IDOC managers – were based on a belief by those managers that Fuller was lying or that Cruz’s reputation was more important to them than Fuller’s safety.

According to the Ninth Circuit, such actions and statements could make it more difficult for Fuller to do her job, take pride in her work, or to desire to stay in her work position, all of which could create a hostile work environment under Title VII. Based on that rationale, the Court remanded the matter to allow a jury to decide whether a violation of Title VII existed.

Here, an employer’s reaction to an employee’s non-work-related action may lead to liability for a hostile workplace. It has become important for employers to realize that outside activities – and employers’ reactions to them – may create an unexpected basis of legal liability. Careful analysis of those circumstances, with the assistance of HR and legal when necessary, can help to avoid the risk of such liability.

Can a single use of a racial slur constitute illegal discrimination? One court says . . . maybe.

After being sued for race discrimination, an employer/company filed a motion to dismiss the claims against it, arguing that a single use of the n-word was not sufficient to state a claim for hostile work environment. The lower court agreed and dismissed the case. But in a decision of which employers should be aware, the 3d U.S. Circuit Court of Appeals reversed the dismissal, clarifying the applicable standard for reviewing a hostile work environment claim. Castleberry v. STI Group, 3d Circ., No. 16-3131, July 14, 2017.

Atron Castleberry and John Brown, both African-American males, were fired without warning or explanation two weeks after they complained that a supervisor used the n-word in talking to a group of workers that included Castleberry. Although both men were brought back to work soon afterward, they were terminated again for “lack of work.”

The men brought a lawsuit in federal court, alleging discrimination/harassment and retaliation. The court dismissed the claims on the basis that the facts did not support a finding that the alleged harassment was “pervasive and regular.” (Without illegal harassment, there could be no retaliation.)

To succeed on a race discrimination claim in the Third Circuit, a plaintiff must show, under a standard set by the U.S. Supreme Court, that the discrimination was “severe or pervasive.” Third Circuit case law, however, has been less-than-clear in articulating this standard. In fact, various past cases in the Circuit have referenced the terms “pervasive and regular” and “severe and pervasive” and, in fact, at times have used more than one standard within one case.

The difference between the correct standard – “severe or pervasive” – and the others is meaningful, because the disjunctive “or” in the correct standard allows isolated incidents, if extremely serious, to rise to the level of discrimination without a pervasive on otherwise ongoing element.

In the specific case being reviewed by the Third Circuit, no factual record had been developed, so there was no way for the court to determine whether the isolated incident complained of was sufficient to state a claim under the correct “severe or pervasive” standard. For that reason, the Court reversed the lower court’s decision, and remanded the case back for further review.

The lesson for employers is important: all complaints of discrimination should be reviewed carefully, whether or not the actions complained of occurred multiple times or on only one occasion. No assumption should be made that a single incident cannot support a claim of discrimination or hostile work environment. The determinative factor is whether the incident could “amount to a change in the terms and conditions of employment.” If so, the complained of action could be held to constitute discrimination and could support claims of harassment, hostile work environment, and retaliation.


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Company’s reaction to claim of unequal pay is a “don’t do” check-list for employers.

Complaints of unequal pay should not be taken lightly, and certainly should not be met with an immediate adverse employment action. The 8th U.S. Circuit Court of Appeals recently reinstated a female office worker’s equal pay retaliation claim that had been dismissed by a federal district court, and is allowing that case to move forward to a jury. Donathan v. Oakley Grain, Inc., 8th Circ., No. 15-3508, June 28, 2017.

Here’s what happened in that case:

  • A female office employee (Donathan) with a “good work ethic” and no prior poor reviews or prior discipline complained of unequal pay;
  • Eight days later, Donathan was laid off, along with three seasonal workers and an individual fired for documented performance issues;
  • Four days later – the first work day after the firings – the three seasonal workers were re-hired, along with a replacement for Donathan;
  • Donathan’s replacement was not licensed to do the job that Donathan had held, and did not possess experience similar to Donathan’s;
  • Donathan filed an EEOC charge and, ultimately, a federal court lawsuit which included a retaliation claim under the Title VII/Equal Pay Act;
  • The district court dismissed the claims in response to a motion for summary judgment by the employer;
  • Donathan appealed to the Eighth Circuit, which reversed the dismissal of the retaliation claim.

A plaintiff’s ultimate burden in a Title VII retaliation case is to prove that an impermissible retaliatory motive was the “but-for” cause of the adverse employment action, which is a relatively high bar – higher than simply having to prove that the protected activity of the plaintiff was one of the “motivating factors” of the firing. But in this case, the Court held that Donathan’s case should be decided by a jury for the following reasons:

  • The business reason provided by the company for Donathan’s layoff was “economic necessity tied to a seasonal downtown” in business, but Donathan’s office position never had been included in seasonal layoff in the prior years during which Donathan had worked for the company;
  • Donathan had no prior negative reviews or disciplinary actions;
  • A replacement was hired for Donathan by the very next work day;
  • The temporal proximity between Donathan’s complaint of pay inequality and her layoff (there was evidence of a phone call between managers regarding layoffs just after, and on the same day, as Donathan’s complaint, and the layoffs occurred eight days later) was “strong evidence” of retaliation.

This case is a check-list of “don’t do” actions for employers. First, and importantly, there was no factually supported business-related reason for Donathan’s termination. She was a successful employee without prior disciplines or negative evaluations, and her office position never had been included in seasonal layoffs prior to that time. Next, the business rationale given by the company (seasonal slowdown) was immediately clouded by the fact that the three seasonal workers laid off with Donathan were re-hired on the very next business day. Finally, at the same time that it brought back the three seasonal workers, the company hired an individual whose qualifications were measurably lower than Donathan’s rather than re-hire Donathan, again weakening its “legitimate business reason” for the termination.

While the dissent in this case suggests that “the majority opinion is a victory for inferring retaliatory intent from temporal proximity,” such characterization overlooks the fact that temporal proximity was only one of the number of factors on which the Court’s decision was based.

Employers should recognize that thoughtful and careful consideration and investigation of an employee’s claim of unequal pay can avoid a retaliation claim and the attendant legal action that most certainly will accompany it. In this case, there was no documented discussion, investigation, or consideration of Donathan’s issues prior to her termination and replacement.