When a Hostile Work Environment is not Really a “Hostile Work Environment”

In employment law, the phrase “hostile work environment” is an often misunderstood concept. We often receive calls from people claiming that their boss is a true jerk who screams at everyone and has everyone at work constantly on edge because they never know when the next yelling fit will occur. A screaming boss does sound pretty “hostile” in the normal sense of the term and, if it is happening in the workplace, then it must be a “hostile work environment,” right? More often than not, the answer is no and these people are quite disappointed to hear that their boss has not broken any employment laws.

A hostile work environment refers to a situation where an employee is subjected to harassment in the workplace and may not even be able to do his job because of the offensive, intimidating, or oppressive atmosphere created by the harasser. In order to be a hostile work environment, the harassment must be due, at least in part, to some protected characteristic of the person being harassed, such as age, disability, race, gender, or pregnancy. If the boss  is subjecting an employee to less than ideal treatment simply because he is, for example, a Red Sox fan and the boss hates Red Sox fans, then this would not equate to a hostile work environment because the conduct is not based upon a characteristic or trait protected by federal employment laws. Even if some action is possibly based upon an employee’s being a member of a protected class, the conduct must still be “severe or pervasive” enough to create a hostile work environment. The United States Supreme Court has made it clear that Title VII, which prohibits race, ethnic, gender, and religious discrimination, is “not a general civility code.” As such, federal laws relating to the workplace do not prohibit offhand comments, casual teasing, or isolated incidents that are not serious.

Hostile work environments exist where a boss mocks or makes fun of an employee with a disability or a supervisor who tells crude sexist or racist jokes. If such actions are “severe or pervasive” enough then they can constitute a hostile work environment. If the boss, however, is an “equal opportunity jerk” who treats pretty much everyone at work horribly, regardless of whether they are a member of a protected class or not, then he probably is not doing anything illegal or creating a hostile work environment. If you feel you are being subjected to a hostile work environment, then you should speak with an employment law attorney.

Overtime Exemption Laws may get an Overhaul

As you may have heard, President Obama has directed the Department of Labor to “modernize and streamline” overtime exemptions. The directive aims to simplify and minimize exemptions that prevent employees from receiving overtime pay under the Fair Labor Standards Act. Some of the primary areas addressed are exemptions relating to white collar employees, home health care workers, and computer professionals, to name a few. The proposed changes could mean that many American employees become entitled to overtime pay, even if they are not currently receiving it.

The FLSA requires that all non-exempt employees be paid one and one half times their normal rate of pay for every hour over forty hours worked per workweek. President Obama’s proposed changes could affect many American employees who work significant overtime hours. More to come.

Published Article on the Americans with Disabilities Act

Here is an article that I wrote for the South Carolina Bar Labor & Employment Law Section Newsletter on changes to what constitutes a disability under the Americans with Disabilities Act and the ADAAA.

SC Bar Employment & Labor Law Article on Disability Discrimination by Attorney J. Scott Falls of Falls Legal, LLC

SC Bar Employment & Labor Law Article on Changes to the ADAAA

 

Since the passage of the ADA Amendments Act of 2008 (ADAAA), the U.S. Courts of Appeals have been tasked with interpreting the Act without much guidance from its predecessor, the ADA. The Fourth Circuit recently made one such decision in Summers v. Altarum Inst., Corp., No. 13-1645, (4th Cir. Jan. 23, 2014). The case provides substantial guidance as to the application of the ADAAA to temporary disabilities in holding that
an employee’s temporary impairment—in this instance, “broken legs and injured tendons” that rendered the employee “completely immobile for more than seven months”—can constitute a disability under the ADAAA.

Summers, the plaintiff in the case, began working as a senior analyst for Altarum, a government contractor in Alexandria, VA, in July 2011. In his position, Summers was assigned to work for Altarum’s client, the Defense Centers of Excellence for Psychological Health and Traumatic Brain Injury (DCoE). Accordingly, Summers’ job duties required him to travel to the DCoE’s offices in Maryland to conduct statistical research, draft reports and make presentations. Altarum allowed its employees to work remotely, so long as the client for which the employee was working approved the remote work. In Summers’ situation, the DCoE did allow contractors to work remotely from home when they were “putting in extra time” on a given project.

On October 17, 2011, Summers fell and injured himself while exiting a commuter train, resulting in a fracture and meniscus tendon tear in his left leg, a ruptured patellar tendon in his right leg, and a broken right ankle. After undergoing multiple operations, his physicians advised that he could not put any weight on his left leg for six weeks and estimated that he would not be able to walk normally again for at least seven months.

