Associational retaliation is not the FMLA’s peanut butter cup

In Thompson v. North Am. Stainless, the Supreme Court held that Title VII prohibits associational retaliation; an employer cannot retaliate against an employee by taking an adverse action against that employee’s close family member. The FMLA permits an employee to take up to 12 weeks of annual leave for the serious health condition of a close family member (spouse, child, or parent). Putting these two ideas together, one would assume that the FMLA protects against associational retaliation. The FMLA and Title VII, however, do not combine like chocolate and peanut butter to create an associational retaliation FMLA claim.

In Gilbert v. St. Rita’s Professional Services, LLC (N.D. Ohio 6/20/12), the Northern District of Ohio refused to recognize a claim for associational retaliation under the FMLA. Gilbert involved three plaintiffs, all of whom worked for St. Rita’s: Amy Gilbert, the mother of Shannon Kirby, who, in turn, was the mother-in-law of Mary Haught. After St. Rita’s fired all three, they sued. Kirby claimed that St. Rita’s retaliated her under the FMLA because her termination coincided with the end of Haught’s FMLA leave.

The court disagreed. It concluded that because the FMLA’s anti-retaliation language is more narrow than Title VII’s language, which the Supreme Court construed in Thompson, the FMLA does not provide for associational retaliation claims:

The Court rested its holding specifically on the broad “person … aggrieved” language of Title VII, language that is notably absent from the FMLA. In contrast to Title VII, the FMLA delineates certain specific classes of individuals who may bring an action — those who have been denied a right protected by the Act (“interference” plaintiffs) and those who opposed an employer’s unlawful action under the Act (“retaliation” plaintiffs)…. [I]t stands to reason that Congress’s intentional omission of Title VII's broad language in the FMLA specifically prohibits Plaintiffs’ interpretative extension of Thompson.

Not all statutes are created equal. Just because an employee has a remedy under one statute does not mean that the same remedy exists under another. When interpreting statutes, words matter, a lot. 

This case also gives me the opportunity to share this astonishingly bad 32-year-old Reese’s Peanut Butter Cup commercial. Enjoy the nostalgia, and ask yourself how an advertisement this hokey sold anything, let alone helped birth a candy institution.

6th Circuits provides much needed guidance on pleading standards

Today’s post is going to be a tad dry, for which I apologize. Its dryness, however, does not belittle the importance of the case I am going to discuss.

To file a lawsuit, the Federal Rules of Civil Procedure merely require a plaintiff to state in his or her complaint “a short and plain statement of the claim showing that the pleader is entitled to relief.” In Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal the Supreme Court defined what satisfies this requirement. A plaintiff must plead enough facts to raise a right to relief above mere speculation and from which a court can draw a reasonable inference that the defendant is liable for the misconduct alleged. In other words, one must be able to read the complaint and understand the specific misconduct that the plaintiff is alleging to be unlawful.

In discrimination cases, do these pleading standards require a plaintiff to specifically plead the elements of the discrimination claim under McDonnell Douglas, or is it sufficient for a plaintiff merely to allege facts that enable the court to infer discrimination?

In Keys v. Humana, Inc. (7/2/12) [pdf], the 6th Circuit reviewed the district court’s dismissal of a discrimination complaint because it had failed to allege facts that plausibly established a prima facie case under McDonnell Douglas. The 6th Circuit reversed, re-affirming that Twombly and Iqbal do not mandate the rote recitation of McDonnell Douglas’s prima facie elements:

The Amended Complaint contains allegations that are neither speculative nor conclusory; it alleges facts that easily state a plausible claim. The Amended Complaint alleges Humana had a pattern or practice of discrimination against African American managers and professional staff in hiring, compensation, promotion, discipline, and termination. It details several specific events in each of those employment-action categories where Keys alleges she was treated differently than her Caucasian management counterparts; it identifies the key supervisors and other relevant persons by race and either name or company title; and it alleges that Keys and other African Americans received specific adverse employment actions notwithstanding satisfactory employment performances.

If courts are not going to require plaintiffs to use McDonnell Douglas at the pleading stage, and instead focus on whether the complaint pleads a plausible claim of discrimination, is it time that we consider ending the charade that the McDonnell Douglas burden-shifting framework is a useful tool? Why make litigants jump through imaginary hoops at the summary judgment stage, when we can all analyze the ultimate issue (was the adverse action discriminatory) just fine on our own?

