6th Circuit holds that temporal proximity alone is sufficient to show a causal nexus in retaliation cases

It has been generally understood that in retaliation cases, temporal proximity alone does not establish the required causal connection between the protected activity and the adverse employment action. In Mickey v. Zeidler Tool & Die Co., decided today, the 6th Circuit has held that where an adverse employment action occurs very close in time after an employer learns of a protected activity, such temporal proximity between events is significant enough to constitute evidence of a causal connection for the purposes of satisfying a prima facie case of retaliation.

Charles Mickey, age 67, was a 33-year employee of Zeidler Tool & Die. After the company's owner, Harold DeForge, cut his responsibilities and pay following Mickey's refusal to retire, Mickey filed an age discrimination charge with the EEOC. DeForge first learned of Mickey's EEOC charge when he arrived at the company on the morning of October 19, 2004. When Mickey arrived at 7:30 that same morning, DeForge followed him into his office and immediately fired him. The district court dismissed Mickey's retaliation claim on summary judgment, relying on the proposition that temporal proximity, without more, is insufficient for a reasonable juror to concluded that DeForge would not have terminated Mickey but for the EEOC charge.

The 6th Circuit reversed that dismissal, ruling that where an adverse employment action occurs very close in time after an employer learns of a protected activity, such temporal proximity, in and of itself, is significant to constitute evidence of a causal nexus. Contrarily, where some time elapses between when the employer learns of the protected activity and the adverse action, the employee must present other evidence of retaliatory conduct to establish the required causality. The Court explained its rationale for this distinction:

[If] an employer immediately retaliates against an employee upon learning of his protected activity, the employee would be unable to couple temporal proximity with any such other evidence of retaliation because the two actions happened consecutively, and little other than the protected activity could motivate the retaliation. Thus, employers who retaliate swiftly and immediately upon learning of protected activity would ironically have a stronger defense than those who delay in taking adverse retaliatory action....

In those limited number of cases–like the one at bar–where an employer fires an employee immediately after learning of a protected activity, we can infer a causal connection between the two actions, even if Mickey had not presented other evidence of retaliation.

Hedging its bets, the Court continued, and further reasoned that even if the nearly instantaneous temporal proximity was insufficient to establish the nexus, Mickey's alleged disparate treatment before DeForge learned of the EEOC charge also was sufficient evidence of a retaliatory motive.

A strong concurring opinion took the majority to task for its fall-back position:

"Retaliate," according to Merriam-Webster's Online Dictionary, available at http://www.merriam-webster.com/dictionary/retaliate (last visited January 24, 2008), is either a transitive verb meaning "to repay (as an injury) in kind," or an intransitive verb meaning "to return like for like; especially: to get revenge." One cannot repay or act in response to or get revenge for something that has not yet happened. No reasonable juror could conclude that DeForge intended to retaliate against Mickey for his filing the EEOC charge before he was aware that Mickey had done so, let alone before Mickey had undertaken the protected activity in the first place, and therefore, DeForge's actions prior to Mickey's filing of the EEOC charge cannot be evidence of retaliation for that protected activity. This evidence is immaterial to Mickey's retaliation claim and cannot be used to support it.

The impact of this decision will be fought over the meaning of the phrase "very close in time." The majority is vague in its understanding of that phrase. Employers will push very hard for Judge Batchelder's concurring interpretation: "[I]n a case in which the employer's learning of the protected activity is so closely followed by the employer's taking of an adverse action that the two are virtually contemporaneous — exactly the circumstances in this case — the temporal proximity between the two is alone sufficient to establish the causal connection necessary for the fourth prong of a prima facie case of retaliation." Employees, meanwhile, will push in the opposite direction and attempt to have courts stretch out the timeline.

We will have to wait and see where courts draw the line — minutes, as was the case in Mickey, days, weeks, or longer. It's hard to argue that Mickey presents a unique case, because the termination was a knee-jerk reaction to learning of the EEOC charge. The longer an employer allows an employee to stay on the job, however, the less likely a retaliatory motive exists, unless there is some other evidence of that motive. We will simply to have wait and see how long is too long.

Taking a look at bereavement leave policies

According to a 2007 Bureau of Labor Statistics report, 69% of private workers receive paid funeral leave. Yet, MSNBC.com is questioning whether companies are doing enough for grieving employees. The article suggests that businesses provide longer leaves (anywhere from 5 days up to as long as the employee needs) and including part-time employees. As support, it cites a study by the Grief Recovery Institute, which estimates that U.S. businesses lose more than $100 billion annually because of absenteeism, mistakes, and low productivity from workplace grief.