While in the hospital, Summers contacted Altarum and inquired about short-term disability, as well as the prospect of potentially working remotely from home during his recovery. A human resources representative from Altarum agreed to discuss “accommodations that would allow Summers to return to work” and suggested that Summers take short-term disability and focus on his recovery. Thereafter, Summers sent e-mails to his supervisors at both Alatrum and DCoE seeking advice about how he should plan on returning to work. In his e-mails, Summers proposed a plan allowing him to take a few weeks of short-term disability, followed by a period of part-time remote work, with his full return to work following thereafter. Despite the company’s prior agreement to open discussions about a reasonable accommodation, it nevertheless refused to follow through in participating in any form of discussions or negotiations as to Summers’ proposed gradual return plan. To the contrary, Altarum terminated Summers on December 1, 2011 “in order to place another analyst in his role at DCoE.” Perhaps unsurprisingly, litigation followed.

Summers filed suit in federal court alleging failure to accommodate and disability discrimination. In response, Altarum filed a motion to dismiss wherein it argued that, while Summers was physically impaired, he was not a “qualified person with a disability” under the Act. Therefore, Altarum argued, he was not entitled to any of the protections afforded to disabled individuals under the Act. The district court agreed with Altarum and held that a “temporary condition, even up to a year, does not fall within the purview of the Act” and, accordingly, that Summers was not a disabled individual under the Act.

This appeal followed and the Fourth Circuit reversed, holding that a temporary impairment could in fact qualify as a disability under the ADAAA if it was “sufficiently severe.” The Fourth Circuit held that Summers’ temporary impairment met this standard. In reaching its decision, the court noted that the ADAAA was enacted for the purpose of broadening the definition of disability “[i]n response to a series of Supreme Court decisions that Congress believed improperly restricted the scope of the ADA.” The Fourth Circuit emphasized that Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002)—wherein the Supreme Court suggested that a temporary impairment could not qualify as a disability under the ADA—was one such case that “Congress sought to override” with the ADAAA. The court further noted that the EEOC’s regulations on the ADAAA “expressly provide that effects of an impairment lasting or expected to last fewer than six months can be substantially limiting for purposes of proving an actual disability.” Accordingly, the Fourth Circuit reasoned, while the district court’s analysis was “an entirely reasonable interpretation of Toyota and its progeny,” the district court was nevertheless relying on bad law under the ADAAA. The Fourth Circuit acknowledged that it was entering unchartered territory as it was “the first appellate court to apply the amendment’s expanded definition of ‘disability.’” Not to fret, the court noted that the “absence of appellate precedent presents no difficulty in this case: Summers has unquestionably alleged a ‘disability’ under the ADAAA sufficiently plausible to survive a Rule 12(b)(6) motion.”

The court further critiqued the district court’s ruling by stating that the lower court not only erred in relying upon pre-ADAAA cases, “but also in misapplying the ADA disability analysis” used under both the ADAAA and the ADA. Specifically, the Fourth Circuit held that the district court incorrectly “reasoned that, because Summers could have worked with a wheelchair, he must not have been disabled.” The Fourth Circuit disagreed with the lower court’s conclusion on this point by stating that “[t]his inverts the appropriate inquiry” as a court must first establish whether an employee is disabled before determining whether the employee is capable of working with or without a reasonable accommodation. In essence, the Fourth Circuit held that the district court put the cart before the horse. The court concluded that the district court’s entire analysis was erroneous, pointing out that “[i]f the fact that a person could work with the help of a wheelchair meant that he was not disabled under the Act, the ADA would be eviscerated.”

The Summers decision marks the first instance in which a federal appellate court has applied the ADAAA’s expanded definition of disability in terms of duration. The case also marks the first time that a circuit court has conducted an in-depth analysis of Congress’ intent behind enacting the ADAAA. The court’s decision provides a detailed examination of the broadened meaning of disability under the ADAAA in contrast with the previous more limited definition under the ADA. Further, the Fourth Circuit’s analysis declares in no uncertain terms that an employee suffering from a temporary impairment that is “sufficiently severe” can be covered by the expanded definition of disability under the ADAAA and, accordingly, fall under the protections afforded to such individuals under the Act. This case may also have significant impacts on temporary, but sufficiently severe, pregnancy-related complications, triggering a duty to accommodate pregnant employees under the ADAAA.

FMLA Article by Attorney J. Scott Falls Published in South Carolina Lawyer Magazine

Attorney J. Scott Falls and summer law clerk/law student Emily Nellermoe’s article on the mistakes employers make in assessing FMLA leave has been selected for publication by the South Carolina Lawyer magazine. It was published as the cover story of South Carolina Lawyer in the January 2014 edition. Employees who work for employers with more than 50 employees should read the article to understand their rights under the FMLA. If you have an FMLA question or concern, please contact us. Click on the link above to read the article.

