I. TITLE VII

Why Can't You Hear What I'm Not Saying? Title VII's opposition clause prohibits employers from retaliating against employees who oppose discriminatory practices. In most cases, employees claiming an employer retaliated against them for opposing discriminatory practices received an adverse employment action after expressly complaining to the employer about their practices. Interestingly, the Ninth Circuit determined that an employee does not have to explicitly tell the employer that he or she is opposed to discriminatory practices. An employee's opposition can be inferred by his or her conduct.

The plaintiff in the case was responsible for supervising and hiring court clerks. One of the court clerks she supervised had prevailed in a Title VII suit against their employer, in which she claimed she had not been promoted because of her race. Approximately four years later, the court clerk applied for an available senior court clerk position. When the plaintiff was preparing to recruit the applicants for the position, the human resources director advised the plaintiff to be "ready for a lawsuit when we don't hire" the court clerk who previously sued for racial discrimination. The human resources director also instructed her to document every incident or problem with the court clerk. The plaintiff refused to do so since she had not been instructed to do so before with any other employee during the hiring process.

After interviewing the candidates, the interviewers, including the plaintiff, concluded the court clerk interviewed the best, was the most qualified for the position and should be promoted to the senior court clerk position. However, when recommended for the position, the human resources director stated that she would not be a good senior court clerk and that, if she were to be promoted, problems would arise between her and her previous supervisor because of the lawsuit. The plaintiff responded that she could not justify not promoting her. Eventually the human resources director decided that the clerk could work in the senior court clerk position for two months under probation status. During this probationary period, the plaintiff was also placed on an extended probation because of "needed improvement" in attendance and data analysis. The plaintiff wrote a memo addressing the reasons for her probation and problems she encountered since she first started her job, including the incidences regarding the selection process of the senior court clerk. Soon thereafter, the plaintiff was terminated.

The plaintiff sued the employer under Title VII, alleging that the employer retaliated against her for refusing to facilitate unlawful retaliation against the court clerk. Even though the plaintiff did not outright say to the employer that she thought that it was discriminating against the court clerk and she opposed this, the Ninth Circuit held that a reasonable jury could conclude that her refusal to go along with the employer's decisions not to hire the clerk and her references in her memos to the problems with the hiring process were intended to convey her disapproval of the employer's unlawful retaliation against the court clerk. Furthermore, a reasonable jury could conclude that the employer unlawfully retaliated against her when it placed her on extended probation and terminated her.

Mrs. Doubtfire-fighter. Recently, the Sixth Circuit decided whether under Title VII a transsexual could assert a valid sex discrimination claim. The plaintiff, a firefighter born a male, was diagnosed with Gender Identity Disorder. After his diagnosis, he began "expressing a more feminine appearance." His co-workers began questioning him about his appearance and commented that his look was not "masculine enough." Because of their inquiries and comments, the firefighter informed his supervisor of his diagnosis and treatment, which included making a complete physical transformation from male to female. Upon learning about the firefighter's disorder, allegedly, city officials conspired to have the firefighter's employment terminated. The firefighter learned of their plan and filed an EEOC claim. Four days after he received his "right to sue letter" from the EEOC, the Chief of the Fire Department suspended him based on an alleged infraction of Fire Department Policy.

The firefighter then filed a Title VII claim in federal district court, asserting his employer discriminated against him because of his transsexualism and gender non-conforming behavior and appearance. The district court dismissed his claims, holding "Title VII does not prohibit discrimination based on an individual's transsexualism." On appeal, the court did not recognize transsexuals as a protected class under Title VII. The Sixth Circuit found, however, that the firefighter did not fail to state a Title VII claim because he was a transsexual. Looking to the Supreme Court's decision in Hopkins v. Price Waterhouse, which held that Title VII prohibits "sex stereotyping," i.e., discrimination against an individual because his/her conduct or appearance does not conform to stereotypical gender norms, the court stated that "after Price Waterhouse, an employer who discriminates against women because, for instance, they do not wear dresses or makeup, is engaging in sex discrimination because the discrimination would not occur but for the victim's sex … it follows, an employer who discriminates against men because they do wear dresses and makeup, or otherwise act femininely, are also engaging in sex discrimination because the discrimination would not occur but for the victim's sex." In reversing the district court ruling, the court held that a plaintiff's label, as "transsexual" is not fatal to a sex discrimination claim where the victim has suffered discrimination because of his or her gender non-conformity.

