EEOC FY 2019 Enforcement Data: Retaliation Continues to Be the Most Popular Charge

By Kathleen J. Jennings (kjj@wimlaw.com)

Today, the U.S. Equal Employment Opportunity Commission (EEOC) released its FY 2019 enforcement and litigation data. As in past years, retaliation continues to be the most frequently filed charge, being alleged in over half of the charges filed.

Second place belongs to charges alleging disability discrimination. On that front, in recent years, the EEOC has been very aggressive in pursuing employers that discharge disabled employees who have exhausted FMLA and paid leave without making any effort to pursue the reasonable accommodation process.

The EEOC also states that it received 7,514 sexual harassment charges – 10.3 percent of all charges, and a 1.2 percent decrease from FY 2018. Interesting.

Specifically, the charge numbers show the following breakdowns by bases alleged, in descending order:

•    Retaliation: 39,110 (53.8 percent of all charges filed)

•    Disability: 24,238 (33.4 percent)

•    Race: 23,976 (33.0 percent)

•    Sex: 23,532 (32.4 percent)

•    Age: 15,573 (21.4 percent)

•    National Origin: 7,009 (9.6 percent)

•    Color: 3,415 (4.7 percent)

•    Religion: 2,725 (3.7 percent)

•    Equal Pay Act: 1,117 (1.5 percent)

•    Genetic Information: 209 (0.3 percent)

These percentages add up to more than 100% because some charges allege multiple bases.

And for those who are interested, the EEOC also breaks down charges filed by state.

Kathleen J. Jennings is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

The NLRB Has Gifted Employers Some Very Nice Decisions This December

By Kathleen J. Jennings (kjj@wimlaw.com)

December has been a busy month for the National Labor Relations Board (NLRB), which has been putting some very nice presents under the tree for employers. These gifts have come in the form of rulings that have turned back many Obama-era rules or precedents.

  • On December 12, 2019, the NLRB ordered an agency judge to approve a settlement that, among other things, absolved McDonald’s Corp. of any responsibility as a joint employer for labor violations by its franchisees. This is considered a major victory for employers in the franchise space, and it paves the way for anticipated rules governing the joint employer relationship from the Department of Labor, the EEOC and the NLRB. We are looking for some of these to be announced in January 2020.
  • On December 13, 2019, the NLRB announced changes to union election procedures that are likely to slow down that process. One of the major changes is that all disputes concerning unit scope and voter eligibility – including issues of supervisory status – will generally be litigated at the pre-election hearing and resolved by the regional director before an election is directed. In other words, the election can be delayed while the parties litigate and resolve issues concerning unit scope and voter eligibility. Furthermore, the NLRB announced that some time periods for actions have been enlarged, and all time periods that apply to election rules will be calculated in business days, rather than calendar days, as had been previously done. During the Obama Administration, the NLRB issued new rules that were often characterized by employers as “quickie election” rules because they greatly sped up the union election process, which employers generally considered to be an advantage for the unions.
  • On December 17, 2019, the NLRB ruled that businesses can ban workers from using company email for union and other organizing purposes. In that decision, which overruled precedent from the Obama era, the Board stated that “employees have no statutory right to use employer equipment, including IT resources, for Section 7 purposes.” (Caesars Entertainment Inc. , N.L.R.B., Case 28-CA-060841, decision 12/17/19).
  • Also on December 17, 2019, the NLRB ruled that employer rules that require employees to maintain confidentiality of workplace investigations into matters such as sexual harassment are lawful. (Apogee Retail , N.L.R.B., Case 27-CA-191574, Decision 12/17/19). This overruled an Obama-era case that required employers to justify such confidentiality policies.
  • On December 23, 2019, the NLRB held that Wal-Mart’s dress code policy limiting the wearing of union insignia was lawful. (Wal-Mart Stores Inc. , N.L.R.B., No. 13–CA–114222, 12/16/19).

The current NLRB’s Republican majority means that we can expect to see more pro-employer rulings in 2020.

