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by M. McClure on Oct 8, 2013 at 9:09 AM

EEOC The federal government shutdown continues, and although the EEOC offices are impacted by the closure, the requirement for an employee to file a charge of discrimination within 180 days of the discriminatory conduct remains.

According to the EEOC shutdown notice, which can be found on the EEOC website at http://www.eeoc.gov/eeoc/shutdown_notice.cfm, there are currently only a limited number of services available during the shutdown. Although many of the services provided by the EEOC are currently unavailable, the clock is still running for employees who are seeking to file a charge of discrimination against an employer. Thus, In Arkansas, the requirement to file a charge within 180 days of the discriminatory conduct is still in effect.

The EEOC's mediation services and the EEOC's litigation efforts are suspended during the shutdown.

 

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by M. McClure on Sep 12, 2011 at 2:49 PM

Individual Liability for Retaliation in ArkansasThe Arkansas Supreme Court recently answered a certified question from a federal court regarding whether managers may be personally liable in retaliation cases brought under the Arkansas Civil Rights Act. The question is an important one because most courts have found that individuals are not liable for retaliation under Title VII of the Civil Rights Act, the federal discrimination law. 

In Calaway v. Practice Management Service, Ms. Calaway complained to the office manager about sexually harassing comments from her physician-employer.  Calaway asserts that once the physician learned of Calaway’s complaints, he immediately terminated her employment.  

Calaway filed her lawsuit in federal court, alleging that she worked in a hostile work environment and that Practice Management and the physician retaliated against her.  Her lawsuit sought to hold Practice Management and the physician liable under Title VII and the Arkansas Civil Rights Act. 

The Arkansas Supreme Court determined that the Arkansas Civil Rights Act allowed a person to be held individually liable for retaliation.  The Court reasoned that the section of the statute that concerns retaliation unambiguously refers to a "person."  The court looked to the plain meaning of the word "person" and interpreted it to mean an individual, thus creating individual liability for retaliation claims.

Bottom Line:  Until the Arkansas legislature changes the state statute regarding retaliation, management and human resources employees could be personally liable for business decisions that create retaliation complaints.  Individual liability does not exist under Title VII, so it would be up to the Arkansas legislature to amend the Arkansas Civil Rights Act to bring it in line with federal law.

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by M. McClure on Apr 8, 2011 at 2:31 PM

EEOC deadlines for discrimination litigationIn a recent case, Frazier v. Vilsack, the Eighth Circuit upheld the dismissal of a Title VII racial discrimination case filed one day after the expiration of the statute of limitations.  This is a clear example of how seriously courts take deadlines.  In Frazier, the employee filed his lawsuit against a government employer 96 days after the EEOC mailed him the right-to-sue letter.  Under Title VII, an employee has 90 days from the time the notice is received to file suit against the employer. 

The district court found that the right-to-sue letter did not arrive until five days after the date the letter was issued.  Therefore, the employee did not file his suit for 91 days, one day past the statute of limitations.  The Eighth Circuit noted that it was not clear whether Title VII’s statute of limitations were jurisdictional or an issue of equitable tolling, but that it did not matter.  One day late is still too late.  The employee tried to argue that he didn’t receive the right-to-sue letter until after March 18th, the day the trial court found the letter arrived, but could not provide evidence to support his claim.  He also argued that he did not always open his mail on the day it arrived, and therefore would not have had notice until after the 18th.  The Court held that such arguments had no impact on the statute of limitations.  

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by M. McClure on Feb 25, 2011 at 1:28 PM

Retaliation claims now available to friends and familyRetaliation claims under Title VII recently became available to a new group of employees, including friends and family of employees who complain about discrimination. The United States Supreme Court unanimously held in Thompson v. North American Stainless that Title VII creates a cause of action for a third party who suffers some adverse employment action because of an association with an employee who complained of discrimination.

The facts of the case are simple: Thompson and his then fiancée (now wife) worked for North American Stainless (“NAS”).  The fiancée filed a gender discrimination complaint against NAS with the EEOC.  Three weeks after receiving notice of the fiancée’s complaint, NAS fired Thompson.  Thompson then sued NAS claiming that he was fired in retaliation for his fiancée’s protected activity, which was filing a gender discrimination complaint.

Justice Scalia, writing for the Court, stated that there were two question presented: First, did NAS’ firing of Thompson constitute unlawful retaliation? And second, if it did, does Title VII grant Thompson a cause of action?
   
