Thursday, February 28, 2008

EEOC may treat intake questionnaires as charges, Supreme Court rules

In 7-2 decision, U.S. Supreme Court ruled yesterday in Federal Express Corp. v. Holowecki, No. 06-1322 (U.S. Supr. Ct. Feb. 27, 2008) (PDF) that an intake questionnaire or other informal document filed with the Equal Employment Opportunity Commission that can reasonably be construed as a request for action constitutes a "charge" of discrimination within the meaning of the Age Discrimination in Employment Act.

The Court found that although the EEOC's regulations are not a picture of clarity in defining the statutory term "charge," they reasonably interpret statute and are therefore entitled to deference. To be considered a "charge," the document must embody a request by the employee for the agency to take whatever action is necessary to vindicate her rights.

The Court rejected the argument that the EEOC's failure to act on a filing meant it was not a charge. The Court did, however, admonish the EEOC to consider revising its forms and procedures to "reduce the risk of further misunderstandings."

Interestingly, Justice Thomas, who used to head the EEOC, dissented. In his dissent, joined by Justice Scalia, Thomas said the majority is essentially considering a charge to be "whatever [the EEOC] says it is." He said the standard is too "malleable" and that it "effectively absolves the EEOC of its obligation to administer the ADEA according to discernible standards."

Wednesday, February 27, 2008

Admission of "me too" evidence is within trial court's discretion, Supreme Court rules

Yesterday in Sprint/United Mgmt. Co. v. Mendelsohn, No. 06-1221, (Feb. 26, 2008) (PDF), a unanimous Supreme Court ruled that so-called "me too" evidence--testimony, by nonparties, alleging discrimination at the hands of persons who played no role in the adverse employment decision challenged by the plaintiff--is neither per se admissible nor per se inadmissible under the Age Discrimination in Employment Act (ADEA). Instead, the trial court judge must engage in a "fact-intensive, context-specific inquiry" to determine admissibility.

The district court granted the defendant's motion in limine to exclude evidence of "discrimination against employees not similarly situated to" the plaintiff. It defined "similarly situated employees" as those selected for RIF by the same manager who chose Mendelsohn and during the same time frame. The jury rendered a defense verdict.

The Tenth Circuit reversed, finding that the district court had improperly applied a per se rule excluding "me too" evidence. The Supreme Court was not so sure that a per se rule was applied, but it opined that if such a rule were applied, it would have been incorrect. However, it decided more information was needed about the reasoning of the district court, and it vacated and remanded the Tenth Circuit's decision with instructions to have the district court clarify the basis for its evidentiary ruling under the applicable Rules.

The Supreme Court's decision is not really a victory for employers or employees. It reserves to the district court the discretion to review "me too" evidence for relevance, probative value and danger of unfair prejudice.

The West Virginia Supreme Court reached a similar result in McKenzie v. Carroll Int'l Corp. in 2004.

Monday, February 18, 2008

FMLA Poster Addendum

For those of you trying to get in compliance with the newly revised FMLA, the US Department of Labor has released an FMLA Poster Insert for Military Family Leave Amendments (PDF).

As this page explains, technically, item number 1 does not take effect until the DOL issues its final regulations defining "any qualifying exigency."

Saturday, February 16, 2008

Fourth Circuit holds religious accommodation need not be complete to be reasonable

Here's an opinion employers are sure to like.

In EEOC v. Firestone Fibers & Textiles Co., No. 06-2203 (4th Cir. Feb. 11, 2008) (PDF), the Fourth Circuit found an employer's accommodations of a lab employee's religious needs to be reasonable where the employer provided several ways for the employee not to work during his religious holidays and weekly Sabbath.

In this Title VII action, the employee alleged Firestone Fibers & Textiles discriminated against him based on his religion by refusing to relax its attendance policies to allow him to be absent for religious holidays and observances, including a weekly Sabbath beginning Friday at sundown and ending Saturday at sundown.