Happy New Year to all of our readers!

Kathleen J. Jennings is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

OK Boomer—Are You Going to Sue for Age Discrimination?

By Kathleen J. Jennings (kjj@wimlaw.com)

As “OK Boomer” becomes a rallying cry for the younger generations, employers need to think twice about allowing that kind of banter in the workplace. Why? Because it could be evidence of age discrimination.

A recent case involving a tech startup illustrates how some comments by younger workers may be perceived to be evidence of age discrimination. (Robillard v. Opal Labs, Inc., D. Or., No. 3:16-cv-00780-AC, 12/17/19). Greg Robillard, at the ripe old age of 41, was hired as Lead Enterprise Engineer by Opal Labs. Robillard alleges that during his employment with Opal, the (younger) Senior Director of Engineering, said “thanks dad” when referring to Robillard, and that others at Opal referred to him as “old Greg,” and “Dad.” Robillard understood the terms to be perjorative, dismissive, and used to undercut him. The (younger) Vice President of Product referred to a job applicant as “some old guy in his forties,” and criticized others for referring to their computer displays as “monitors” as opposed to “screens.” Robillard also recalled other Opal employees posting a meme depicting Steve Buscemi dressed as a high schooler on Opal’s internal messaging system called “Slack.” Also, executive team members described Facebook as an activity for old people.

Robillard was eventually terminated, purportedly for poor job performance. He was replaced by a 32-year-old. He sued, asserting a number of claims including age discrimination, retaliation, and failure to pay overtime wages. Opal moved for summary judgment. The District Court granted summary judgment on the overtime claim because Robillard was an exempt employee. However, the Court denied summary judgment on the age discrimination because there were disputed issues of fact as to the reason that Robillard was terminated. However, the Court ruled that the comments alleged by Robillard were not direct evidence of age discrimination. For example, the court found the “thanks dad” statements were not overtly ageist in nature, as parents may be less than forty years old. However, these comments may nevertheless be offered by a plaintiff as evidence of discriminatory intent or animus.

The Takeaway: If any of you needed a reason to tell your employees to stop saying “OK Boomer,” here it is: all boomers are over the age of 40, so mocking the attitudes of this group could be perceived as mocking people over the age of 40—who are protected from discrimination by the Age Discrimination in Employment Act.

Kathleen J. Jennings is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

 

 

 

Dance Like Everyone Is Watching—And Taking a Video

By Kathleen J. Jennings (kjj@wimlaw.com)

It’s holiday party season, so it is time for our annual reminder that what happens at the company holiday does not stay at the company holiday; rather, it may end up in an EEOC Charge or the statement of facts in a lawsuit if you are not careful.

It is easy to forget that the company holiday is an extension of the workplace because people may be all dressed up and partaking of adult beverages. Maybe there is even some music and dancing. Nevertheless, it is important for everyone, and especially your managers and supervisors, to remember that they must conduct themselves professionally at these functions. Any harassment directed at an employee at a company function can be actionable.

And they need to remember this: everyone at the party will have a camera on his or her person. At the first sign of any inappropriate behavior, you can count on at least one partygoer to whip out a smartphone and take a picture or video. Not only will this be embarrassing, it will be evidence. So dance like everyone is watching you—because they are!

Kathleen J. Jennings is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

Do You Know What Your Managers Are Saying to Job Applicants?

By Kathleen J. Jennings (kjj@wimlaw.com)

The EEOC announced this week that the owner-operator of a Georgia Dollar General store will pay $70,000 and provide other significant relief to settle a disability discrimination lawsuit filed by the EEOC. This claim arose out of comment that a supervisor made to an applicant for a job. According to the EEOC’s lawsuit, on or about Sept. 7, 2015, Terri Mosley applied for a sales associate position at a Portal, Ga., Dollar General store, where she was a frequent shopper. When Mosley appeared for an interview, the store manager refused to interview her, stating, “I didn’t know it was you,” and told Mosley that she could not work at Dollar General “with that arm.” Mosley’s left arm had been injured in an automobile accident two years earlier.

