Employment Practices Guide Update August 2012

Hot Topics in Employment Practices Guide

Pattern-or-practice theory not available to race bias plaintiffs in private, nonclass action The pattern-or-practice method of proving liability was not available to eleven Asian Americans currently or formerly employed as police officers by the Port Authority of New York and New Jersey in a private, nonclass Title VII action in which the officers asserted they were passed over for promotions because of their race, the Second Circuit ruled. Although it affirmed a jury’s verdict in favor of seven of the officers on their timely individual disparate treatment and disparate impact theory claims, the appeals court ruled that the continuing violations theory could not be applied to the officers’ disparate impact claims, and thus, vacated backpay and damages awards based on conduct predating the statute of limitations. (Chin v The Port Authority of New York & New Jersey, 2ndCir, 95 EPD ¶44,555)

Judicial enforcement of EEOC’s administrative subpoena ordered as to bias claims based on English literacy status The EEOC was entitled to judicial enforcement of an administrative subpoena seeking information from a temporary staffing company as to a Jamaican-born worker’s Title VII and ADA charges based on his English literacy status, the Fourth Circuit ruled. Even though the employee amended his initial charge, alleging national origin discrimination in violation of Title VII, to assert an ADA claim based on his intellectual disability, the EEOC had authority to investigate the worker’s claims under both statutes. (EEOC v Randstad, 4thCir, 95 EPD ¶44,566)

Failure to show harassment was based on gender doomed hostile environment claims An employee who claimed that he was harassed and bullied while working as part of an oil rig crew could not proceed with his federal and state law claims of hostile work environment because he failed to show that the bullying and harassment occurred because of his gender, ruled the Sixth Circuit Court of Appeals. (Wasek v Arrow Energy Services, Inc, 6thCir, 95 EPD ¶44,563)

Employee who visited doctor’s office only for prescription refill failed to make out FMLA interference claim An employee who was discharged for excessive absenteeism following an incident in which he failed to show up for his shift (because he went to his physician’s office to request a records transfer and obtain a prescription refill) was unable to pursue his Family and Medical Leave Act (FMLA) interference claim, the Seventh Circuit has ruled. Affirming the district court’s dismissal of the employee’s claim on summary judgment, the appeals court held that the employee was not entitled to FMLA leave because his actions at the doctor’s office—where he did not have an appointment and was not examined—did not constitute treatment for purposes of FMLA coverage. (Jones v C&D Techs, Inc, 7thCir, 95 EPD ¶44,565)

Police trainee could pursue Section 1983 claims without exhausting Title VII administrative remedies An employment discrimination plaintiff asserting a violation of a constitutional right may bring suit under Section 1983 alone, without having to plead concurrently a violation of Title VII and comply with Title VII’s procedural requirements, the Eighth Circuit held. Accordingly, the appeals court ruled that a federal district court erred in dismissing, for failure to comply with Title VII's procedural requirements, a police officer trainee’s sexual discrimination and harassment claims brought under Section 1983 alone. (Henley v Brown, 8thCir, 95 EPD ¶44,567)

Employer’s prompt remedial action precluded employee’s HWE claim A district court properly found that an employer’s prompt remedial action precluded employer liability on an employee’s Title VII claim that she was sexually harassed by a coworker, ruled the Tenth Circuit Court of Appeals. The female employee worked next to a male employee whom she alleged was "notorious" for his sexually demeaning conduct. For example, she claimed that he viewed sexually explicit videos, put up graphic posters of women, and made gender-biased comments. She claimed that the comments were constant and another female coworker said they were “daily, and sometimes hourly.” In addition, the male coworker treated her disrespectfully and ridiculed her in meetings. (Bertsch v Overstock.com, 10thCir, 95 EPD ¶44,553)

Reduction in FBI employee’s responsibilities was adverse action The Court of Appeals for the District of Columbia reversed and remanded a grant of summary judgment in favor of the FBI on an Egyptian-American employee’s Title VII claim that his transfer was discriminatory based on his national origin. After concluding that a reasonable juror could find that the employee’s reduction in responsibilities constituted a materially adverse action, the D.C. Circuit noted that the district court did not consider whether the employer’s proffered explanation for the transfer was pretextual because it had concluded that the transfer was not materially adverse, and so it did not examine the employee’s proffered evidence of discriminatory motive. Because the district court did not reach this fact-intensive issue, and the parties did not fully brief it to the appeals court, consequently, the case was remanded for further examination of the employer’s reason for the transfer. However, the district court’s refusal to grant a new trial after a jury returned a verdict for the employer on the employee’s retaliation claim was affirmed. (Youssef v FBI, DCCir, 95 EPD ¶44,577)

Despite evidence of supervisor’s slur, misconduct allegations not pretext for racial bias A litigious employee who himself had been subject to several investigations could not establish that his dismissal for falsifying expense receipts was pretext for race discrimination, ruled the D.C. Circuit Court of Appeals. Despite evidence that a supervisor made a racial slur, the appeals court found insufficient evidence to support the employee’s claim that his termination was due to race discrimination. (Hampton v Vilsack, DCCir, 95 EPD ¶44,579) EEOC granted protective order against employer’s overbroad subpoena from former employers The EEOC was granted its motion for a protective order due to the overbroad nature of subpoenas drafted by an employer that sought "any and all personnel records" from an employee’s three previous employers, ruled a federal district court in Arizona. The court found that evidence relating to the employee’s shift preferences and past earnings was not likely to lead to admissible evidence. However, the employer was permitted limited access to the employee’s personnel records for purpose of identifying possible causes of emotional distress, and the court determined that information about prior complaints filed by the employee could lead to admissible evidence. (EEOC v Evening Entm’t Group, LLC, DAriz, 95 EPD ¶44,557)

Raising EEOC’s failure to good faith conciliate as affirmative defense in answer did not waive confidentiality of process The Equal Employment Opportunity Commission’s (EEOC) motion to deem the confidentiality of the conciliation process in a Title VII case waived by an employer was denied by a federal district court in Illinois, even though the employer listed the federal agency’s failure to conciliate in good faith as an affirmative defense in its answer to the complaint and in objection to discovery (EEOC v Mach Mining, LLC, SDIll, 95 EPD ¶44,571)

Employee’s claim of same-sex discrimination survives Because an employee pled sufficient facts to support her state law discrimination claims, her employer’s motion to dismiss was denied, ruled a federal district court in New York. However, the court dismissed the employee’s aiding and abetting claim, finding she abandoned the claim, and dismissed the employee’s retaliation claim, noting that the rejection of sexual advances does not constitute a protected activity. (Reid v Ingerman Smith LLP, EDNY, 95 EPD ¶44,564)

“Liking” on Facebook was not protected speech “Liking” a candidate for local election on Facebook does not amount to speech, a federal district court in Virginia held, rejecting employees’ claims that a sheriff’s office violated their free speech rights when it fired them for, among other things, giving the familiar cyber-nod of approval to the social media page of the rival for the sheriff’s job. Because the employees had not engaged in constitutionally protected speech, their First Amendment claim failed as a matter of law. The case has garnered considerable media attention and, perhaps ironically, has prompted more than a fair amount of "shares." (Bland v Roberts, EDVa, 95 EPD ¶44,560)

Illinois enacts law prohibiting employers from requesting social network passwords and account information On August 1, 2012, Illinois Governor Pat Quinn signed House Bill 3782 — a law making it illegal for an employer to request an employee’s or job candidate’s social network account information, such as username or password, in order to gain access to their account or profile. The law takes effect on January 1, 2013.