Supreme Court issues 2 decisions expanding scope of retaliation claims

Last December, I asked the question, "How far to the right has the Supreme Court swung?" This morning, the U.S. Supreme Court issued 2 decisions that suggest that it might not have gone as far to the right as first thought. Each of today's cases expands the scope of retaliation claims under federal employment discrimination statutes. In each case, the Court went beyond the plain language of the statutes to find a retaliation claim.

In CBOCS West, Inc. v. Humphries, the Court ruled 7-2 (with Justices Thomas and Scalia dissenting) that 42 U.S.C. 1981 permits a claim for retaliation when an employee complains of race discrimination.

In Gomez-Perez v. Potter, the Court ruled 6-3 (with Chief Justice Roberts, and again, Justices Thomas and Scalia, dissenting) that the ADEA prohibits federal employers, as opposed to private employers, from retaliating against employees who file complaints alleging age discrimination.

What is interesting about both of these decisions is that neither section 1981 nor the amendments to the ADEA that impose federal sector liability include the word "retaliate." Nevertheless, the Court has read that word into the meaning of the statutes by finding that "discrimination based on race/age" necessarily encompasses retaliation.

These opinions will have little impact on employers in Ohio. Unless you are the federal government, Gomez-Perez v. Potter will not affect you at all.

CBOCS West, Inc. v. Humphries will have limited practical impact for Ohio employers. Because of this case, it is now clear that an employee can bring a race retaliation claim without first filing a charge of discrimination with the EEOC under Title VII. Of course, this is already the case in Ohio under R.C. 4112.99. Moreover, claims under 42 U.S.C. 1981 are subject to a 4-year statute of limitations, 2 years shorter than the time period an employee has to bring a state law retaliation claim under 4112.99.

What is important to Ohio businesses from these cases is that they continue to demonstrate that the Roberts Court may not be as pro-employer as one might have hoped. Under Chief Justice Roberts, pro-employee decisions are out-pacing pro-employer decisions at a 2-1 clip. Several more employment cases are on the Court's docket, including the important issue of whether Title VII's retaliation provision protects 3rd parties who participate in an internal investigation without a pending EEOC charge. The direction of the Court's employment law pendulum is very much in play, and will continue to swing as these decisions are handed down.

Ohio Supreme Court permits 3rd party discovery by employers in OCRC investigations

Often times, companies have to respond to administrative discrimination complaints in a vacuum. They have a vague understanding of the allegations based on the few sentences in the charge form, and are limited to the information in their own files and records. Companies rarely if ever have access to the OCRC's own materials, and discovery is not part of the process. In State ex rel. Am. Legion Post 25 v. Ohio Civ. Rights Comm., the Ohio Supreme Court opened the door to a whole new world of information to assist employers in defending against charges of discrimination, and held that at an employer's request the Ohio Civil Rights Commission must issue a subpoena during a preliminary investigation of an administrative complaint.

If you have been lucky to have never been part of an OCRC investigation, let me give you a quick summary of the process. Upon receipt of a complaint alleging discriminatory conduct, the Commission conducts a preliminary investigation into the allegations. The Commission's function during this first step is to discover evidence to determine if it is probable that an unlawful discriminatory practice has occurred. If the Commission determines there is no probable cause, it will dismiss the Charge. At that point, the employee has three options: 1) walk away; 2) appeal the dismissal to common pleas court; or 3) file a civil action under 4112.99. On the other hand, if the Commission finds probable cause, it will attempt to eliminate the discriminatory practice through conciliation. If conciliation fails, the Commission will issue a formal complaint prosecuted by the Attorney General's office at a formal hearing.

State ex rel. Am. Legion Post 25 v. Ohio Civ. Rights Comm. concerns the first step in this process -- the preliminary investigation. Carol Van Slyke, the charging party, filed a complaint with the OCRC against the American Legion Post 25 claiming that its executive director had sexually harassed her and fired her in retaliation for complaining about it. When contacted by the commission, the Legion explained that it had fired Van Slyke shortly after receiving an anonymous letter that she was a felony offender. During the investigation, the Legion requested, by letter from its attorney, that the OCRC issue a subpoena on its behalf compelling the production of information about her felony conviction. The Commission refused to issue the requested subpoena. The Commission did, however, during the investigatory phase, issue a subpoena on its own behalf for the same information. Because the information became the Commission's work product, the Legion was not permitted to review it. After the Commission issued a probably cause determination, the Legion filed suit to compel the OCRC to issue the requested subpoena.