NAVIGATING THE FMLA MINEFIELD:

Seven Common Mistakes Employers Make

Scott Falls, Esquire

Emily M. Nellermoe, J.D. Candidate

July 2013

The Family and Medical Leave Act of 1993 (“FMLA”) provides up to 12 weeks of unpaid leave to an eligible employee for his or her own serious health condition or the serious health condition or military service of a family member.[i] The FMLA generally applies to: (1) employers who employ 50 or more employees in 20 or more workweeks in the current or proceeding calendar year; (2) all public employers;[ii] and (3) all private elementary and secondary schools.[iii] To be eligible for FMLA benefits, an employee must: (1) have worked for a covered employer for a total of at least 12 months; (2) have worked at least 1,250 hours over the previous 12 months; and (3) work at a location where at least 50 employees are employed by the employer within 75 miles of the worksite where the employee requesting leave is employed.[iv]

The FMLA was created in order to help workers “balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity.”[v] Although the legislation is focused on employees, employers can also reap the benefits of increased productivity and employee loyalty that comes from creating “stable workplace relationships.”[vi]

Like every piece of legislation, the FMLA comes with its own set of challenges, generating confusion among employers, employees, and attorneys alike. First, the Act can be more technical than its employment law brethren (Title VII, ADEA, ADA, etc.). The FMLA places hefty consequences on employers who do not comply (liquidated monetary damages, attorney’s fees, equitable relief, etc.).[vii] Additionally, Congress made substantial amendments to related regulations as recently as 2009 and FMLA case law is still evolving in several areas. The following list highlights seven of the most prevalent FMLA pitfalls in no particular order.

 

 

Determining Eligibility

Calculating the number of employees in order to determine FMLA eligibility can become quite tedious. The following types of employers should pay close attention to the eligibility rules set forth by the Secretary of Labor:

  • Employers who employ or station workers internationally.[viii]
  • Employers with a fluctuating payroll, i.e. those who hire seasonally.[ix]
  • Employers who downsize to fewer than 50 workers.[x]
  • Employers who employ workers with no fixed worksite.[xi]
  • Airlines (thanks to the brand-new Airline Flight Crew Technical Corrections Act of 2013).[xii]

It is not wise for employers to try and weasel their way out of FMLA compliance; the FMLA specifically prohibits manipulating the number of employees for purposes of avoiding FMLA eligibility (e.g. transferring employees between worksites in order to keep employment below the 50-employee threshold).[xiii] According to a D.O.L.-commissioned study, 34.6% of all worksites are large enough to have covered employees.[xiv] Of course, the D.O.L. encourages employers of all sizes to adopt their own related policies and expand on those provided in the FMLA.

Failure to Meet FMLA Notice Requirements

It is never the employee’s responsibility to request FMLA leave; if an employee notifies the employer that she is taking time off for an illness, it becomes the employer’s responsibility to inform her of her rights in accordance with all of the notice requirements set forth under the statute.[xv] An employer may be equitably estopped from challenging an employee’s FMLA eligibility at trial if an “inadequate notice effectively interfered with plaintiff’s statutory rights.”[xvi]

Furthermore, it is the burden of the employer to determine which situations could be FMLA-related, especially when an employee provides minimal information. According to DOL guidelines, an employee need only provide “sufficient information” to put an employer on notice of potential FMLA-qualifying leave; the employee is not required to specifically reference the FMLA or use any “magic words.”

Consider the Third Circuit case Lichtenstein v. University of Pittsburgh Medical Center; here, an employee left her supervisor a voicemail stating the following: “[c]urrently in the emergency room . . . my mother has been brought into the hospital via ambulance, and I am unable to work today.” The employee was terminated four days later for excessive absences; she countered by suing for interference with her FMLA rights. The court found that the employee had given her supervisor enough information for him to conclude that FMLA leave may be at issue and therefore created an obligation to find out additional information.[xvii]

If the employer is unsure whether a situation involves the FMLA, it should follow up with the employee. Employers’ failure to give adequate and proper notice could result in liability for compensation of benefits or other monetary losses and/or equitable relief (e.g. reinstatement, promotion, etc).[xviii] To be safe, employers should utilize the forms available on the D.O.L.’s website.[xix]

An employer has five business days from the time it acquires knowledge of an employee’s qualifying situation to provide that employee with three important notifications:

  1. Eligibility Notice (can be provided verbally or in writing): states whether the employee is eligible to take FMLA leave. If she is not eligible, the notice must state at least one reason why.[xx]
  2. Rights & Responsibilities Notice (must be provided in writing): details “specific expectations and obligations of the employee” and explains “any consequences of a failure to meet these obligations,”[xxi] including:
    1. Requests for medical or qualifying exigency certification (the D.O.L. has various certification forms available online; look for the “WH-380” series).[xxii]
    2. The employee’s right to maintenance of benefits during FMLA leave and restoration to the same or equivalent job upon return.
    3. Whether the employer will require a fitness-for-duty certification when the employee returns.
  3. Designation Notice (must be provided in writing): notifies the employee as to whether her time out will be counted against her FMLA leave entitlement.[xxiii]

As a final piece of notice-related advice, it is important that any discussions regarding an employee’s FMLA leave are recorded in writing; this helps employers maintain compliance with federal and internal guidelines.