Contingency plans

My family and I spent last night with friends at Crocker Park’s Liberty Fest. If you’re not from the Cleveland area, Crocker Park is what marketers call a “Life Style Center.” I call it a really nice outdoor shopping mall. Liberty Fest is Crocker Park’s take on a July 4th celebration, with music, dancing, and stilt walkers. It all culminates with a performance by the Cleveland Pops Orchestra and fireworks. With a 4-year-old and a 6-year-old, we were there for the fireworks.

A line of thunderstorms, though, wreaked havoc on the event’s timing. The fireworks, which were scheduled for 10 pm, did not go off until close to 11. As you could imagine, my kids were not the only ones getting antsy waiting … and waiting … and waiting, as we listened to the Cleveland Pops run through its litany of patriotic songs, led by the emceeing of a local morning radio host who made me remember why I love my Sirius/XM subscription.

As we waited, I got to thinking—why didn’t the event have a contingency plan. Evening thunderstorms are common in Cleveland in the summer. It could not be that difficult to have a back-up itinerary in the event that rain delayed the proceedings. The Pops could have played 5 songs instead of 15. The radio guy could have cut out his not-so-witty banter. And, fireworks could have gone off closer to 10 instead of closer to 11.

The same holds true for your business. I’m sure you have star employees, without whom your business would suffer. Yet, do you know if they are content with their job. Or, do they feel underpaid, under-appreciated, or overworked. Tomorrow, one could walk out the door. Do you have a plan to keep your operations running at peak performance? Or would the departure of even one employee grind your company to a temporary halt.

Employees aren’t indentured to you, and there is nothing you to do to guarantee each works for you until retirement. Yet, let me suggest three simple steps to help you plan for the contingency of a key employee leaving.

1. Feedback: You cannot fix a problem that you don’t know exists. Talk to your employees. Gauge their level of contentment. Make adjustments where necessary to ensure, as best as possible, their continuity.
2. Cross-training: In the event an employee leaves, having others cross-trained to perform their tasks will help you ease the transition until you find the right permanent replacement. It will also help you in the event of unexpected medical and other leaves of absences.
3. Non-competition agreements: Even the most strongly drafted non-competition agreement cannot guarantee your keys employees won’t leave you. But, in the event that they do, these agreements will prevent the compounding of the harm by keeping these employees away from your chief competition.

WIRTW #231 (the “Obama <3 Roberts” edition)

Yesterday was the most anticipated day at the U.S. Supreme Court in quite some time. The Court handed down its opinion in National Federation of Independent Business v. Sebelius, which decided the constitutionality of the Affordable Care Act. And, Obamacare is alive and kicking. Here’s SCOTUSblog’s very tweetable summary of the historic opinion:

The key quote from the majority opinion, written by Chief Justice Roberts:

Our precedent demonstrates that Congress had the power to impose the exaction in §5000A under the taxing power, and that §5000A need not be read to do more than impose a tax. That is sufficient to sustain it.

In other words, the “mandate” to buy health insurance isn’t really a mandate at all, because individuals can simply refuse to buy health insurance and pay the resulting tax.

Here’s the entire 59-page opinion “in plain English,” again via SCOTUSblog (which gets huge props for its amazing live coverage):

If have a few spare moments and want to seek your teeth into the opinion, you can download all 187 pages here.

Or, you can read some summaries and commentaries from around the web:

• Health-Care Ruling: A Scorecard — from WSJ.com: Law Blog
• Don’t call it a mandate—it’s a tax — from SCOTUSblog
• What The Health Care Decision Means for Your Small Business — from WSJ.com: Small Business
• Supreme Court Upholds Individual Health Insurance Mandate — from SHRM
• Obamacare Decision: The Perils of Instant Analysis and Related Thoughts — from Michael Fox’s Jottings By An Employer’s Lawyer
• Social media angle on SCOTUS healtcare decision — from Internet Cases
• Ouch! CNN, Fox News Flub Coverage of Supreme Court’s Health Care Ruling — from TVLine

Here’s the rest of what I read this week:

Discrimination

• Say what? — from Walter Olson’s Overlawyered
• Is Breastfeeding Bias the EEOC’s Next Battleground? — from Employer Defense Law Blog
• Sticks and Stones Can Break Bones, but the Wrong Words Can Hurt Your Business — from Troutman Sanders HR Law Matters
• Banana-based racial harassment claim goes to trial — from Warren & Associates Blog
• Strippers Have Rights Too — from Donna Ballman’s Screw You Guys, I’m Going Home
• Fired for Reporting Workplace Injury — from The Proactive Employer Blog

