What qualifies as “opposition” under Title VII?

Last week, I discussed the limits of Title VII’s opposition clause in protecting (or not protecting, as the case may be) employees who make unreasonable or unfounded complaints about discrimination. Today, I am going to discuss another aspect of the opposition clause that can also provide some relief to employers — the specificity of one’s opposition to an act of discrimination.

Trujillo v. Henniges Automotive Sealing Systems NA, Inc. (6th Cir. 8/21/12) [pdf] involves two different allegations of protected activity:

1. After the company’s vice president referred to Mexican plant employees as “those fucking wetbacks,” Trujillo lightheartedly confronted him, resulting in an embarrassed apology.

2. After the same vice president made some disparaging remarks about a Latin American employee, Trujillo spoke to the company’s Vice President of Human Resources.

The 6th Circuit concluded that the only the latter constitutes protected opposition:

We have previously held that advocating for members of a protected class is protected activity for purposes of Title VII retaliation…. Trujillo could have engaged in protected activity if he had complained about Rollins’s comment at the time, even though those comments were not directed at Trujillo personally. However, Trujillo’s own testimony makes clear that he did not complain to Rollins about the comments at the time they were made. With regard to the “wetback” comment, Trujillo admits that he did not communicate that Rollins’s comment offended him, let alone that he was complaining about the racial or ethnic character of the conduct….

In contrast, the district court erred in holding that Trujillo’s statement to Gasperut was not in “opposition” to the alleged racial character of Rollins’s comments…. We have repeatedly held that complaints to human resources personnel regarding potential violations of Title VII constitute protected activity for purposes of establishing a prima facie case of retaliation…. The fact that it was, as the district court characterized it, an “informal conversation” does not change the nature and purpose of the conversation, which was a “discrete, identifiable, and purposive” opposition to racially-oriented language….

Part of the takeaway from this case is that not every response to a tinged or biased remark qualifies for Title VII’s anti-retaliation protections. This case, however, also teaches a different lesson. Opposition can rest in the eye of the beholder. The dissent, for example, would have refused to have protected any of Trujillo’s complaints, and would have concluded that he had merely engaged in non-protected venting:

If the plaintiff had complained that such comments constituted discrimination against him, I would have no quarrel with the majority opinion. If plaintiff had in any way intimated that such remarks could constitute discrimination against other people in the company, I would concur. However, plaintiff himself said: “I kind of was just venting. I was not intending for her to take action.” … Not every casual remonstrance against bad language equates to complaining of illegal discrimination.

What is the best practice? Assume all but the most attenuated of responses to a potentially discriminatory statement qualifies as protected, and do not leave it in the hands of judges or juries to draw these nuanced distinctions. And, if you have to take action against someone who has arguable engaged in protected opposition, involve counsel in the decision making before you draw yourself into a potential lawsuit.

The more you know… Determining when a company knows that an employee engaged in protected activity

“The check is in the mail” is one of the world’s oldest (and some would argue lamest) excuses. In Hicks v. SSP America (6th Cir. 8/3/12), the employer tried a variation in an attempt to avoid an employee’s retaliation claim. The employer argued that it was impossible for it have known that the plaintiff had filed an EEOC charge before it fired her because it has lost its mailbox key and therefore it could not have received its copy of the charge. Without debating the merits of the employer’s argument, the court of appeals still concluded that a factual issue existed on the issue of whether the employer knew of the protected activity, and reversed the trial court’s grant of summary judgment. The court relied, in part, on testimony from Hicks’s direct supervisor that he “‘remember[ed] seeing  it’ (apparently meaning he had seen either the notice-of-charge envelope from the Commission or the charge itself).”

This case teaches two important points:

1. Retaliation claims are dangerous. In Hicks, the appellate court affirmed the dismissal of the underlying discrimination claim. Nevertheless, the employer still faces the risk of a trial on the retaliation claim.

2. When crafting a defense, it has to pass the B.S. test. Unsupported defenses that border on the ludicrous (I lost the mailbox key) better have some meat on their bones. Receipts from a locksmith? An affidavit from the mailman that mail was piling up inside the box? Other corroborating witnesses? The less support you can present, the less likely it will be that a judge or a jury will believe your cockamamie story. And, the less likely they are to believe you, the more zeros you can add to the verdict.