The EEOC argued that an employer provides a reasonable accommodation only when it "eliminate[s] the conflict between the religious practice and the work requirement." "Put another way," the court explained, the EEOC argues "that Title VII requires an employer, absent undue hardship, to totally accommodate an employee’s religious observances." The court disagreed with such an interpretation:
The problem with appellants’ "total" accommodation interpretation is that such a construction ignores the plain text of the statute, namely the inclusion of the word "reasonably" as a modifier of accommodate. If Congress had wanted to require employers to provide complete accommodation absent undue hardship, it could easily have done so.
* * *

Religion does not exist in a vacuum in the workplace. Rather, it coexists, both with intensely secular arrangements such as collective bargaining agreements and with the intensely secular pressures of the marketplace.
* * *

A duty of "reasonableness" cannot be read as an invariable duty to eliminate the conflict between workplace rules and religious practice.
The court found that the following accommodations, taken together, were reasonable:

(1) Firestone’s use of a seniority-based bidding system for working shifts. The court found this to be a reasonable accommodation even though the employee lacked sufficient seniority to change his shift. ("The fact that [the employee] does not currently benefit from the seniority system does not negate the reasonableness of the accommodation.")

(2) The governing collective bargaining agreement provided the employee with 15 eight-hour vacation days and three floating days, all of which could be taken without restrictions. ("Indeed, the EEOC Guidelines on Discrimination Because of Religion highlights the use of 'flexible scheduling' such as 'floating or optional holidays,' as 'one means of providing reasonable accommodation.' 28 C.F.R. § 1605.2(d)(1)(ii) (2007).")

(3) Firestone allowed shift swaps among employees up to twice per quarter, for a total of eight times per year. (See 29 C.F.R. § 1605.2(d)(1)(i) (stating that "voluntary swap[s]" constitute "[r]easonable accommodation")).

(4) Under its attendance policy, Firestone provided all employees with sixty hours of unpaid leave.

(5) Firestone allowed the employee to take more half-day vacations than allowed under the CBA.

(6) On a weekly basis, a supervisor reviewed the shift schedules to see if he could move the employee to a day shift to allow him to observe his Sabbath without taking any leave time.

Despite all of this, the EEOC contended that Firestone should have allowed the employee to take more unpaid leave time than permitted by the company's attendance policy. Again, the court disagreed for reasons that will make perfect sense to any employer who has been caught in this situation:
It is well established that Title VII does not require an employer to violate the terms of a collective bargaining agreement, especially provisions pertaining to seniority-based scheduling.
* * *

Likewise, an employer is not required to adversely impact or infringe on the rights of other employees when accommodating religious observances.
* * *

[W]hen determining the reasonableness of a possible accommodation, it is perfectly permissible for an employer to consider the impact it would have on a seniority-based scheduling system as well as on other employees. While such considerations may not be based on mere speculation or conjecture, an employer is not required "to wait until it [feels] the effects" of the proposed accommodation before determining its reasonableness. Indeed, employers must be given leeway to plan their business operations and possible accommodative options in advance, relying on an accommodation’s predictable consequences along the way. If an employer reasonably believes that an accommodation would entail a violation of the applicable CBA or impose "more than a de minimis impact on coworkers," then it is not required to offer the accommodation under Title VII. (emphasis added) (citations omitted).
In its brief, the EEOC actually argued that "providing a reasonable accommodation for one employee's religious beliefs or practices does not adversely affect other employees, for those employees are not denied any term, condition, or privilege of employment to which they are otherwise entitled." Sure. Tell that to the co-worker who has to work every Friday night and Saturday morning so his colleague can be accommodated. The Fourth Circuit correctly recognized the argument as unsound.

Finally, the court rejected the EEOC's argument that Firestone was required to grant the employee an unpaid leave of absence of 11 days to observe two religious holidays. The employer denied the request because traditionally, it had only granted such requests for one-time, non-recurring events. "If Firestone were to grant a special exception for Wise for recurring obligations, it would have imposed the same type of burdens on the seniority-based scheduling system and Wise's fellow employees as if it had excused him from the attendance policy altogether." Then comes the following quotable quote: "As discussed earlier, evenhandedness and fairness are of paramount importance to the functionings of any workplace. Co-workers have their rights, too." (emphasis added).