Social Media & Workplace Technology

• Social Media in the Workplace: Much Ado about Nothing? — from i-Sight Investigation Software Blog
• Facebook Use At Work Falls, Twitter Is On The Rise — from The Huffington Post
• NBC Stations Keep Tabs On Employee Tweets — from TVNewsCheck
• What Not to Share: Enterprise Social Networking Etiquette — from The Up Mover
• ‘We Know What You’re Doing’ website outs drug users, boss-haters and more on Facebook — from BGR
• Is Your Co-worker Reading E-books On Company Time? — from Workplace Diva
• Employers Can Use Apps to Track Employees — But Is It a Good Idea? — from HR Hero’s Technology for HR Blog
• Pew survey finds that 17 percent of US cellphone users go online mostly on their phones — from Engadget Mobile
• Pinterest Legal Concerns: What is Lawful to Pin? — from Social Media Today

HR & Employee Relations

• Should you tell a job candidate about her body odor? — from Evil HR Lady, Suzanne Lucas
• Policies and User Adoption — from HR Examiner with John Sumser
• Workplace Investigation Pitfall: Failure to Use the Matter as an Opportunity to Improve the Organization and its Employee Relations Practices — from Strategic HR Lawyer
• Employer customer lists: "Whatever you say, dude." — from Eric Meyer’s The Employer Handbook Blog
• Legal Issues and Benefits to Employers for Employing Military Personnel — from Jason Shinn’s Michigan Employment Law Advisor
• Poll: Social Life, Not Social Media, Is Work's Biggest Distraction — from Workforce
• Employers to workers: Shape up, quit smoking — from Eve Tahmincioglu at Life Inc. on Today.com

Wage & Hour

• A work-life balance audit for employers — from Robin Shea’s Employment and Labor Insider
• Supreme Court To Decide Whether Employers Can “Moot” Collective Action — from Wage & Hour Tips
• SCOTUS Grants Cert in ERISA Case — from Phil Miles’s Lawffice Space

Labor Relations

• OMG! DUST NLRB Using Tech 2 Reach PPL re: PCA? UNTCO — from Dan Schwartz’s Connecticut Employment Law Blog
• 6th Circuit Holds Substantial Evidence Supports NLRB’s Conclusion That Charge Nurses Were Not Supervisors — from Wisconsin Employment & Labor Law Blog

Abandoning job because of harassment does not support retaliation claim, says the 6th Circuit

Last week, I discussed the 6th Circuit’s most recent pronouncement on same-sex harassment. I noted that while some would argue the Court’s dismissal of the harassment claim is evidence of the need for law against workplace bullying, in reality the Court’s dismissal of the retaliation claim was the more troubling aspect of the opinion. What did I mean?

Recall that in Wasek v. Arrow Energy Services [pdf], when Harold Wasek complained that his male co-worker, Paul Ottobre, was harassing him, his superiors first told him not to “make waves [by] whining,” and later told him he should just “kick [Ottobre’s] ass,” and that they should “duke it out” to “get it out of [their] systems.” In response to this supervisor’s advice, Wasek went AWOL from his Pennsylvania job site. When Wasek later pursued the issues with HR, the regional supervisor told him that it’s “the way the oil field is” and that if Wasek couldn’t handle it he “should find another line of work.” Ultimately, Arrow banned Wasek from working in Pennsylvania and reassigned him to a job site in Michigan. He ultimately quit to work for a different employer.

The Court concluded that Wasek going AWOL, and not his complaints about harassment, caused his job-site transfer:

Wasek’s claim fails, however, because he has not demonstrated a causal connection between his protected activity—the complaints—and Arrow Energy’s adverse employment action—the Pennsylvania ban….

Leaving the work site could be protected activity if leaving itself were a “complaint” about sexual harassment. But this would require a fact-intensive inquiry into whether or not leaving the work site was reasonable under the circumstances.

Lately, we've seen more than one example of employers who avoided liability despite encapsulating some pretty poor HR practices. This case provides another textbook case of how not to respond to an employee complaint. Yes, you can hope to avoid liability based on a legal argument that the employee was not engaging in protected activity because the underlying misconduct was not illegal. That hope, however, misses the point. Anyone who has responsibility for responding to harassment complaints should be troubled by a decision that justifies an excuse such as “that’s the way the oil field is,” and suggests that the complaining employee tough it out or find another job. Employers need to take all complaints seriously, not just those that the employer thinks will cause it legal problems down the road.

Did the 6th Circuit just approve a claim for benign discrimination?

