Employment Practices Guide Update
July 2012
Hot Topics in Employment Practices Guide
Supreme Court invalidates much of Arizona immigration law, including employment provision
Arizona’s S.B. 1070, enacted in 2010 to stem a growing tide of undocumented immigration into the state, is largely preempted by federal law, a divided U.S. Supreme Court held. Among the state law’s provisions struck down by the High Court was Sec. 5(C), which makes it a criminal misdemeanor for “an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor” in the state. (Arizona v United States, USSCt, 95 EPD ¶44,539)
McDonnell Douglas framework inapplicable to pleading stage, dismissal of putative race bias class action reversed
Emphasizing that the McDonnell Douglas framework does not apply at the pleading stage, the Sixth Circuit has reversed a federal district court’s dismissal of a putative Title VII and Sec. 1981 class action brought by an African-American employee against Humana. Finding the complaint met both the “fair notice” and “plausibility” standards set forth by the U.S. Supreme Court, the Sixth Circuit expressed no opinion on whether the class ought to be certified. (Keys v Humana, Inc, 6thCir, 95 EPD ¶44,545)
District court properly refused to consider tribal affiliation bias claim
A federal district court properly refused to address a college professor’s Title VII national origin discrimination claims based on tribal affiliation, ruled the Eighth Circuit Court of Appeals. The employee’s EEOC charge failed to exhaust his administrative remedies for national origin discrimination based on tribal affiliation and he also failed to raise that issue in his amended complaint, the appeals court found. (Onyiah v St. Cloud Univ, 8thCir, 95 EPD ¶44,548)
HWE claim revived based on evidence of at least a dozen racially offensive remarks and jokes in 14 months by supervisors
A former employee’s Title VII hostile work environment claim survived an employer’s motion for summary judgment based on evidence of at least a dozen racially offensive jokes and remarks made by the alleged harassers during 14 months that they supervised the employee, ruled the Tenth Circuit Court of Appeals. (Hernandez v Valley View Hosp Ass’n, 10thCir, 95 EPD ¶44,540)
Genuine issue of fact remained as to why Christian school terminated teacher
A Christian school teacher who became pregnant after engaging in premarital sex, and then married her fiance within the month, was entitled to her day in court because it was unclear whether the reason for her termination was her having engaged in premarital sex or her pregnancy, ruled the Eleventh Circuit Court of Appeals. Reversing the lower court’s grant of summary judgment to the school on the employee’s pregnancy discrimination claim, the appeals court remanded the case for further proceedings. (Hamilton v Southland Christian Sch, Inc, 11thCir, 95 EPD ¶44,538)
Nonpregnant comparator not needed in light of other bias evidence unnecessary; withdrawal of light-duty offer after EEOC charge shows reprisal
A pregnant employee who was denied light duty and terminated did not need to show that a nonpregnant comparator was treated more favorably, determined the Eleventh Circuit Court of Appeals in reversing a grant of summary judgment for an employer on the employee’s Title VII pregnancy discrimination claim. In addition, the fact that the employer had decided to unconditionally offer a light-duty position to the employee until it learned of her EEOC charge and then made the position conditional on her dismissing the charge was evidence of a causal link between her protected activity and the adverse action, so summary judgment on her retaliation claim under Title VII and Sec. 1981 was reversed as well. (Chapter 7 Tr v Gate Gourmet, Inc, 11thCir, 95 EPD ¶44,527)
Retaliatory HWE claim cognizable, supported by evidence of intimidation, ridicule after EEO complaints were filed
Determining first that the it would join all of its sister circuits and recognize a cause of action for retaliatory hostile work environment, the Eleventh Circuit Court of Appeals then ruled there was sufficient evidence, including both discrete and non-discrete acts, for a jury to properly conclude that two employees were subjected to a retaliatory hostile work environment (HWE). In so ruling, the appeals court held that although the jury applied the same-decision defense to the employees’ retaliation claims, that finding did not preclude retaliation from being the “but-for” cause of the HWE they alleged. (Gowski v Peake, 11thCir, 95 EPD ¶44,525)
Bumper sticker contained derogatory statement based on gender and race but failed to evince HWE
An African-American female postal employee who complained that a Caucasian male coworker placed a bumper sticker in the workplace that stated “When All Else Fails, Blame the White Male,” and shortly thereafter discovered the same sticker on her own vehicle, was unable to proceed on her Title VII race and gender bias claims because she did not suffer any tangible adverse action, a federal district court in Alaska ruled. Dismissing her claims on summary judgment, the court also held that she failed to establish that she was subjected to a hostile work environment because the placement of the sticker in the workplace was not specifically directed at her and the placement on her vehicle did not amount to sufficiently severe or pervasive conduct. (Lockwood v Donahoe, DAlaska, 95 EPD ¶44,531)
Dismissal for lackluster performance, not because of sexual orientation
A discharged manager failed to show by a preponderance of evidence that his termination was based on his sexual orientation or in retaliation for his complaints of discrimination, ruled a federal district court in Connecticut. Rather, there was ample evidence to support the employer’s contention that the employee was let go because of “lackluster” performance, the court concluded after a bench trial on his claims of discrimination under Connecticut law. (Obinabo v RadioShack Corp, DConn, 95 EPD ¶44,536)
EEOC barred from deposing employer’s CEO in Title VII action
In a Title VII action asserting that an employer engaged in an ongoing pattern and practice of unlawful discrimination by examining criminal and credit histories of African-American, Hispanic, and male job applicants, the EEOC was not entitled to depose the company’s chief executive officer, a federal district court in Maryland ruled. A deposition of the CEO would be “unreasonably cumulative or duplicative” since the agency had already deposed three executives individually and one as the company’s Rule 30(b)(6) corporate representative; accordingly, the employer’s motion for a protective order was granted. (EEOC v Freeman, DMd, 95 EPD ¶44,541)
Directive to use vacation days in lieu of Sabbath work not per se reasonable accommodation
After rejecting an employer’s assertion that it was per se reasonable as a religious accommodation to allow an employee to use accrued vacations days to avoid mandatory Sabbath work, a federal district court in North Carolina denied the employer’s motion for summary judgment on the employee’s religious discrimination claim. There were questions of material fact as to whether the accommodation proposed by the employer was reasonable. Although the employer argued that other accommodations would create undue hardship, there was no evidence that alternatives would create more than a de minimus impact on coworkers or a cost for the employer, the court ruled. (Jacobs v Scotland Mfg, Inc, MDNC, 95 EPD ¶44,544)
Watermelon left on desk, use of word “boy” not enough to support HWE claim
Allegations by an African-American sheriff’s office employee that one coworker referred to him as “boy” over a three-month period, another said “there goes the neighborhood” four or five times over a month and a half, and a third left watermelon at his workstation were insufficiently severe or pervasive to create a hostile work environment (HWE) claim, a federal district court in Virginia ruled. (Currie v Arthur, EDVa, 95 EPD ¶44,549)
What’s New in the Employment Practices Guide
New developments added:
EEOC’s Final Rule on Disparate Impact and RFOA under the ADEA – ¶5348
EEOC’s Informal Advisory Letter on Medical Inquiries under the Rehab Act, GINA, Title VII, and the ADEA – ¶5349