Failing to Follow FMLA Requirements Regarding Employee Medical Certifications

Prior to Leave:

An employee is never required to provide his employer with extensive medical records. However, the employer does have the right to request a Medical Certification (to be completed by the treating physician) that sets forth sufficient medical facts to establish the existence of a serious health condition. Any medical records outside the scope of the medical certification form are off limits to employers.[xxiv] Additionally, in order to comply with HIPAA privacy laws, the employer representative contacting the employee’s physician must under no circumstances be that employee’s direct supervisor; only an HR professional, a leave administrator, or a management official should have contact of this kind.[xxv]

If an employer has suspicions about the duration or appropriateness of leave, it may require a second (or third) opinion for initial certification purposes;[xxvi] it can also request a re-certification at a later date.

After Leave:

Employers have the right to request a Fitness-For-Duty Certification (“FFDC”) when an employee returns from FMLA leave. This form must be signed by the employee’s physician and certify that the employee is capable of returning to work.[xxvii] The FFDC may only address the specific medical condition for which the employee took the leave. An employer may also require that the certification specifically state whether the employee has the ability to perform essential functions of the job (in order to require this, the employer must have provided the worker with a list of essential functions prior to delivery of the Designation Notice). While an employer has the right to contact the employee’s physician for authentication or clarification of the FFDC, the employer may not delay the employee’s return to work while contact with the physician is being made.[xxviii]

Not taking an Employee’s Medical Condition Seriously

Many employers are naturally concerned about the potential for added administrative burdens and lost productivity when a worker tries to take FMLA leave. However, being dismissive or doubtful of an employee’s valid medical condition is a dangerous path for employers to tread. So, what types of medical conditions or treatments entitle an employee to exercise their FMLA rights?

What is FMLA-eligible:

In order to take FMLA leave for a “serious health condition,” an employee must show that his illness, injury, impairment or physical or mental condition (or that of a family member’s) . . .

  • Involves inpatient care, i.e. “an overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity”[xxix]; or
  • Involves continuing treatment by a healthcare provider, i.e. determining if a health condition exists, evaluating a condition, or a regimen of treatment including “a course of prescription medication” or “therapy requiring special equipment”[xxx]; and
  • That results in a “period of incapacity of more than three consecutive, full calendar days,” defined as the “inability to work, attend school or perform other regular daily activities.”[xxxi]

What is not FMLA-eligible:

  • The common cold, the flu, an upset stomach, non-migraine headaches, routine dental or orthodontia problems, etc.[xxxii]
  • Routine physical, optical, and dental examinations.[xxxiii]
  • Any activities that can be “initiated without a visit to a health care provider” are not sufficient “to constitute a regimen of continuing treatment” by themselves. For example, a continuous regimen of taking of over-the-counter medications would not qualify.[xxxiv]

 

Tricky areas:

  • Cosmetic/Plastic Surgery: Voluntary cosmetic/plastic surgeries (including dermatological and dental procedures) generally do not qualify unless (1) inpatient hospital care is required, or (2) other serious complications arise from such procedures.[xxxv] Restorative dental or plastic surgery after an injury or after the removal of cancerous growth would qualify as long as inpatient care or ongoing treatment is necessary.
  • Allergies or Mental Illness (e.g. severe depression): these may be “serious medical conditions” only if inpatient care or ongoing treatment is also necessary.[xxxvi] It is a good idea to request a Medical Certification before granting leave for these conditions.

If an employer has reason to believe that an employee is exaggerating or faking a medical condition, it should not deny him or her FMLA leave without further investigation.[xxxvii] There are other ways to weed out suspicious claims (medical certification and re-certification, second medical opinions, asking pointed up-front questions, etc.) that don’t involve false accusations or potential FMLA interference lawsuits.

Contacting employees Too Often During FMLA Leave: The “Chilling” Effect

Employers are naturally and understandably curious about how long an employee’s FMLA leave will last. Employers do have the right to know this information, but they must be careful not to cross the line into harassing behavior.