Overloaded Mouth Trumps Long Fingernails. A former employee sued her former employer for unlawful retaliation under Title VII. At trial, the former employee demonstrated the former employer provided negative recommendations to a prospective employer in retaliation for the employee's prior discrimination complaints. The jury found in favor of the employee and awarded her $25,000. However, the trial court rejected the verdict because it found she did not prove that due to the negative references she suffered an adverse employment action. According to the trial court, in order to make this showing, the employee had to prove that she would have received the prospective job but for the employer's negative references.

The Tenth Circuit held that the district court erred in requiring the former employee to meet this standard. The Tenth Circuit lessened the employee's burden of proof, holding that in order to prove an adverse action occurred because of negative references, the employee must only show that the negative references would likely preclude her from obtaining employment with the prospective employer. In this case, the prospective employer testified that negative information would have disqualified a candidate for the position (but the negative references were not the reason for its decision not to hire the former employee – the prospective employer claimed that the plaintiff was not hired because her long fingernails would have interfered with her typing speed!). The Tenth Circuit found the former employee proved that she suffered an adverse employment action due to the former employer's negative references. Accordingly, it reinstated the $25,000 jury verdict in favor of the employee.

No Peeks Allowed. Generally in Title VII cases, courts have held that an employee's subjective feelings that he or she has been discriminated against are not sufficient to trigger Title VII liability. Contrary to this widely held proposition, a federal district court in Illinois afforded a significant amount of weight to a waitress' subjective feelings that she was being subjected to a sexually hostile work environment, which led to its decision that she could have her day in court.

The waitress, who worked for a nationwide restaurant chain, claimed that when she would go into the kitchen to pick up food orders, the kitchen staff would make sexually degrading comments in Spanish. It was undisputed that the waitress did not understand what the workers were saying, as she did not speak Spanish, but she felt as if they were disrespecting her because they would whistle and laugh after they made comments. The employer argued to the court that the comments made in Spanish should be disregarded because the waitress did not know what they were saying. The court disagreed. The court stated that "she subjectively understood the comments to be sexually degrading [and] a reasonable jury could find that the whistling and accompanying gestures were offensive in any language."

The waitress also claimed that holes in the walls of the designated room where she would change into her uniform contributed to a sexually hostile work environment. She informed her employer of the holes in the changing room and the employer patched them. The holes reappeared and the employer again repaired those holes. The waitress admitted that she did not know whether someone watched her as she undressed and did not know who created the holes, but she felt as though someone watched her as she undressed in the changing room. Even though there was no evidence that anyone ever watched her undress, the court decided that a reasonable jury could find that the appearance and recurrence of the holes could have contributed to a hostile work environment.

Harassment Victims Cannot Simply Tell Their Employers To "Take This Job And Shove It." In Ellerth and Faragher, two Supreme Court cases of the late 90s, the Supreme Court determined that employers are liable for harassing conduct when the conduct results in a tangible employment action (i.e., hiring, firing, failing to promote, reassigning with significantly different responsibilities). How-ever, these decisions did not indicate whether a constructive discharge also constituted a tangible employment action. Consequently, there has been considerable division among many federal courts as to whether a constructive discharge was a "tangible employment action," which would result in employer liability under Title VII.

The Supreme Court has recently settled the debate, holding that where a supervisor's "official act" precipitates the "constructive discharge," the employer is automatically liable. The Supreme Court defines an "official act" as an employer-sanctioned adverse action officially changing the employee's employment status or situation. The court cites examples of an "official act" as a humiliating demotion, extreme cut in pay, or transfer to a position in which the employee would face unbearable working conditions.

When there has been no "official act" committed by a harassing supervisor and the employer has an anti-harassment procedure in place, the employee must utilize the internal complaint procedures before they can walk off the job. If the employee fails to avail him or herself to the complaint procedure, the employer will not be held liable for the harassing conduct.

In short, the Supreme Court has determined that a constructive discharge can be a "tangible employment action" in certain circumstances. More noteworthy is the fact that the Supreme Court strongly reaffirms the Ellerth/Faragher principles encouraging employers to establish harassment complaint procedures – even in constructive discharge cases. If the employee must complain instead of resigning, the employer has the opportunity to change the working conditions before they become intolerable. The bottom line continues to be that employers must have effective and accessible harassment complaint procedures in place.