In ruling that the Legion had a clear right to the issuance of the requested subpoena, the Court relied upon the plain language of R.C. 4112.04(B)(3)(b), which provides:

Upon written application by a respondent, the commission shall issue subpoenas in its name to the same extent and subject to the same limitations as subpoenas issued by the commission.

This decision provides employers with an important weapon in defending against OCRC complaints. Often times, employers are shooting in the dark responding to administrative charges. This case enables employers to defend charges on a much more level playing field by preventing the OCRC from limiting employer's access to factual information by hiding behind its curtain of agency work product. This tool is important for two reasons. First, and more obviously, it will enable employers to more efficiently gather key information at an earlier stage in the process to help get more charges dismissed as early as possible. Secondly, and perhaps more importantly, better access to information will limit unintentional misstatements by employers that a plaintiff could use against them in subsequent litigation.

No company wants to defend an OCRC charge. State ex rel. Am. Legion Post 25 v. Ohio Civ. Rights Comm., however, makes the process a little more palatable.

What I'm reading this week #32

The post of the week is from HR World, and comes in anticipation of next week's season finale of the best show on TV, Lost: 10 Things Every Manager Should Learn from "LOST".

I've recently discovered the Delaware Employment Law Blog, another excellent employment law resource, which this week gives us some thinking points for what it considers the top 5 wage and hour issues facing employers.

The Labor and Employment Law Blog also writes on a hot topic in wage and hour law, how to properly handle unpaid internships.

Staying on the topic of wage and hour laws, The Business of Management asks if the $100,000-a-year employee really deserves to be paid an overtime premium.

Michael Moore, who recently relaunched his blog as the Pennsylvania Labor & Employment Blog, provides his thoughts on an issue that more and more people may take to heart with gas prices passing $4 a gallon, telecommuting. If I can digress for a minute, when I started law school, I paid $.90 a gallon (now I sound like my grandparents talking about 5 cent movies). Last night, I waiting in a line 3 cars deep across 8 pumps to pay $3.76, which was more than 20 cents lower than any other gas station I've seen.

The Laconic Law Blog has some helpful pointers on properly handling severance pay.

Another recently launched blog, Nolo's Employment Law Blog, reports on the Families and Work Institute's study on work-life issues (such as job flexibility, time off, and health and retirement benefits). Despite all of the ink spilled about the importance of work-life balance to today's employees, the study found that not much has changed in terms of benefits employers have offered in the last 10 years. One clear trend is that employers are shifting more of the cost of these benefits to employees. For example, 16% of employers provide maternity leave with full pay, compared to 27% ten years ago. Also, only 4% of employers pay the full cost of family health coverage, compared to 13% ten years ago.

Finally, the Connecticut Employment Law Blog gives its take on handling anonymous workplace complaints.

Court rules that employee's cancer not sufficiently limiting for ADA protection

Employers often struggle with leaves of absence. The FMLA only requires 12 weeks of unpaid leave for a serious health condition. If, however, an employee has a disability covered by the ADA, an unpaid leave of absence longer than 12 weeks might be required as a reasonable accommodation. Before one can consider whether such an accommodation is reasonable or necessary, one must first address the threshold questions of whether the employee has a legally protected disability. Slane v. MetaMateria Partners, L.L.C., decided this week by the Franklin County Court of Appeals, tries to give us some guidance.

John Slane began working for MetaMaterials in October 2004. In June 2005 he was diagnosed with cancer. (Because he worked for MetaMaterials for less than 1 year, he was not FMLA eligible). He requested a 90-day leave of absence to allow for surgery, recuperation, and radiation treatment. Company policy provided a maximum of 30 days medical leave and 30 days personal leave, for a total of 60 days leave. A letter from the company to Slane dated July 22, 2005, stated that he would need to provide a written release statement from his health care provider upon his return to work.