In 2011, the Western District Court of Arkansas decided that frequent contact by an employer during an employee’s leave could constitute FMLA interference. In the case, the employer (specifically, the plaintiff’s immediate supervisor) contacted the employee weekly while she was recovering from back surgery. Because of the nature and frequency of the calls, the employee claimed that she felt pressured to cut her leave short; the court agreed that the employer’s actions had a discouraging or “chilling effect” on the duration of the plaintiff’s leave.[xxxviii]

The FMLA provides procedures for contacting employees while they are on leave. Under the Act, “an employer may require an employee on FMLA leave to report periodically on the employee’s status and intent to return to work.”[xxxix] However, this contact must not be arbitrarily applied or discriminatory. Further, in determining the propriety of such contact, “all of the relevant facts and circumstances” of each individual case must be considered. If the employee finds out that she needs more time than originally anticipated, the employer may require the employee to provide “reasonable notice (i.e., within two business days) of the changed circumstances.”[xl]

Employers can shield themselves from an FMLA interference claim by providing employees with clear, written instructions for periodic reporting during leave. Make sure that the level of contact is appropriate given each employee’s FMLA-eligible situation and his or her position at work. Also, employers must ensure that anyone in contact with an FMLA employee avoids language that could potentially pressure the employee to cut his leave short or cause him to fear for his job security.

Requiring Employees on FMLA Leave to Work From Home

Employers often lose valuable workers during FMLA leave; to soften the blow, employees are sometimes asked to work from home. This situation can be tricky, causing employers to walk a fine line between productivity and FMLA interference.

In Reilly v. Revlon, a Revlon employee on FMLA leave was given a company laptop, cell phone, and internet access so she could work from home (this entailed responding to calls from her temporary replacement, answering coworkers’ questions, etc.); the plaintiff complained that this request interfered with her protected time off. The Court did not sympathize with this specific situation, stating that “fielding occasional calls about one’s job while on leave is a professional courtesy that does not abrogate or interfere with the exercise of an employee’s FMLA rights. When limited to the scope of passing on institutional knowledge to new staff, or providing closure on completed assignments, employers do not violate the FMLA by making such calls.”[xli] Similarly, the Eastern District Court of Michigan found that calls “regarding documents plaintiff had worked on as well as where those documents were located” did not constitute FMLA interference.[xlii]

Because the case law is still developing, employers should be cautious when assigning work to employees during their FMLA leave. While minimal assignments and questions that would otherwise burden the company seem to be permissible, a jury could find that more substantial projects (e.g. training, data entry, etc.) constitute interference. Employers should provide specific written instructions to an FMLA employee stating that he is not expected to do any work other than what could be deemed to be “professional courtesy” and stick by this statement. If the employee wants to complete projects out of his or her own volition, that is a personal choice. Employers should make an effort to obtain a written statement or waiver from the employee in such cases.

 

 

Taking Adverse Action Against employees for taking FMLA leave

Taking adverse, tangible employment action (demotion, termination, failing to promote, reassignment with significantly different responsibilities, benefit reduction, etc.)[xliii] against employees upon their return from FMLA leave is retaliation, and is the number one cause of all FMLA complaints.[xliv] Employers are required to restore eligible employees to the same or equivalent position with equivalent pay, benefits, and working conditions upon their return from leave.[xlv]

If an employee has been designated as a “key employee” in their Rights & Responsibilities Notice, equivalent reinstatement may not be mandatory. A “key employee” is an FMLA-eligible worker who is salaried and “is among the highest paid 10 percent of the employees employed by the employer within 75 miles of the facility at which the employee is employed.”[xlvi] In order to deny a key employee equivalent reinstatement, the employer must show that her absence resulted in a “substantial and grievous economic injury” to the company.[xlvii]

What if the employer has a legitimate, nondiscriminatory reason to terminate an employee that is unrelated to the exercise of FMLA rights?

If an employer decides to terminate an employee who has taken FMLA leave, it should proceed with caution. Under the McDonnell-Douglas burden-shifting analysis, the employer bears the burden of demonstrating that an employee would have been laid off or terminated regardless of that employee’s FMLA status.[xlviii] Ultimately, the question of whether the employer had a legitimate reason for employee termination unrelated to FMLA leave is a question of fact. Juries have been known to find that “downsizing” or “restructuring” is actually nothing more than pretext for giving employees on FMLA leave the boot.

To help an employer counter an allegation of pretext and prove that it had a legitimate, nondiscriminatory reason for firing an employee, detailed records of employee performance showing unsatisfactory ratings or disciplinary infractions can be presented. If the situation of legitimate company downsizing arises, any discussions of budget cuts and restructuring should be preserved in writing to show that the termination in question would have been made regardless of any FMLA factors.

Conclusion

Taking the time to understand the FMLA is no easy task, but having a working knowledge of each party’s obligations before a dispute arises can prevent future headaches and litigation.

 

[i] 29 U.S.C. § 2612(a)(1); 29 C.F.R. § 825.112(a).

[ii] 29 U.S.C. § 2611(4); 29 C.F.R. §§ 825.104-825.109.

[iii] Coleman v. Court of Appeals, __ U.S. __, 132 S.Ct. 1327, 182 L. Ed. 2d 296 (2012).

[iv] 29 U.S.C. § 2611(2); 29 C.F.R. § 825.111.