II. ADA

Leave Of Absence Versus Accommodating A Disability - Different Tests. An employee for a major chain of retail stores suffered from near total kidney failure. Because of her condition, the employee self-administered a 45-minute dialysis process every four to six hours daily. At the start of her treatment, she was allowed to perform the dialysis at work. Also, around this time, she suffered a fall at work and took a short leave of absence. When she returned to work she informed her employer that she would need a reasonable accommodation in order to perform her duties as a baker/wrapper. However, the employer decided to remove her from the position and proposed that she take a position as a greeter. The employee then requested she be able to perform her dialysis at work. Instead of agreeing to this accommodation, the employer advised her to take disability leave as an accommodation, which she did. The employer had a policy providing employees up to one year of leave.

While on disability leave, the employee underwent a kidney transplant and was unable to work for five and a half months, until March 30, 2000. The employee's disability leave expired during the time she was recuperating from her kidney surgery. On March 15, 2000, the employee was terminated because she was unable to return to work within a year. The employee sued the employer under the Americans with Disabilities Act (ADA), alleging that her employer failed to accommodate her disability and terminated her because of her disability. The employer argued that the employee was not disabled, as she was not "significantly limited in a major life activity." The employee countered this argument by stating that the "complete failure of her kidneys substantially limits her ability to perform the major life activities of eliminating body waste and cleaning her blood." The Third Circuit agreed that cleansing and eliminating waste from the blood is a major life activity.

There are even greater lessons to be gleaned from this case. Regrettably for the employer in this case, it applied to the disabled employee a "no fault" leave policy under which an employee can be terminated after having been on leave for a certain period of time and unable to return to work once the leave has expired. In situations like this one where the employee needs additional leave as a reasonable accommodation for a disability, the employer must consider the reasonableness of the request and may need to modify its "no fault" leave policy to provide the employee with the additional leave (this modification constitutes a reasonable accommodation). But remember: an employer is required to provide only a reasonable accommodation. Therefore, in modifying its leave policy, the employer needs only to extend the leave for what would be a reasonable amount of time in light of the surrounding circumstances. An employer does not have to modify its leave policy if: 1) it can show another effective accommodation that would enable the person to perform the essential duties of his or her position; or 2) granting additional leave would cause the employer an undue hardship.

III. USERRA

ATTENTION!On September 20, 2004, for the first time since the enactment of the Uniformed Services Employment and Re-employment Act of 1994 (USERRA), the Department of Labor published proposed regulations that interpret this Act. USERRA was passed to protect the rights of individuals who voluntarily or involuntarily leave employment positions to undertake military service. USERRA is commonly known as the law that safeguards a service member's right to employment when he or she returns to civilian life. The proposed regulations explain the obligations of present and prospective employers of individuals who are past, present, and future members of the uniformed services. For example, the proposed regulations mandate that these individuals are protected against discrimination and retaliation because of military service. Furthermore, they state that an employee is entitled to be absent from a particular position of employment because of service in the uniformed service for up to five years and still retain re-employment rights with respect to his or her pre-service employment.

If you would like to know more information about these proposed regulations and your obligations with regard to the re-employment of our service men and women, give us a call.

IV. ARBITRATION

Troll-Like Conduct Is OK? Being able to interact with the public and other employees is an important aspect of many jobs. However, difficulty relating with people is not a justifiable reason for discharging an employee one arbitrator recently decided. The discharged employee was mentally disabled and worked as custodian for a middle school and elementary school for approximately two and a half years. During this time, it was reported that on one occasion he yelled at a parent who walked on the floor after he had just finished washing it and complained about children leaving scuffmarks on the floors after cleaning them. He was accused of asking a teacher to leave the room so that he could clean under the desk in which she was sitting. Furthermore, he was accused of calling a co-worker a derogatory name in front of a parent and child. There was also an incident where the custodian quarreled with the building principal in front of parents and other staff. Often times, the employee would become "upset" when he was asked to change his routine. For example, when he was asked to complete additional tasks in the middle of performing duties, he would become extremely nervous and would raise his voice. The custodian's performance reports indicated that he received an unsatisfactory rating because of his inability to get along with the public and other employees. Because of his failure to improve his relationships with the public and employees, the employer terminated him.