On July 27, 2005, Slane completed a leave of absence form indicating that he began his leave on July 21, 2005, and expected to return to work October 21, 2005. The leave form was approved for a total of only 60 days leave, and specified that Slane had to provide a health care provider's release upon his return. Under company policy, if Slane did not return to work by September 19, 2005, with a release from his physician, he would be considered to have resigned.

In mid-October 2005, Slane informed his supervisor, Michael Gagel, that he was ready to return to work. Gagel told Slane that he would have to see if there was enough production for Slane to come back. Slane called again about two days later and, at that time, Gagel said that someone would be getting in touch. The next day, Slane tried to fill a prescription and was told at the pharmacy that he had no insurance. Slane called Gagel again, and Gagel told him he was checking on it. A week later, Gagel informed Slane that he did not have a job. Two days later the company confirmed that it had terminated Slane in September 2005 when he failed to return after the expiration of his approved 60-day leave of absence.

The Court found that Slane's claim failed because he did not have a legal disability. Cancer may be a disability, but to qualify as such one must show that it substantially limits a major life activity. The Court found that Slane's temporary physical impairment, albeit serious, did not rise to the level of a legally protected "disability":

Without a doubt, Slane's cancer of the right maxillary sinus was a severe disease or condition that necessitated surgery, removal of much of his right jaw, and radiation treatment. His cancer surgery left him with an "impairment" ... In terms of the duration of his physical impairments, Slane needed approximately 90 days to recuperate from treatment. The surgery left him with some difficulty in pronouncing his "s's" as well as difficulty producing saliva. After recuperating from his treatment, Slane testified that he was able to return to work with only minor limitations. The only permanent limitations were difficulty pronouncing his "s's," the need to clean his nose more frequently, and a dry mouth necessitating the need to drink water on a regular basis. Clearly, Slane presented evidence that he has a physical impairment as that term is used in the statute.

Merely having a physical impairment does not make one disabled for purposes of Ohio's disability discrimination statutes. Slane also needed to demonstrate that his physical impairment substantially limits a major life activity. "Substantially limits," as used under the ADA suggests "considerable" or "to a large degree." ... In terms of major life activities, Slane testified that, by October 2005, he could see, hear, think, climb, grasp, lift, sit, rise, walk, eat, breathe, swallow, brush his teeth, brush his hair, and sleep without difficulty. ... Slane's own testimony belies his claim that his cancer substantially limits his ability to perform the major life activities of speaking, breathing, eating, drinking, or swallowing as he had alleged.

This case leaves a bad taste in my mouth. An employee, suffering from cancer, who had a piece of his jaw replaced with a prosthesis, should be protected as having a "disability." This case would allow a termination of female employee with breast cancer post-mastectomy. That result just doesn't sit right with me. At a minimum, this issue seems like a fact issue a jury should decide, not a legal issue for the court.

If Slane was disabled, the company could have had problems. While it had a clearly defined policy only permitting a 60-day maximum leave of absence, it probably should have held his job for the additional 30 days. The ADA does not require an indefinite leave of absence as a reasonable accommodation, but it does require some leave of absence. Six months is generally considered the outside parameters of what is reasonable. In this case, the company knew of a definite return date, but nevertheless stuck by its written policy of 60 days. That formalism could have gotten the company into trouble for failing to reasonably accommodate Slane's disability. On a jury of 8, at least 6 (if not all 8) would have someone close to them touched by cancer, a calculus that could have spelled doom for the company. The court bailed it out by finding that Slane did not have a disability in the first place.

President signs GINA - genetic information discrimination now unlawful

As expected, this afternoon President Bush signed the Genetic Information Nondiscrimination Act ("GINA") into law.

GINA adds "genetic information" to the list of classes of employees protected by the federal employment discrimination laws. It makes it unlawful for an employer to fail or refuse to hire, or to discharge, any employee, or otherwise to discriminate against any employee with respect to the compensation, terms, conditions, or privileges of employment of the employee, because of genetic information with respect to the employee. "Genetic information" means, with respect to any individual, information about such individual's genetic tests, the genetic tests of family members of such individual, and the manifestation of a disease or disorder in family members of such individual. It does not include information about an individual's age or sex, which of course are already protected classes. As is the case with Title VII, GINA only applies to companies with 15 or more employees.