There is no law that requires a business to provide for bereavement leave. It is a benefit, and entirely up to the employer whether to provide for such leave at all, and if so, for how long, whether it is paid or unpaid, how wide to cast the family net, and whether to require an employee to provide proof of the death. How you choose from this menu of options will all impact employee morale, retention, and maybe productivity (although I question the agenda of the Grief Recovery Institute). As always, when you apply a bereavement leave policy, make sure it applied fairly and equally across the board to avoid any appearance of disparate treatment and a potential discrimination claim.

ADA Restoration Act unnecessarily seeks to broaden the definition of "disability"

An editorial in this morning's New York Times calls for Congress to pass legislation to undo recent Supreme Court precedent limiting the reach of the employment discrimination laws. By way of example, the editorial points to the Fair Pay Restoration Act and the Civil Rights Act of 2008, both of which are currently pending in Congress.

The Americans with Disabilities Restoration Act of 2007 is another currently pending bill in the same vein. It would amend the ADA to:

1. redefine "disability" as a physical or mental impairment, a record of a such impairment, or being regarded as having a such impairment, eliminating the requirement that it substantially limit a major life activity;
2. in determining whether an individual has an impairment, prohibit any consideration of the impact of any mitigating measures the individual may be using or whether any impairment manifestations are episodic, in remission, or latent;
3. consider actions taken because of an individual's use of a mitigating measure to be actions taken on the basis of a disability; and
4. shift the burden of proving that one is a "qualified individual with a disability" from the employee to the employer, as an affirmative defense.

This bill would radically alter the order of proof in ADA cases, and overturn a more than a decade of Supreme Court precedent on the definition of "disability."

George Lenard, at his Employment Blawg, asks the question, Does the ADA Need "Restoration"? George's opinion:

There have been some cases in which the definition of "disability" has been construed too narrowly, preventing individuals with quite substantial impairments from having their day in court. But the definition as it now stands is a sound one, and the Supreme Court cases were correctly decided under this definition.… But vastly more people would be within the "protected class" of individuals with disabilities, so increased litigation would be a given, including not only accommodation cases, but also ordinary disability discrimination claims (e.g., discharges allegedly due to trivial impairments). Even if employers would fare relatively well, litigation costs would rise. This is a legitimate concern.

George is spot on with his take on this bill and its likely effects. Let me add one more thought, that largely the current law takes care any concerns over the perceived narrowness of the definition of "disability." Remember, the ADA does not just protect those who meet the definition of having a disability, but also those who are "regarded as" disabled by their employers. As recently pointed out by the 6th Circuit in Gruener v. The Ohio Casualty Ins. Co.:

The ADA’s regarded-as-disabled definition of disability … protects employees who are "perfectly able" to perform a job, but are "rejected … because of the myths, fears and stereotypes associated with disabilities." Accordingly, it applies when "(1) [an employer] mistakenly believes that [an employee] has a physical impairment that substantially limits one or more major life activities, or (2) [an employer] mistakenly believes that an actual, nonlimiting impairment substantially limits one or more [of an employee's] major life activities." Either application requires that the employer "entertain misperceptions about the [employee]." (quoting (quoting Sutton v. United Air Lines, 527 U.S. 471, 489–90 (1999)).

Indeed, just last week the conservative 4th Circuit decided Wilson v. Phoenix Speciality, upholding a $200,000 verdict in favor of an employee who was regarded as disabled because of his medically controlled Parkinson's disease. The ADA already protects those who need to be protected. Expanding the coverage of those who qualify as truly "disabled" as envisioned by the ADA Restoration Act will only serve to undermine the original spirit of the law, the elimination of the misconceptions and stereotypes about the ability of the disabled to fairly compete for jobs.

President Bush signs bill amending the FMLA

President Bush has signed the National Defense Authorization Act that he had previously vetoed. Its changes to the FMLA go into effect immediately.

As amended by the NDAA, the FMLA now permits a "spouse, son, daughter, parent, or next of kin" to take up to 26 workweeks of leave to care for a "member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness." It also permits an employee to take FMLA leave for "any qualifying exigency ... arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation." The DOL will define "qualifying exigency" in subsequent regulations.

According to the DOL, employers are required to act in good faith in providing FMLA leave under these circumstances while it works to prepare comprehensive guidance on rights and responsibilities under this new legislation.

The Department of Labor's website has available for download the full text of the FMLA, as amended by the NDAA.