With regard to the first question, Justice Scalia wrote, “Title VII’s anti-retaliation provision must be construed to cover a broad range of employer conduct.”  Furthermore, Title VII prohibits any employer from taking action that might dissuade a reasonable worker from making or supporting a charge of discrimination.  The Court stated, “We think it is obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew her fiancé would be fired.”

The Court then declined to identify a fixed class of relationships for which third-party reprisals are unlawful, stating that, “Title VII’s anti-retaliation provision is simply not reducible to a comprehensive set of clear rules.”   

The second question raised by Thompson, whether the third party victim has a cause of action under Title VII, was more difficult, and revolved around that meaning of the word “aggrieved.”  The Court adopted the “zone of interest” approach.  

Under the “zone of interest” approach, “a plaintiff may not sue unless he falls within the ‘zone of interests’ sought to be protected by the statutory provision whose violation forms the legal basis for the complaint.”  In other words, Mr. Thompson can sue for third party retaliation under Title VII because his employment was terminated by NAS, but a stock holder could not because her harm is not related to employment.

Bottom line: More employees are now eligible to bring retaliation claims, which are some of the hardest types of Title VII claims to defend. Employers should consider whether any adverse employment action creates the appearance of retaliation before moving forward with it. 

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by M. McClure on Sep 13, 2010 at 3:31 PM

Plaintiffs gain momentum in ADA litigationThe first cases decided under the amended ADA are beginning to appear, and, as expected, they don't look great for employers. In October of 2008, Congress passed the Amendments Act to the Americans with Disabilities Act (ADAAA), expanding the definition of disability. The new cases move away from the issue of whether the plaintiff is disabled and focus instead on whether the employer met its responsibility in the accommodation process.  Three recent cases illustrate this trend.    

Jenkins v. National Board of Medical Examiners is the only ADAAA case that has been decided by a circuit court so far.  Jenkins was a medical student that had been diagnosed with a reading disorder at a young age.  Despite this disadvantage, he successfully completed high school, college and had reached his third year of medical school before his reading disorder presented an insurmountable challenge.  The National Board of Medical Examiners refused to provide Jenkins with additional time on an upcoming test.  Jenkins sued for injunctive relief.  At trial the court applied the old, more restrictive, standard and found that Jenkins was not disabled.  Jenkins appealed.  Before the Sixth Circuit heard the case, the new standard went into effect.  Because Jenkins was requesting relief for an ongoing harm, the Sixth Circuit applied the ADAAA and found that Jenkins was disabled.  Plaintiff wins.
    
In Grizzell v. Cyber City Teleservices Marketing, Inc., the employee was sent to the Philippines for job training where he witnesses the death of a young girl.  The experience traumatized the employee, who had previously been diagnosed with post-traumatic stress disorder (PTSD).  The employee told his employer that he might need treatment for PTSD, but the employer refused to accommodate the employee’s request.  A few weeks later, the employer fired him.  The employee sued; the employer filed a motion to dismiss; and the court held that PTSD is a disability under the ADAAA and the case should go to trial.  Plaintiff wins.
    
In Hoffman v. Carefirst of Fort Wayne, Inc., the employee was in remission after treatment for renal cell carcinoma and had been released for work with no restrictions by his doctor.  One year later, the employer changed the employee’s hours from 40 a week to 65-70.  When the employee told his employer that he could not work that long for health reasons and provided a statement from his doctor to that effect, the employer fired him.  Later, the employer called the employee, stating that he had not been terminated, and could work 40 hours a week, but could no longer work from home and must commute to a location an hour away.  The employee was not amused, and told the employer that because he had already been fired, he was not coming back to work under those conditions.  The employee then sued the employer for wrongful discharge under the ADAAA.  The employer filed a motion for summary judgment, claiming that the employee was not disabled.  The Court held that cancer in remission can be a disability, and held for the employee.  Plaintiff wins.
    
The score so far: Plaintiffs 3, Employers 0.  In every ADAAA case the courts have ruled on to date, in addition to the three discussed above, the employee has been found to be disabled.  This is a major shift for employers.  Employers now need to focus on the accommodation process and give real thought to whether an accommodation is available to assist an employee who has medical concerns.   

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by M. McClure on Apr 27, 2010 at 11:51 AM

Emails in  Employment LitigationMost of us have heard stories about emails in the workplace resurfacing in litigation. So, the facts of Elam v. Regions Financial Corp. are not surprising.