GINA also makes its unlawful for an employer to request, require, or purchase genetic information about an employee or an employee’s family member except:

1. Where an employer inadvertently requests or requires a family medical history;
2. Where an employer offers health or genetic services as part of a wellness program, the employee authorizes the disclosure in writing, and protections are in place to prevent the employer from discovering individually identifiable genetic information;
3. Where an employer requests or requires family medical history from the employee to comply with the FMLA's certification provisions;
4. Were an employer purchases documents that are commercially and publicly available (including newspapers, magazines, periodicals, and books, but not including medical databases or court records) that include family medical history;
5. Were the information involved is to be used for genetic monitoring of the biological effects of toxic substances in the workplace, but only if written notice is provided to the employee, the employee authorizes the monitoring in writing, the monitoring is required by and complies with a specific law, the employee receives the results, and protections are in place to prevent the employer from discovering individually identifiable genetic information; or
6. Where the employer conducts DNA analysis for law enforcement purposes as a forensic laboratory, but only to the extent that such genetic information is used for analysis of DNA identification markers for quality control to detect sample contamination.

If an employer obtains genetic information about an employee, it must maintain the information on separate forms and in separate medical files and threat it as a confidential medical record of the employee, similar to the treatment of other medical information under the ADA. The employer is only permitted to disclose the genetic information to the employee upon a specific written request, in response to a court order, to comply with the FMLA's certification procedures, or other very limited circumstances.

Employees have the same rights and remedies for alleged violations of GINA as they do for alleged violations of Title VII.

While genetic information discrimination may not be the most rampant problem facing employees, GINA nonetheless marks the first significant statutory change to the federal discrimination laws since 1991. Any such change should be cause for all companies to take a look at their current policies and HR practices to make sure that they account for this new protected class.

Interracial Association Discrimination found unlawful

Associational discrimination has become a hot employment law topic. The ADA expressly authorizes claims based on one's association to a person with a disability. Earlier this year, the 6th Circuit recognized an associational retaliation claim based on one employee's close relation to another employee who engaged in protected activity. Now, the 2nd Circuit has joined the 6th Circuit in permitting an associational discrimination claim based on the plaintiff's interracial relationship.

In Tetro v. Elliott Popham Pontiac, the 6th Circuit permitted an employee to proceed with a Title VII race discrimination claim based on his biracial child:

A white employee who is discharged because his child is biracial is discriminated against on the basis of his race, even though the root animus for the discrimination is a prejudice against the biracial child. ... If he had been African-American, presumably the dealership would not have discriminated because his daughter would also have been African-American. Or, if his daughter had been Caucasian, the dealership would not have discriminated because Tetro himself is Caucasian. So the essence of the alleged discrimination in the present case is the contrast in races between Tetro and his daughter. This means that the dealership has been charged with reacting adversely to Tetro because of Tetro's race in relation to the race of his daughter. The net effect is that the dealership has allegedly discriminated against Tetro because of his race.

In Holcomb v. Iona College, the 2nd Circuit allowed a white assistant basketball coach to claim that he was fired because he was married to an African-American woman:

[W]here an employee is subjected to adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee's own race.

Unlike associational retaliation claims, this type of associational discrimination claim makes sense under the statute. The adverse action is being taken "because of" the employee's race. The genesis of the discrimination is the fact that the employee is a different race than his spouse, which is "because of" his race.

The bottom line for employers - the race of your employees' spouses and children is none of your business. Supervisors and managers should not go out of their way to inquire about it. Diversity training should incorporate a component making employees aware that this type of discrimination is unlawful and will not be tolerated.

How to apply new email soliciation rules

Late last year, the NLRB issued its decision in Register-Guard, which determined that an employer can lawfully prohibit union-related use of company email systems if the employer has a consistently enforced policy prohibiting "non-job-related solicitations." If it was not clear before, after Register-Guard it is clear that an employer's email system is company property and "employees have no statutory right to use [the company's] e-mail system for Section 7 purposes." (For my prior discussion of this case, see NLRB rewrites employee solicitation rules).