One of the biggest frustrations employers deal with is the balancing of the rights of protected employees against the rights of non-protected coworkers (such as the right to fair and evenhanded treatment). The reality of the workplace is that resentment abounds when certain workers receive special treatment--regardless of the reason. While some of that is unavoidable, the court has clearly recognized that the employer need not impose more than a de minimis burden on its other employees to accommodate an employee's religious needs. The court is exactly right that evenhandedness is of paramount importance in the workplace, and that "co-workers have their rights too."

Friday, February 15, 2008

Justice Starcher steps aside in Massey case

A press release from the West Virginia Supreme Court of Appeals:
CHARLESTON, W.Va. – West Virginia Supreme Court Justice Larry Starcher announced today that he is disqualifying himself from participating in the rehearing of the Harman Mining Corporation v. A. T. Massey Coal Company case. Oral arguments on the rehearing are set for March 12 at the Supreme Court.

Justice Starcher said, "I am stepping aside, hoping that Justice Benjamin does the same, so we can end the public controversy about the case and restore confidence in our Court by having five totally impartial justices hear the appeal."

The full text of Justice Starcher’s statement filed in the case can be viewed here.

Saturday, February 02, 2008

Fourth Circuit affirms dismissal of former employee's FLSA claim, but revives his retaliation claim

In Darveau v. Detecon, Inc., No. 06-2092 (4th Cir., Jan. 31, 2008) (PDF), the Fourth Circuit held that an employee did not have show a "materially adverse" employment action in order to make out a retaliation claim under the FLSA.

After Detecon, Inc., a small wireless telecommunications consulting company, discharged one of its officers, Larry Darveau, he sued, alleging that Detecon had not paid him overtime in violation of the Fair Labor Standards Act. Fifteen days later, Detecon filed a fraud suit in state court against Darveau. Darveau then amended his complaint in the federal court case to allege that Detecon’s lawsuit constituted an illegal retaliatory action under 29 U.S.C. § 215(a)(3) (2000) of the FLSA.

The cases were eventually consolidated, and the district court dismissed Darveau’s retaliation claim for failure to state a claim under Rule 12(b)(6), and granted summary judgment to Detecon on Darveau’s remaining claims. The Fourth Circuit affirmed the summary judgment of the overtime claim, but reversed the dismissal of the retaliation claim.

The retaliation claim was dismissed because the district court, relying on older Title VII cases (which Detecon had cited to the court), ruled that in order to establish an FLSA retaliation claim, Darveau had to demonstrate that he suffered a materially adverse employment action involving an ultimate employment decision related to hiring, leave, discharge, promotion, or compensation.

This standard was rejected by the Supreme Court in the 2006 decision in Burlington N. & Santa Fe Ry. Co. v. White, 126 S. Ct. 2405, 2414 (2006). In that case, the Court held that a Title VII retaliation plaintiff need not allege or prove an ultimate adverse employment action, because "[t]he scope of the anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm." The Supreme Court ruled that Title VII’s retaliation provision requires a plaintiff simply to allege and prove "that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Id. at 2415 (citations and internal quotation marks omitted).

Following its tradition of applying Title VII retaliation cases in the FLSA context (unless reasons exist not to do so), the Fourth Circuit found that Darveau had alleged a prima facie case of FLSA retaliation:
a plaintiff asserting a retaliation claim under the FLSA need only allege that his employer retaliated against him by engaging in an action "that would have been materially adverse to a reasonable employee" because the "employer’s actions . . . could well dissuade a reasonable worker from making or supporting a charge of discrimination."... Darveau has alleged such an action here, i.e., that his employer filed a lawsuit against him alleging fraud with a retaliatory motive and without a reasonable basis in fact or law. We therefore must reverse the judgment of the district court dismissing Darveau’s retaliation claim and remand for further proceedings consistent with this opinion.
The lesson from this case is, resist the urge to file that lawsuit against an employee who just sued you under the FLSA (or Title VII, or the FMLA, ADA, ADEA or any other civil rights statute that has a retaliation provision). It just isn't worth getting sued.