Courts inch closer to recognizing sexual orientation as a protected class

The Ohio Bell Telephone Company fired Plaintiff Jason Koren after he missed work for his father’s funeral. Koren suspected that Ohio Bell really fired him because he’s homosexual and took his husband’s last name. He sued for gender discrimination. Did the court: a) grant Ohio Bell’s motion for summary judgment because Title VII does not offer protections for sexual orientation; or b) deny the motion because Title VII does protect against the application of unlawful sex-based stereotypes? Give yourself a prize if you answered “b.”

Here’s what the court had to say in Koren v. The Ohio Bell Telephone Co. (N.D. Ohio 8/14/12) [pdf]:

“[A] plaintiff hoping to succeed on a claim of sex stereotyping [must] show that he fails to act and/or identify with his or her gender, … as all homosexuals, by definition, fail to conform to traditional gender norms in their sexual practices.” Koren’s position is that changing his name upon marriage was a nonconforming “behavior” that supports his gender discrimination claim…. Ohio Bell disagrees and attempts to frame Koren’s claims as a simple attempt “to bootstrap protection for sexual orientation into Title VII.” …

The Court agrees with Koren: homosexual males do not “by definition, fail to conform to the traditional gender norms” by changing their surname upon marriage. And here, Koren chose to take his spouse’s surname—a “traditionally” feminine practice—and his co-workers and superiors observed that gender non-conformance when Koren requested to be called by his married name….

Koren has alleged just such a failure to conform. And he says that [manager] Miceli “harbored ill-will” because he changed his name but that she would not have done so if a female employee had changed her name. Koren testified that Miceli refused to call him by his married name, that Miceli went out of her way to call him by his previous last name, and that Miceli informed him that she did not recognize same-sex marriages. And that ill-will, Koren says, resulted in seven unexcused absences and, ultimately, his termination.

Nine out of the last 10 Congresses have tried to pass a version of the Employment Non-Discrimination Act, which among other things, would add “sexual orientation and gender identity” to the list of classes protected under Title VII. It has failed each time. Courts and the EEOC, however, continue to give the LGBT community that which the legislature has rejected.

As for me, I’ll simply repeat the opinion I gave after the EEOC issued its groundbreaking pronouncement on this issue earlier this year:

The time is coming when this type of discrimination will no longer be an open issue. I suggest you get on the bandwagon now, and send a signal to all of your employees that you are a business of inclusion, not one of bigotry and exclusion.

WIRTW #238 (the “Doc Hopper” edition)

What does a labor and employment lawyer do to relax on the weekends? If it’s this labor and employment lawyer, and it happens to be the second Sunday in August, the answer is frog jumping (the Valley City Frog Jump Festival, to be precise). Click here for a full recap of my family’s not so stellar, but oh so fun, showing at this year’s event.

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

Discrimination

• Sexual orientation and reverse discrimination — from EmployerLINC
• Harassment complaints by male Homeland Security employees — from Walter Olson’s Overlawyered
• Can a Netflixian Approach to Selection Decisions Eliminate Discrimination? — from Stephanie Thomas’s Proactive Employer Blog
• Employer wins lawsuit despite a "pattern of systematic sexual harassment" — from Eric Meyer’s The Employer Handbook Blog
• Helping Employers Against Employees Who Help Themselves to Company Information to Build a Discrimination Claim — from Jason Shinn’s Michigan Employment Law Advisor
• Discrimination claims by Muslims on the rise — from California Employment Law
• Employment Litigation: How Much Will You Pay? — from Mark Toth’s Manpower Employment Blawg
• Orders to “Go see the Doc” cost Baltimore County $475,000 — from Employment Discrimination Report
• The EEOC Came Knocking (Part Two): Effective Position Statements — from Suzanne Boy’s Southwest Florida HR Law & Solutions
• Virtually All of The Fortune 500 Companies Voluntarily Prohibit Discrimination On The Basis of Sexual Orientation — from Employment Discrimination Report

Social Media & Workplace Technology

• The Business BYO Craze: Has It Gone Too Far? — from hr bartender
• Use Your Email Signatures to Get Overeager Coworkers Off Your Back — from Lifehacker
• Does the Company or the Employee Own a Twitter Account? — from California Employment Law Report
• Social tools for tracking your employees — from Mike VanDervort’s The Human Race Horses
• CFO firing after Chick-fil-A post shows what's protected and what’s not in social media speech — from Phoenix Business Blog
• How to Use Social Media Evidence in Workplace Investigations — from i-Sight Investigation Software Blog