In Litton v. Talawanda Sch. Dist. (6th Cir. 6/26/12) [pdf], a demoted and transferred custodian sued his employer for age and race discrimination. At trial, the jury returned the following special verdict:

The jury concluded that Litton did not prove that he had suffered an adverse action, yet proved that he was treated differently because of his race. Under the McDonnell Douglas burden-shifting framework, the lack of an adverse action should dispose of the case. If one cannot show a prima facie case (which includes the suffering of an adverse action), the ultimate issue of discrimination should never be reached.

The 6th Circuit, however, disagreed. It disregarded the jury’s finding on the existence of an adverse action as irrelevant to its subsequent finding on the ultimate issue of whether discrimination occurred:

The jury’s assessment of Litton’s prima facie case did not control its finding on the ultimate question of discrimination…. he district court was not only permitted to disregard the jury’s answer to the adverse employment action question, it was required to do so, and instead to evaluate the strength of the evidence as a whole.

As I read the opinion in Litton, I mapped out in my head a grand critique. Then I read Judge Batchelder’s dissent, and decided I couldn’t say it any better:

The core problem with the majority’s holding is that it treats the question of whether Litton suffered adverse discrimination as distinct from “the ultimate question of discrimination vel non.” The two are one…. Title VII does not ban mere discrimination, but only adverse discrimination…. It is, to me, beyond obvious that Title VII applies only where there has been discrimination against an individual. That requirement is not merely some vestigial prima facie element that fades into the background as the case progresses—it is at the heart of the claim itself….

In sum, “the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” … The majority should not relieve Litton of his burden, and it certainly should not grant him victory in the face of a jury verdict finding that he never proved that he suffered adverse discrimination at all. The whole purpose of Title VII … is preventing harmful discrimination, not the lamentable-but-benign discrimination that the jury found Litton experienced.

Did the 6th Circuit unwittingly create a cause of action for benign discrimination? Or, is this case an anomaly that future courts will distinguish and disregard? Common sense mandates the latter. Right?

Will the Supreme Court (re)define employer liability for harassment by supervisors? Vance v. Ball St. Univ.

An employer’s liability for unlawful harassment depends, in part, on whether the alleged perpetrator of the harassment is a supervisor or a co-worker. Employers are strictly liable for unlawful harassment committed by a supervisor, but only liable for harassment committed by a non-supervisory co-worker if the company was negligent in discovering or remedying the harassment.

In Vance v. Ball St. Univ. (7th Cir. 6/3/11), the court concluded that for the purpose of imposing strict liability for harassment, “supervisor” means “direct supervisor.” That is, if the alleged harasser is a supervisor in title, but lacks the power to directly affect the terms and conditions of the plaintiff’s employment, strict liability cannot attach, and the court must analyze the employer’s liability under a negligence standard.

Yesterday, the U.S. Supreme Court agreed to hear the appeal of this case. The Court will decided the following two-part issue:

Whether the “supervisor” liability rule … (i) applies to harassment by those whom the employer vests with authority to direct and oversee their victim’s daily work, or (ii) is limited to those harassers who have the power to “hire, fire, demote, promote, transfer, or discipline” their victim.

This case has the potential to be significant for employers. As the plaintiff argued in support of the Supreme Court hearing the case:

These issues are no small matter. During the twelve-month period ending September 30, 2010, 14,543 employment discrimination cases were filed in United States courts—the third-largest category of civil cases…. And in 2010 alone, the EEOC received more than 30,000 harassment charges…. Employers agree that this issue is “an important and recurring issue of federal law.” In the modern workforce, where many acts of discrimination are committed by intermediate-level individuals in a large hierarchical organization such as Ball State University, resolution of this issue will undoubtedly add clarity to a great many employment discrimination disputes.

This case presents an excellent opportunity to settle this important issue.

Indeed, the federal appellate courts are split on this issue. The 1st, 3rd, 6th (which includes Ohio), and 8th agree with the 7th Circuit’s opinion in Vance v. Ball St. Univ., while the 2nd, 4th, and 9th Circuits, in addition to the EEOC, conclude that a supervisor is a supervisor regardless of the degree of oversight or control over the alleged victim of the harassment.

Hopefully, this case will settle this dispute and provide much needed clarity on the scope of an employer’s liability for unlawful harassment. This supposedly business-friendly Court has proven itself to be an ally of employees in recent cases. Will this trend continue? Much more on this case in the coming months, including an attempt to handicap the outcome after oral argument.

[Hat tip: Phil Miles’s Lawffice Space]