In Elam v. Regions Financial Corp., a newly hired teller was frequently sick at work and later discovered that she was pregnant and suffering from morning sickness.  The bank allowed the teller to have a drink at her station and to arrive late due to morning sickness.  The teller had performance issues other than her attendance.  She would leave her cash drawer unlocked and sometimes leave her station in the middle of a transaction.  Although the teller was reprimanded, her behavior did not improve.  Her supervisor sent an email to HR requesting to fire the "pregnant girl teller." Upon HR's approval, the teller was fired.  The teller sued the bank under Title VII for pregnancy discrimination. 

The 8th Circuit Court of Appeals upheld the lower court's ruling in favor for the bank.  The Court did not find any direct or indirect evidence of discrimination.  The supervisor's reference to the teller as "the pregnant girl teller" was not found to be discriminatory because references to a protected status without reflecting bias is not direct evidence of discrimination.  The bank had provided numerous accommodations and had non-discriminatory reasons for terminating her.  Finally, the Court noted that pregnancy does not require special treatment.

The case ended well for the bank.  However, this single email was likely a significant reason for the litigation.  Avoiding litigation is more important than winning litigation.  Remind your workplace that email communication is communication nonetheless and could be the basis of litigation.

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by M. McClure on Mar 15, 2010 at 8:55 AM

EEOC The EEOC seems to send a lot of charges to employers just before the end of each fiscal quarter, which is coming right up on March 31st.  After investigating the facts of an EEOC charge, one of the first decisions that an employer must make is whether to mediate.  

EEOC mediation provides a quick, confidential way to settle a dispute with an employee.  And, we are fortunate that the Little Rock EEOC office is particularly good at mediation.  Here are some issues to consider when deciding whether to participate in EEOC mediation. 

Does the employee still work for you?

Defending a charge is much more complicated when the employee still works for your company.  The risk of retaliation is significant because any adverse action against the employee, even where warranted, may create the appearance of retaliation.  Mediation provides a forum in which the employer and employee can reach a compromise to which both parties agree.  In some cases, the employer may even be able to negotiate the employee's resignation from the company, although that won't be inexpensive. 

How good is your evidence?

No employer is perfect, and sometimes the evidence of the issue is just not as good as it should be. Important documents may be missing or were never created.  Witnesses to the conduct may have already left the company, perhaps not voluntarily, and their recollection of the events may be unpredictable. 

Is this a matter you need to resolve quickly? 

You may have a business reason that is completely unrelated to the charge that requires a quick resolution. Defending an EEOC charge will cost time and money, and those resources may be better directed toward a settlement.   

Is this an issue that you would like to keep confidential? 

The mediation process is confidential; complaints filed in court are a matter of public record. 

Are you willing to put something - probably some cash - on the table?

Don't come to mediation with nothing to offer.  If the employee is still working for the company, you may be able to offer non-cash items like training or reassignment in the company.  If you plan to settle a charge with non-cash benefits, make sure they have significant value or the mediator may come to the conclusion that you are not negotiating in good faith.  

Bottom line: Mediation is not the answer for every charge, but in some instances, it can resolve a complicated problem quickly and confidentially.  

 

 

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by M. McClure on Jan 30, 2010 at 3:41 PM

Title VII prohibits gender discrimination based on appearanceWithout being told by their lawyers, most employers know that they shouldn't fire an employee because she's not "pretty." Some employers need a little additional coaching. 

In 1989, the US Supreme Court found that gender stereotyping was a violation of Title VII.  In Price Waterhouse v. Hopkins, the Supreme Court considered whether gender stereotyping disadvantaged a woman with a masculine appearance and mannerisms when compared to men. 

But, does discrimination occur when a female manager fires a female employee because she doesn't have a "Midwestern girl look"? That's just the question the Eighth Circuit recently answered in Lewis v. Heartland Inns.

In Heartland Inns, the plaintiff, Lewis, was by all accounts an excellent employee, and her supervisor recommended Lewis for a promotion to the hotel front-desk during the day shift. Lewis was in the new position for a month when a more senior manager, also female, visited the hotel. The senior manager did not believe that Lewis had the right "Midwestern girl look" for the front desk, and in the past the senior manager had stated that the Heartland staff should be "pretty," particularly at the front desk.  Upon meeting Lewis, the senior manager insisted on conducting her own interview of Lewis, although Lewis had already been in the front desk position for over a month.  