HR & Employee Relations

• “I Would Like To Extend You A Counter-Offer To Suck My Dick”: A Rejected Jobseeker Sends The Padres The Best Letter Ever — from Deadspin
• Separation Agreement or No Separation Agreement? — from Labor & Employment Law Perspectives
• Criminal Convictions and Arrests - To Hire Or Not To Hire? — from From the Sidebar
• Your employer sucks and isn’t going to change — from Ask a Manager
• My Employer Says I Have To Resign. What Should I Do? — from Donna Ballman’s Screw You Guys, I’m Going Home
• Locking Janitors in Wal-Mart - False Imprisonment? — from Phil Miles’s Lawffice Space

Wage & Hour

• The One In Which I Try to Explain the Joint Employer Test — from Dan Schwartz’s Connecticut Employment Law Blog
• FLSA Lessons from Gordon Ramsay — from Molly DiBianca’s Delaware Employment Law Blog
• Can my boss track my hours? — from Suzanne Lucas, the Evil HR Lady, writing at CBS Money Watch
• Tenth Circuit Upholds Salary Basis (and Thus Exempt Status) Despite Deductions From PTO Bank — from Wage and Hour Law Update
• Overtime and Exotic Dancers — from Alabama Employment Law Report
• Federal Judge Severely Limits Scope of Auto-Deduct Collective Action — from Healthcare Employment Counsel
• Beware the loose thread that can unravel the entire garment — from Mike Maslanka’s Work Matters
• Why You Should Know Your Rights Under FMLA — from Workplace Fairness

Labor Relations

• NLRB Taking Aggressive Legal Positions in Attempt to Remain Relevant — from Russell Cawyer’s Texas Employment Law Update
• An uninvited guest: the NLRB settles in — from John Holmquist’s Michigan Employment Law Connection
• Does the Golden Rule Violate Section 7 of the NLRA? — from Labor Relations Institute
• NLRB Sets Sights on “At-Will” Provisions — from Hiring & Firing
• Free Speech is not Protected at Work but Some things you say may be. — from Mike Haberman’s Omega HR Solutions

Piercing the bulletproof employee

Retaliation comes in two flavors: participation and opposition. The former protects employees who have “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under” the relevant statute; the latter protects employees who have “opposed any practice made an unlawful employment practice.” Jackson v. Board of Education of Memphis City Schools (6th Cir. 8/15/12) [pdf] answers the question of how far the opposition clause goes to protect employees who make unreasonable or unfounded complaints about discrimination. It also teaches an important lesson that not every employee who complains about discrimination is bulletproof.

The Memphis City Schools employed Janice Jackson (African-American), as a teacher’s assistant. She worked at a school run by an African-American principal. Ninety-seven percent of the school’s staff was African-American, including 29 of the school’s 31 teacher’s assistants. After being admonished by the principal for unprofessional behavior, Jackson delivered a personal letter, in which she indicated that she felt unfairly singled out because her White co-workers were allowed “duty[-]free breaks,” while African-Americans were “criticized for taking breaks”—“a clear violation of the Civil Rights Act of 1964.” After her transfer to a different school, she sued, claiming retaliation.

The court of appeals affirmed the trial court’s dismissal of her retaliation claim. The court noted that to support a claim of retaliation under the opposition clause, an employee’s opposition must “be based on a reasonable and good faith belief that the opposed practices were unlawful.” In this case, Jackson did not come forward with any evidence that the school principal treated African-American employees differently than White employees. Instead, the court concluded that she was merely addressing a legitimate personnel issue raised by Jackson’s unprofessional behavior.

Critically, the court went out of its way to point out that employers do not always need to fear taking action when faced with a poor-performing employee who happens to complain about discrimination.

To hold that opposition is reasonable when the employer is addressing an apparent and legitimate personnel matter in a way that does not explicitly or implicitly implicate Title VII, with no other testimony or evidence of racial discrimination, would hamper an employer’s ability to address legitimate issues for fear that doing so could leave the employer vulnerable to liability under Title VII.

Many employees believe they can make themselves bulletproof merely by raising the specter of discrimination. They wrongly believe that the anti-retaliation statutes will automatically protect their jobs. Conversely, many employers have a paralyzing fear of terminating a complaining employee no matter the circumstances. Jackson demonstrates that both of these fear can be unfounded. The potential of a retaliation claim certainly ups the ante when terminating an employee who has complained about discrimination. Yet, in the right circumstances and for the right reasons, employers do not need to live in fear of firing a deserving employee, provided that they take the right steps and have the proper documentation.

The language of the modern workplace

Merriam-Webster's Collegiate® Dictionary just released its list of new words for 2012. Three caught my eye.