The union argued that the employer gave the custodian mixed signals by expressing dissatisfaction with his work but at the same time promising him that it would work with him so he could succeed as an employee. At no time, did the custodian have reason to believe his job was in jeopardy. Therefore, the employer did not have just cause to fire the custodian. The arbitrator agreed. There was no evidence that the custodian did not perform the primary duties of his job, had hurt anyone or did any damage. Furthermore, the employer was aware of the custodian's limitations with respect to his communication skills – this problem was not something that magically appeared. According to the arbitrator, it seemed as if "certain people simply ran out of patience [and] the way that they had counseled the grievant had not worked to their satisfaction … rather than try a different approach, or modify his job duties to minimize the risk that he might offend someone, they discharged him." The arbitrator noted that "the worst thing about the custodian was that he was peculiar," which was not a sufficient justification for his discharge. Lesson: Don't Send Mixed Messages?

V. COBRA

New Regulations. The Department of Labor has issued final regulations regarding new notice obligations involving COBRA rights and benefits. Under the DOL's final regulations covered employers, covered administrators, covered employees and qualified beneficiaries all have new duties regarding COBRA notification. The applicable date to be in compliance with these new regulations is approaching fast. COBRA notice obligations must comply with the new regulations on the first day of the first year plan beginning on or after November 26, 2004. If you need assistance making sure your COBRA notice procedures are in compliance with the new regulations, give us a call.

BEFORE THE NLRB

Union Organizational Activity Since Our Last Newsletter. Six petitions for certification have been filed by unions. One petition for de-certification has been filed by management. Three elections have been held, none of which have been won by management.

The Remnants Of The Clinton Board Still Exist. What seemed to be an employer's legitimate response to an employee's childish misconduct turned out to be a violation of the Labor Management Relations Act (LMRA). The employer became aware that while on the picket line, a striker had squirted liquid out of a water pistol at a security guard, which according to the guard caused a stinging sensation in the guard's eyes that caused him to go to the hospital. Based on a good faith belief that the striker had committed serious misconduct, the employer terminated him. The striker admitted to squirting the security guard with the water pistol, but testified that it was filled with drinking water. According to the striker, he had used the pistol to squirt various people on the picket line, including fellow strikers, and also drank the water from the pistol himself. He squirted the security guard because he was following him around with a video camera and he thought that the security guard was "singling him out." Accordingly, he squirted the security guard only with the intent to hit the lens of the video camera but accidentally hit the security guard in the eye with the water.

The two Democrats on the Board, in a two to one decision, found that the employer was mistaken in its good faith belief about the type of liquid used to squirt the security guard and that the striker's discharge violated the LMRA. Moreover, his conduct was not sufficient enough to disqualify the striker from further employment. According to the NLRB "the misconduct [had to have been] such that, under the circumstances, it may reasonably tend to coerce or intimidate employees in the exercise of rights protected under the [LMRA]." In light of these circumstances, the NLRB found "it was unreason-able to conclude that any person who witnessed the striker squirting water at the security guard and other strikers would have likely felt coerced or intimidated by his behavior." Therefore, the NLRB ruled there was no lawful basis for discharging the water-pistol packing employee and the employer violated the LMRA in doing so. The Board also reinstated the employee.

However, what about company employees who work behind the picket line? Are they not entitled to be free from coercion or intimidation? Would they not be concerned about liquid being squirted at them by an agitated picket? Is it only the strikers the NLRB are supposed to protect? Unfortunately, this decision leaves employers in a compromising position: being forced to allow strikers to engage in disruptive and inappropriate behavior instead of disciplining them in fear of violating the law. Consequently, the Board's decision triggers a slippery slope of inappropriate behavior to be committed by strikers without con-sequence.

A Word To The Wise. While Union activities are not at the forefront of management concerns these days, there is activity out there and one of the Union's main tools is surprise attacks. You need to consider what to do in the event of such an attack. One of our long time friends, Cal Atwood, is the co-author of a book that might just give you the knowledge necessary to recognize the telltale signs of pending problems and some ammunition on what to do and not do. Combating Union Organizing by Caleb Atwood and Bernard Koehne (Silvercreek Publishing Co, 193 pp., $29.95. Available via stayunionfree.com on the internet). Mark Mix, President of the National Right To Work Legal Defense Foundation says "Combating Union Organizing is very, very impressive. Every human resource person in the country should have it."

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The Quarterly Update is a newsletter providing recent items of interest to our clients in the various areas of employment law. While the Update is to alert you to potential new problem areas or changes in the law, it is not to be considered legal advice or a legal opinion. Such can only be given after careful consideration of the facts unique to any situation. The contents of this newsletter are copyrighted and may not be used without express written consent of Neel & Hooper, P.C.

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