As might be expected, the interview did not go well.  The accounts of the interview varied between Lewis and the senior manager, but the result was Lewis' termination.

The Eighth Circuit reasoned that Lewis did not need to prove that she was disadvantaged in comparison to men, but instead, the court found that "the principle focus of Title VII is the protection of the individual employee, rather than the protection of the minority group as a whole." Therefore, there was no need to show that Lewis was treated poorly in comparison to men. 

Yes, this case expands the theories under which employers can be sued in the Eighth Circuit, but the rule that you should not make employment decisions based on employee's appearance really isn't news.  Unless an appearance standard is a bona fide occupational qualification (Hooters girls?), employers should just close their eyes when they make employment decisions.

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by M. McClure on Jan 16, 2010 at 8:48 AM
Filed in Discrimination | EEOC

Warning signs that the EEOC is targeting your businessThe EEOC has watched the OFCCP collect millions from employers by pursuing claims of systemic discrimination in the employers' hiring processes.  The OFCCP uses statisticians and testing specialists to uncover statistical evidence of discrimination, and this strategy has been remarkably effective for the agency. 

For the last few years, the EEOC has worked to expand individual charges into class claims, particularly in the area of failure-to-hire claims.  The EEOC will closely scrutinize any barrier to hire that the employer puts in place, such as a pre-employment tests, drug screens, or background checks. You will know that you are in the EEOC's systemic discrimination cross hairs if the EEOC issues a Request for Information (RFI) with an individual charge that requests information regarding:

  • Validation studies for pre-employment tests.
  • Hiring policy information for positions unrelated the charging party's position.
  • Background check vendors or policies.

While failure-to-hire claims are the low hanging fruit, the EEOC also looks for class claims that can be based on other seemingly neutral policies, like compensation policies. For example, if EEOC begins asking for pay data that is unrelated to the individual charge, that's a good sign that the EEOC is looking to expand the investigation outside of the individual claim. Attorneys will object to these requests as irrelevant to the charge, but the EEOC's investigative authority is broad.  The Second Circuit recently upheld the EEOC's right to subpoena nationwide records in a charged filed by an individual.  

An employer's best defense to this EEOC strategy is to get your house in order before the EEOC knocks on the door. Federal contractors who have to answer to the OFCCP are familiar with this approach and conduct self-evaluations to determine whether the company has any existing risk.  It's better to address these issues internally before a federal agency does it for you.    

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by M. McClure on Nov 13, 2009 at 12:45 PM

Prominent EEOC lawyer says pregnancy may be a protected disability under the ADAAAIt's not official yet, but pregnancy may be the newest protected disability under the amended Americans with Disability Act (ADAAA).  Although the ADAAA does not address pregnancy, the EEOC in its Questions and Answers about the proposed regulations for the ADAAA stated: "Certain impairments resulting from pregnancy, however, may be disabilities if they substantially limit a major life activity."  That statement leaves a lot of room for interpretation - enough room that employers should think carefully before denying accommodations to pregnant employees.

Christopher J. McKinney at HR Lawyer's Blog points out that the EEOC recently filed a complaint in Washington against D. R. Horton, a Fortune 500 home builder, for discriminating against an employee when it fired her after she was put on bed rest for seven months due to pregnancy related complications. McKinney is correct when he says that the fact that the EEOC brought this case under the ADAAA "speaks volumes."  

A recent Arkansas case is a good example of how a pregnancy discrimination case might be more successful under the ADAAA.  The Arkansas Supreme Court recently affirmed summary judgment for an employer in a complaint against the company for discrimination due to pregnancy complications.  In Greenlee v. J.B. Hunt, the employee experienced complications during her pregnancy that required bed rest, but she was fired because she had only worked for the company for four and a half months and was not eligible for additional leave.  The court found that employee was not fired because she was pregnant, but because additional leave was not available to her under the company policy.  

If the Greenlee case had been brought under the ADAAA (which wasn't in affect at the time of the plaintiff's termination), a court may have reasoned that the company failed to accommodate a condition that substantially limits a major life activity and allowed the plaintiff continue to trial.       

It's important to note that the proposed ADAAA regulations state that conditions that are transitory (lasting less than 6 months) will not be protected under the ADAAA.  Therefore, the ADAAA is unlikely to apply to the majority of pregnant employees.  Still, it's too soon to know how far the EEOC's theory on pregnancy as a disability will go, and the fact that the EEOC has staked out this position should give employers pause.

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