According to the publisher, Merriam-Webster adopts new words based on usage:

To decide which words to include in the dictionary and to determine what they mean, Merriam-Webster editors study the language as it's used. They carefully monitor which words people use most often and how they use them….

To be included in a Merriam-Webster dictionary, a word must be used in a substantial number of citations that come from a wide range of publications over a considerable period of time. Specifically, the word must have enough citations to allow accurate judgments about its establishment, currency, and meaning.

Because these words have crept into the American lexicon, they should be accounted for in your workplace policies. Technology policies should cover information stored in and accessed from the cloud. Harassment policies and training should teach employees about the dangers of texting and other co-worker communications via mobile phones, email, and social media. And, if you get into a hot legal mess because you omitted these ideas from your policies, drop a few f-bombs (then call your lawyer).

Don’t forget these 5 security issues in your BYOD policy

BYOD might be the corporate buzz word for 2012. If you’re in the dark, BYOD stands for Bring Your Own Device. It represents employees connecting their own mobile devices to corporate networks, instead of using employer-issued devices. There was a time, not all that long ago, when Blackberry was the mobile device of corporate America. Once iOS and Android started supporting email via Exchange, however, executives started questioning why they needed to carry a work device and a personal device. In short, they wanted their email and Angry Birds wrapped up in one tidy mobile package. Thus, the birth of BYOD. Today, Blackberry is going they way of Betamax, and BYOD is here to stay. I call the iPhone-ification of corporate America.

BYOD, however, is not without its risks. Over at The HR Capitalist, Kris Dunn offers the following sample BYOD Policy (c/o Scott Stone):

We expect each team member to provide their own device – you select it, you buy it, you pick the plan that makes the most sense for you.  Your phone, your phone number, your provider of choice, your contract with the provider

We strongly recommend a “Smartphone” of some type, to ensure you can receive emails or other critical communications on the device.

Our Company will provide you access to your work email address on the device, including assisting you with the setup.

If your device is a “Smartphone”, our company will reimburse you $75 per month to cover all work related communications on the device (email, text, voice, communications, etc).  We expect you to select a plan which can accommodate your business and personal needs for voice and data

If you select a PO Phone (plain ‘ol phone) which lacks the ability to receive and send emails, our company will reimburse you $15 per month for all work related communications

We won’t provide a “company phone” to anyone, preferring to allow you to “BYOD”, and provide everyone maximum flexibility.

If you ever choose to leave the company, take your phone, your number, and your existing agreement with a provider – no hassle, no number change, no problem.

These seven points have one glaring omission—security. The biggest risk that BYOD creates is the seemingly uncontrolled access to your network, both in terms of what information is accessed and take from it, and what happens to that information if a device is lost or stolen. In light of these security risks, any BYOD program should answer the following 5 questions:

1. What devices are permitted? Does BYOD mean any device, or does it simply mean iPhones or Androids? What about iPads or other tablets? Employee-owned laptops? Stick drives and other portable memory?

2. Are you going to mandate passwords or other security-screens on network-connected devices? Employees generally resist having to enter a four-digit pin code every time they turn on their iPhones. Your IT, legal, and risk management departments, however, should require them, since they make it that much harder for someone to access data on a lost or stolen device. If your organization deals in confidential information (e.g., doctors, lawyers, etc.), this requirement is that much more important (and might be mandated by law). Also, your BYOD policy should reference any other policies that address the handling of confidential and proprietary information.

3. What happens when a device is lost or stolen? IT must have the ability to remote-wipe a missing mobile device. Guess what happens, though, if an employee’s first call upon losing a phone is to their mobile carrier? The carrier turns off the device, and your organization loses the ability to remote wipe any data from it. Employees should be told that if they lose a mobile device, their first call should be to IT so that the device can be wiped of any corporate data.

4. Will you ban jailbreaks, roots, and other hacks? These practices void the phone’s warranty. Also, consider banning the installation of apps other than from the official iTunes App Store or Google Play. It will limit the risk of the installation of viruses, malware, and other malicious code on the devices.

5. What happens when an employee leaves? You should not only address what happens with the physical device, but also what happens with the data that lives on the device. You need a protocol to re-acquire or wipe all corporate information on the device. Otherwise, you are putting your confidentiality at risk.

Any successful BYOD program results from a synergy among the C-suite, legal, IT, HR, and risk management. Involve all of these departments to make sure that your BYOD program is successful, and addresses all necessary security issues.