Remedial measures do not have to be perfect to win harassment claim

Dan Schwartz at the Connecticut Employment Law Blog posts today about treating harassment complaints seriously and taking appropriate action, but not overreacting.

Coincidentally, I make the same exact point in the February 2008 issue of InsideCounsel, discussing Brenneman v. Famous Dave's of America, a sexual harassment case I originally reported on in November:

The court recognized "a company doesn't have to be perfect," explains Jonathan Hyman, an employment lawyer with Kohrman Jackson & Krantz.

"So if a company gets a complaint of harassment, has an adequate policy, undertakes an investigation ... and then makes what it thinks is a reasoned remedial step to stop the harassment, courts much more often than not aren't going to second-guess what the company does. The remedial measures don’t have to be perfect either; they just have to be reasonable and adequate," he says.

Ohio appellate court tolls noncompete while litigation pending

Homan, Inc. v. A1 AG Services, LLC, decided this week by the 3rd District Court of Appeals, answers the following question: if an employer believes a former employee is violating a noncompetition agreement, but does not seek a preliminary injunction, is the time period in the noncompete agreement nevertheless tolled while the case is litigated?

The basic facts of the case are as follows. Kaiser signed a 3-year, 150 mile noncompetition agreement as a condition of his employment with Homan. In January 2004, Homan filed bankruptcy and either laid off or terminated its employees, including Kaiser. Immediately thereafter, Kaiser and his wife started a new business for the express purpose of competing against Homan. When Homan reminded Kaiser about his noncompete, he stopped working for his new business, but a year later rejoined the business, deciding that 1 year was long enough for him to sit out. Within 3 months, Homan sued to enforce the noncompete. It took nearly 2 years for the trial court to decide in Kaiser's favor.

The appellate court determined that a 2-year noncompete was reasonable, and reverse the trial court's judgment. Notably, the Court found that even though the noncompete had already expired, it was retroactively enforceable against Kaiser:

[A] covenant not to compete may not expire while the enforceability of that contract is being litigated…. [T]he plaintiff "should not be denied the benefit of their bargain simply because the time period specified in the negative covenant all but expired while [the plaintiff] sought to enforce the contract through the court system." … [T]he covenant was not enforced while litigation was pending, leaving the defendant to engage in direct competition with the plaintiff…. [I]f it held that the contract had expired during resolution of the litigation, it would be "sanctioning litigation as a delay tactic. All an individual would have to do would be to contest the negative covenant in court until the restrictive time period elapsed. If this were true, covenants not to compete would be virtually ineffective."

Thus, the Court of Appeals found that the trial court erred in ruling that the noncompete agreement had expired.

This decision completely ignores the practicalities of litigation in noncompete cases. At the outset of the litigation, the former employer has a clear remedy available to prevent a noncompete from expiring and the case becoming moot while the litigation is on-going – a preliminary injunction. A preliminary injunction maintains the status quo until the litigation is over, keeping the contract in force. If Homan was concerned about Kaiser's noncompete agreement expiring during the litigation, Homan should have moved for a preliminary injunction. No one be punished because a former employer sat on its rights and failed to avail itself of this widely recognized remedy. A holding that noncompete agreements are tolled during litigation rewards the former employer that fails to act to protect its rights.

The bottom line, Homan notwithstanding – don't wait to enforce noncompete agreements. Temporary Restraining Orders and Preliminary injunctions are available to halt employees who are violating noncompetes, and should be timely used to enforce the agreement while its merits are litigated.

Congress introduces the Civil Rights Act of 2008

20 Democratic Senators (including Clinton and Obama) have sponsored the Civil Rights Act of 2008. It's basically a laundry list of pro-employee changes to virtually every federal employment statute. For example, it proposes to:

• eliminate damage caps under Title VII and the ADA.
• limit the "bona fide factor other than sex" defense under the Equal Pay Act.
• add compensatory and punitive damages to FLSA claims.
• amend the Federal Arbitration Act to prohibit clauses requiring arbitration of federal statutory claims.
• allow winning plaintiffs to recover expert fees.
• give the NLRB authority to award back pay to undocumented workers.
• require that ADEA disparate impact claims be analyzed the same as Title VII claims.
• condition states' receipts of federal funds on waivers of sovereign immunity under various federal employment statutes.

This bill has zero chance of becoming law under the current administration. It gives insight, however, into the labor and employment platform of whomever becomes the Democratic candidate for President. These changes would potentially be devastating for businesses litigating employment claims, and is one issue to keep in mind as you go the polls now and in November. [Hat tip: Workplace Prof Blog]