[v] 29 C.F.R. § 825.101(a).

[vi] 29 C.F.R. § 825.101(c).

[vii] 29 C.F.R. § 825.400(c).

[viii] 29 C.F.R. § 825.105(b).

[ix] 29 C.F.R. § 825.105(f).

[x] 29 C.F.R. § 825.105(f).

[xi] 29 C.F.R. § 825.111(a)(2).

[xii] 29 U.S.C825.311(a).

[xii] Jacob A. Klerman, et. al., U.S. Department of Labor, DOLF 109630906: Family and Medical Leave in 2012: Technical Report (2013), available at http://www.dol.gov/asp/evaluation/fmla/FMLATechnicalReport.pdf.

[xii] U.S. Department of Labor, Family and Medical Leave Act regulations: A report on the Department of Labor’s request for information. 72 Fed. Reg. 35550-35638 (June 28, 2007).

[xiii] 29 C.F.R. § 825.311(a).

[xiv] Jacob A. Klerman, et. al., U.S. Department of Labor, DOLF 109630906: Family and Medical Leave in 2012: Technical Report (2013), available at http://www.dol.gov/asp/evaluation/fmla/FMLATechnicalReport.pdf.

[xv] 29 C.F.R. § 825.300(b).

[xvi] Fry v. First Fid. Bancorporation, CIV. A. 95-6019, 1996 WL 36910 (E.D. Pa. Jan. 30, 1996).

[xvii] Lichtenstein v. University of Pittsburgh Medical Center, 691 F. 3d 294 (3rd Cir. 2012).

[xviii] 29 C.F.R. § 825.300(d).

[xix] U.S. Department of Labor, Wage and Hour Division, Public Forms, available at http://www.dol.gov/whd/forms/WH-381.pdf and http://www.dol.gov/whd/forms/WH-382.pdf (last visited July 29, 2013).

[xx] 29 C.F.R. § 825.300(b).

[xxi] 29 C.F.R. § 825.300(c).

[xxii] U.S. Department of Labor, Wage and Hour Division, Public Forms, available at http://www.dol.gov/whd/forms (last visited July 29, 2013).

[xxiii] 825.300(d)(1)(4).

[xxiv] 29 C.F.R. § 825.306.

[xxv] 29 C.F.R. § 825.307(a).

[xxvi] 29 C.F.R. § 825.307.

[xxvii] 29 C.F.R. § 825.312.

[xxviii] 29 C.F.R. §825.312(c).

[xxix] 29 C.F.R. § 825.113(b).

[xxx] 29 C.F.R. § 825.113(a).

[xxxi] 29 C.F.R. § 825.113(b).

[xxxii] 29 C.F.R. § 825.113(d).

[xxxiii] 29 C.F.R. § 825.113(c).

[xxxiv] 29 C.F.R. 825.113(c).

[xxxv] 29 C.F.R. § 825.113(d).

[xxxvi] 29 C.F.R. § 825.113(d).

[xxxvii] See Navarro v. Pfizer Corp., 261 F.3d 90, 105 (1st Cir. 2001).

[xxxviii] Terwilliger v. Howard Mem. Hosp., 770 F. Supp. 2d 980 (W.D. Ark. 2011).

[xxxix] 29 C.F.R. § 825.311(a)

[xl] 29 C.F.R. § 825.311(c).

[xli] Reilly v. Revlon, Inc., 620 F. Supp. 2d 524, 537 (S.D.N.Y. 2009).

[xlii] Kesler v. Barris, Sott, Denn & Driker, PLLC, 482 F. Supp. 2d 886, 910-11 (E.D. Mich. 2007).

[xliii] Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761 (1998); see also EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (June 18, 1999) available at http://eeoc.gov/policy/docs/harassment.

[xliv] U.S. Department of Labor, Wage and Hour Division, 2008 Statistics Fact Sheet, available at http://www.dol.gov/whd/statistics/2008FiscalYear.htm (last visited July 29, 2013).

[xlv] 29 U.S.C. § 2612(c).

[xlvi] 29 U.S.C. § 2614(b)(2); 29 C.F.R. § 825.217(a).

[xlvii] 29 U.S.C. § 2614(b)(1); 29 C.F.R. § 825.216(c).

[xlviii] McDonnell Douglas Corp. v. Green, 93 S.Ct. 1817 (1973).

Pregnancy Discrimination in the Workplace

 

Given the frequency of women who chose to start a family while maintaining employment, it can be hard to believe that pregnancy discrimination still exists. Despite the reality of modern workplaces, discrimination against and harassment of expectant mothers actually occurs all the time. Fortunately, there are federal and state laws in place to protect women from such workplace behavior.