Long John Silver's Says Arrrbitrator Disregarrrrded the Law

The Fourth Circuit left Long John Silver's reachin' for its noggin of rum on January 28 when it ruled that an arbitrator properly allowed three former restaurant managers and managerial assistants to proceed with a Rule 23-style opt-out class arbitration of their Fair Labor Standards Act claims. Long John Silver's Rests. Inc. v. Cole, No. 06-1259 (4th Cir., Jan. 28, 2008) (PDF). (And yes, I'm aware that Talk Like A Pirate Day is not until September 19, but I couldn't resist).

Three former LJS employees alleged that the restaurant violated the FLSA by subjecting them to payroll deductions and salary givebacks to cover losses in restaurant operations. All three had signed an arbitration agreement requiring them arbitrate the dispute under the commercial rules of the American Arbitration Association. Although the FLSA permits only opt-in "collective actions," the AAA rules permit opt-out class actions.

The employees sought class certification under the AAA rules, and the arbitrator ruled that the three employees could serve as representative plaintiffs in an opt-out class arbitration on behalf of current and former restaurant managers and managerial assistants. LJS sued in federal court, and the U.S. Department of Labor filed an amicus brief supporting its argument that the FLSA's opt-in requirement (29 U.S.C. § 216(b)) is nonwaivable. Both the district court and the Fourth Circuit disagreed. In a 3-0 decision, the Fourth Circuit held that "[b]ecause there is a debatable contention that the FLSA's § 16(b) provision did not explicitly overrule the 'opt-out' feature of the arbitration agreement, the arbitrator did not ignore the FLSA or any other applicable legal principles when he certified an 'opt-out' class."

Arrrgh.

Fourth Circuit affirms jury verdict for employee perceived as disabled

In Wilson v. Phoenix Specialty Mfg. Co., No. 06-1818 (4th Cir. Jan. 23, 2008) (PDF), the Fourth Circuit affirmed a $197,783 jury verdict against a South Carolina manufacturer for terminating, in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., the employment of a shipping supervisor it "regarded as disabled" by Parkinson’s disease.

This case is a good example of the role e-mail can play in a "perceived as disabled" claim. The company's president stated in an e-mail to an assistant that Wilson "qualifies for ADA designation." Even though the e-mail was sent more than a year before Wilson was terminated, the court found that it was an early example of how the company erroneously believed Wilson was disabled--"a perception that continued ... until his termination[.]"

The defendant also was found to have perceived Wilson as disabled because it ignored a doctor's note releasing him to work without restrictions, avoided him whenever possible, and expressed belief that he was substantially limited in his ability to see, use a computer, and perform manual tasks.

The case also contains an interesting "non ruling." Although the district court found that the Defendant owed (and breached) a duty of reasonable accommodation to Wilson even though he was not actually disabled, the Fourth Circuit refused to affirm on that ground:
As a threshold matter, Phoenix argues that an employer does not have a duty to provide accommodation to an employee it simply regards as disabled. There is a pronounced circuit split on this issue. Compare Kaplan v. City of N. Las Vegas, 323 F.3d 1226, 1232-33 (9th Cir. 2003) (concluding that there is no duty to accommodate an individual who is regarded as having a disability); Weber v. Strippet, Inc., 186 F.3d 907, 916-17 (8th Cir. 1999) (same); Workman v. Frito-Lay, Inc., 165 F.3d 460, 467 (6th Cir. 1999) (reaching same conclusion without analysis); Newberry v. E. Tex. State Univ., 161 F.3d 276, 280 (5th Cir. 1998) (same); with D’Angelo v. Conagra Foods, Inc., 422 F.3d 1220, 1240 (11th Cir. 2005) (concluding that there is a duty to accommodate an individual who is regarded as having a disability); Kelly v. Metallics West, Inc., 410 F.3d 670, 675 (10th Cir. 2005) (same); Williams v. Phila. Hous. Auth. Police Dep’t, 380 F.3d 751, 772-76 (3d Cir. 2004) (same); Katz v. City Metal Co., 87 F.3d 26, 33 (1st Cir. 1996) (same). We are not required to choose a side on this issue because the damages awarded to Wilson are tied directly to his discriminatory termination and not to Phoenix’s failure to accommodate.
That argument will have to be settled another day.