To date, the NLRB has decided 5 cases under the Register-Guard standard. To help employers understand the position the NLRB will take on limitations placed on corporate email systems and other employee communications, it has summarized those 5 cases in a published memorandum, which I will further summarize for everyone.

Case #1: The employer had historically allowed the union to use the company's email system to conduct union business and to communicate with the employer about labor relation matters at the facility. Recently, the employer sent a letter to the union stating that it had knowledge that the union was inappropriately using the company's e-mail system by sending broadly distributed emails to company managers outside the facility. The letter cautioned that further similar activity could result in immediate suspension of the union's email account. The NLRB found the rule to be lawful because it concerned how the union was permitted to use the employer's email system and did not otherwise prohibit the union from engaging in protected communications outside the plant or to broad groups of managers.

Case #2: Both before and after the union's organizing campaign began, the employer maintained a no solicitation rule which, on its face, prohibited solicitation for any purpose during working time and in work areas. The employer, however, was inconsistent with its enforcement of the policy. For example, the employer warned and/or disciplined employees engaged in union solicitation activity, yet permitted non-union-related solicitations such as school fund raisers and Avon sales. Because the employer permitted direct solicitations for non-union/non-work purposes, its prohibition of union-related solicitations was discriminatory.

Case #3: The employer had a handbook provision which stated that its email system is intended for reasonable and responsible business purposes and is not intended for personal use, and that employees may not solicit during working time for any purpose. After sending an email communication about a union meeting, an employee received a written warning for using the email system for solicitation purposes in violation of handbook provision. Other employees, however, frequently sent non-work related emails while at work and during working times (such as chain letters, jokes, party invitations, and solicitations for candy sales) and were not disciplined. The NLRB concluded that the employee was unlawfully singled out because of the union-related content of his email. Case #4: An employee, who was dissatisfied with working conditions, circulated an email petition to try to drum up support to take the concerns to management. When the Board of Directors learned who was responsible for the petition, it terminated him for insubordination for participating in the "anonymous email scheme" and inappropriately using the employer's computers in violation of its policy. The NLRB concluded that the employer unlawfully discharged the employee for engaging in protected concerted activities when seeking the support to address working conditions. An employer may not rely on an employee's failure to adhere to a rule that prohibits protected activity as a basis for discipline. Further, because the employer's email policy allowed reasonable personal use of the computer and the employer permitted employees' extensive use of the Internet, email and other company equipment for their personal purposes, it disparately enforced its email policy against protected concerted activity.

Case #5: An employee union organizer led a delegation of union supporters into one of the employer's stores. The group handed the store manager a letter announcing of the formation of a union, together with a written list of demands regarding wages and working conditions. Simultaneously, other union members and supporters distributed union leaflets outside of the entrance. At the time of this event, the employer maintained two bulletin boards, one for official employer announcements and another for employee personal or general non-work-related matters. The employer had no written policy concerning the use of these bulletin boards. The next day, the main union supporter posted on the employee bulletin board the list of demands that had been given to the store manager, along with the union leaflet. The letter and leaflet were removed, yet other personal announcements remained. Thereafter, he noticed that all items that had been previously posted on the general employee bulletin board had been removed and employer materials were now posted there. The store manager informed the union organizer that employees were no longer allowed to post anything on the employee bulletin board. The NLRB concluded that the employer had an anti-union motive and that its actions were directly in response to the union activity. There was no disparate enforcement of a written company-wide policy, but an unwritten policy that was abruptly changed in response to union activities.

Conclusion: If an employer permits a union representing its employees to use the employer's email system, it can place reasonable limits on that use. If, however, an otherwise valid rule is promulgated or enforced for anti-union reasons, Register-Guard will not protect the employer's actions. The key is consistency. A neutral policy should be in place before any union activity or communication occurs. That reasonable policy should then be uniformly and consistently applied and enforced to avoid running afoul of the NLRA's protections for union and other concerted activities.

[Hat-tip: Manpower Employment Blawg]