FEDERAL LAW

In 1978, Congress amended the definition of gender discrimination in Title VII by adding the Pregnancy Discrimination Act, which prohibits discrimination because of pregnancy, childbirth, or related medical conditions in workplaces that employee 15 or more workers (Pub. L. No. 95-555, 92 Stat. 2076 (1978), amending 42 U.S.C. § 2000e-(k)). The Act states that an employer is prohibited from terminating or refusing to hire/promote a woman on the basis of her pregnancy. Employers cannot discriminatorily assign or re-assign pregnant women to unfavorable positions, take away their benefits, or require mandatory leave periods.

Pregnancy by itself is not a disability because it is not an impairment (unless a related medical condition develops, e.g. gestational diabetes or another ADA-eligible disability). However, a pregnant woman must be treated the same way as other similarly situated sick or temporarily disabled workers; this means that if disabled or sick workers are entitled to receive reasonable accommodations, alternative assignments, or paid/unpaid leave, pregnant women are entitled to as well.

DISCRIMINATION IN HIRING

Employers cannot discriminate against job candidates during an interview or job placement process because they are pregnant. In addition, any gender-specific interview questions, including those related to childbearing or motherhood, are prohibited (EEOC Sex Discrimination Guidelines, 29 C.F.R. § 1604.7 (1983)).   In the case King v. Trans World Airlines, Inc., 738 F.2d 255 (8th Cir. 1984), Ms. King, a mother of four, was being interviewed for an entry-level position with the kitchen department at Trans World Airlines (TWA). During the interview, Ms. King’s interviewer asked her questions about her recent pregnancy, her marital status, the number of children she had, whether these children were “illegitimate,” and her plans for future childbearing. After this process, TWA informed Ms. King that there were no openings in the kitchen department; however, within that same month, TWA proceeded to hire at least ten people for the exact same position. The Court ordered the employer to grant Ms. King injunctive relief (protection against future discrimination and another chance at the interview).

WORKPLACE HARASSMENT

Pregnancy harassment can be physical, verbal, or written and involve offensive or unwelcome comments, jokes, gestures, etc. related to a woman’s pregnancy. Harassment in the workplace becomes unlawful when such acts become so frequent and/or severe that both a reasonable person (objective test) and the employee herself (subjective test) could perceive that a hostile or abusive work environment has been created (see Harris v. Forklift Systems Inc., 114 S.Ct. 367 (1993)). Anyone, including supervisors, coworkers, and customers, can potentially create a hostile work environment.

DISCRIMINATION UPON RETURN FROM MATERNITY LEAVE

Women who qualify for and take FMLA maternity leave must be reinstated to the same position with the same responsibilities that they had prior to taking leave. Employees and employers who aren’t covered under the FMLA must still abide by the PDA’s rule of equivalent disability treatment discussed above. In Garner v. Wal-Mart Stores, 807 F. 2d 1536 (11th Cir. 1987), a Wal-Mart department manager, Ms. Garner, took approved maternity leave. Upon her return, Ms. Garner was given the new job title of “floater,” which had far fewer responsibilities than her previous position. Especially in light of the fact that Wal-Mart had once before held open a male department manager’s position for him while he took sick leave, the 11th Circuit held that Ms. Garner had established Title VII sex discrimination because she hadn’t been given her old position back; the court awarded Ms. Garner nominal damages.

PROVING DISCRIMINATION

In order for a woman to show gender discrimination on the basis of pregnancy, she must demonstrate the traditional elements of prima facie Title VII sex discrimination: (1) that she is a member of a protected class [pregnant women]; (2) that she was performing her job satisfactorily at the time of her discharge or demotion; (3) that she was subjected to adverse employment action; and (4) that she was either replaced or treated differently than persons outside of the protected class. If the employee can show these four elements, then, according to the McDonnell-Douglas burden-shifting analysis, the employer must demonstrate that the reason for the adverse employment action was unrelated to gender/pregnancy. The employee can attempt to rebut this by showing that the reason provided by the employer was pretext (a false excuse or cover-up) for a discriminatory reason.

TAKING ACTION

In 2011 alone, pregnant women who filed charges with the EEOC or a related local employment agency (almost 5,800 claims) received $17.2 million in monetary benefits (this figure does not include damages obtained in litigation!). If you feel you have been discriminated against for the reasons discussed above, make an internal complaint with your employer, file a charge with the EEOC, and contact an attorney.

Supreme Court Revisits Retaliation

Retaliation claims under Title VII are one of the most frequently filed types of claims at the EEOC (31,000 in 2012), second only to claims of racial discrimination. A new ruling by the Supreme Court will likely curb these numbers sharply. The decision in University of Texas Medical Center v. Nassar, one of two employer-friendly opinions issued on the same day, is bad news for employees who feel they have been retaliated against for exercising their Title VII rights.

Title VII provides, “it shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). An unlawful employment practice is “established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” 42 U.S.C. § 2000e-2(m).

The plaintiff in the Nassar case was Dr. Naiel Nassar, a medical doctor of Middle Eastern descent. He alleged that his superior, Dr. Beth Levine, discriminated against him on the basis of his religion and ethnic heritage. After Nassar reported the behavior, his employer (University of Texas) withdrew a job offer it had made some time earlier. Nassar sued UT for harassment and retaliation, arguing that UT retaliated against his report of workplace discrimination by denying him a job it had previously offered him. Nassar’s case hinged on the reason behind UT’s decision to pull the plug on his job offer; he argued that an employer can be held liable for “retaliation” as long as retaliating was one of several motivating factors (the “motivating factor standard”) for an employer’s adverse employment action (here, the revocation of a job offer). UT argued that the standard for employer liability is higher (the “but-for standard,” meaning the plaintiff must show that the adverse employment action would not have occurred but-for the defendant’s conduct, i.e. the job offer would have never been revoked if Nassar had never reported Dr. Levine to UT for discrimination).

The Supreme Court agreed with UT. In a 5-4 decision written by Justice Kennedy, the Court required the employee-claimant to show that his protected activity (reporting a Title VII discrimination issue; see 42 U.S.C. § 2000e-3(a)) was the “but-for cause” of the adverse employment action (termination, not getting hired, demotion, pay decrease, etc.) taken against him. The Court made this determination after comparing and contrasted the relevant portions of Title VII to similar pieces of legislation, interpreting statute language and construction, inferring Congress’s intent, and stating the need to prevent frivolous and burdensome lawsuits in our legal system.   Prior to this, some lower courts had been on Nassar’s side, holding that an employer who made an adverse employment action could be held liable for retaliation even if there were other “valid” reasons for taking that action; now, the employee bears a bigger burden, and must show that the adverse employment action was taken for the primary purpose of retaliation.

What does Nassar mean for employees?

Unfortunately, this ruling has limited the scope of employees’ Title VII rights and makes it harder for victims of retaliation to sue by providing an easy defense for employers.  An employer can escape liability simply by showing that other reasons existed for the adverse employment action and that such action would have been taken regardless of any Title VII discrimination complaints made by the employee.  In her dissent, Justice Ginsburg laments that the Court’s decision has “undermined” the purpose of Title VII retaliation claims by encouraging employees to remain silent when they are victims of or witnesses to acts of discrimination in the workplace. We will have to wait and see if Congress revises Title VII or chooses to accept the majority’s interpretation.

Supreme Court Weighs in on Who is Considered a Supervisor for Purposes of Vicarious Liability under Title VII

Last week, the Supreme Court delivered an opinion in Vance v. Ball State University, answering the question of who qualifies as a “supervisor” under Title VII; their decision is going to have a big impact on dozens of active employment law cases.

Title VII of the Civil Rights Act provides that it is “an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e—(2)(a)(1).

There are different levels of employer liability depending on who the harasser is. If the harasser is a supervisor, the employer is vicariously (i.e., automatically) liable under Title VII. The Equal Opportunity Commission and several lower courts have butted heads over the meaning of “supervisor.” The EEOC has maintained that a supervisor is anyone with “the ability to exercise significant direction over another’s daily work” while the courts have applied a more stringent standard (the ability of the person to undertake “tangible employment actions”, discussed below).

In this case, Maetta Vance, an African-American woman, claimed that Saundra Davis, her white co-worker, was creating a racially hostile work environment in violation of Title VII. Vance (a “catering assistant”) claimed that Davis (a “catering specialist”) was her supervisor, entitling her to Title VII protections; her employer, Ball State University, contended that Davis was not a supervisor because she did not have the power to “hire, fire, demote, promote, transfer, or discipline Vance.”

In a 5-4 decision delivered by Justice Alito, the Court sided with Ball State, stating that a “supervisor” is someone who has the ability to take “tangible employment actions” (i.e., an act which causes “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits”). This ruling rejects Vance’s and the EEOC’s “nebulous” definition of supervisor, saying it creates undue confusion among judges and jurors. Vance lost for two reasons: (1) Davis was not a “supervisor” because she did not have the power to take tangible employment actions against Vance; and (2) Vance was not able to show that Ball State was negligent or unreasonable in how they handled the situation.

What does Ball State mean for employees?

Unfortunately, this decision has limited the scope of employees’ Title VII rights and makes it harder for victims of harassment to sue right away. However, if a non-supervisor coworker is harassing you (see these blog posts for discussions of what “harassment” really is), your employer still has obligations to fulfill. Because harassment from any source can contribute to a volatile work environment, you can still complain to your employer, who then must take action to prevent the harassment from occurring again. If your employer is negligent in taking action and the harassment continues, you may have a valid Title VII claim. As the Court stated, “an employer will always be liable when its negligence leads to the creation or continuation of a hostile work environment.”