What did the manager do wrong? An employer cannot reject an applicant who has (or appears to have) a disability without making a determination as to whether the applicant can perform the essential duties of the job applied for, with or without reasonable accommodation. A hiring manager cannot simply rely on presumptions or stereotypes about what a disabled applicant can and cannot do.

The Americans With Disabilities Act (ADA) places strict limits on employers when it comes to asking job applicants to answer medical questions, take a medical exam, or identify a disability.

For example, an employer may not ask a job applicant to answer medical questions or take a medical exam before extending a job offer. An employer also may not ask job applicants if they have a disability (or about the nature of an obvious disability). An employer may ask job applicants whether they can perform the job and how they would perform the job, with or without a reasonable accommodation.

After a job is offered to an applicant, the law allows an employer to condition the job offer on the applicant answering certain medical questions or successfully passing a medical exam, but only if all new employees in the same type of job have to answer the questions or take the exam.

Pro Tip: All managers that participate in the hiring process should be trained as to what they can ask applicants and how to lawfully handle disabled applicants. Ideally, there should be a company Human Resources professional available to provide guidance or answer questions about specific situations.

Kathleen J. Jennings is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

How To Undermine a Termination Decision With An Email

By Kathleen J. Jennings (kjj@wimlaw.com)

Today’s “email fail” comes to us from a group of physicians in Tennessee. (Babb v. Maryville Anesthesiologists , 6th Cir., No. 19-05148, 11/6/19). Paula Babb is a Certified Registered Nurse Anesthetist (“CRNA”) who had practiced anesthesiology for over a decade. In June 2015, Babb began working as a CRNA at Maryville Anesthesiologists, P.C. Babb also had a “degenerative retinal condition” that made it hard for her to read certain screens and medical records. She informed her bosses of her condition but assured them that it would not affect her ability to do her job. Her bosses were concerned. The head physician asked Babb if she had disability insurance.

Thereafter, Babb would ask other CRNAs and nurses for assistance in reading charts from time to time. Some of those folks reported these incidents back to the Babb’s bosses.

In January 2016, Babb was terminated due to two clinical errors that she was accused of making in October 2015 and January 2016. When communicating its termination decision to Babb, her employer focused exclusively on the clinical errors, and made no mention of Babb’s vision. So far, so good.

However, Babb never saw the termination coming because no one at the practice had criticized her anesthesiology techniques prior to her termination.

Even worse, after Babb was terminated, one of Babb’s fellow CRNAs sent out an email to all Maryville CRNAs that basically said that Babb was fired due her eyesight and “some other issues.” This email was written at the direction of one of the practice’s doctors (who later apparently tried to distance himself from it, unsuccessfully).

The District Court granted the employer’s motion for summary judgment, but the Sixth Circuit Court of Appeals reversed that decision. The Sixth Circuit found two particular fact disputes that precluded summary judgment.

First, there was a factual dispute as to the reasonableness of Maryville’s decision to base Babb’s termination on the two “clinical errors.” Babb had an expert witness who gave an opinion that Babb acted reasonably in the two incidents, which conflicted with the doctors’ assertion that Babb committed critical errors. It probably did not help matters that the doctors had not written Babb up for these or any other errors prior to terminating her.

Second, there was a factual dispute as to whether those clinical errors “actually motivated” Maryville to fire Babb. Here is where the Court pointed to the email sent just hours after Babb’s termination essentially stating that Maryville was firing Babb because of her impaired vision. Indeed, the Court stated that “If this kind of “smoking gun” evidence cannot get an employment discrimination plaintiff past summary judgment on the question of pretext, it is hard to imagine what could.”

The moral of this story? Never let an employee send out an email to your other employees discussing the reasons for a former employee’s termination. Moreover, managers and supervisors should not discuss the reasons for an employee’s termination with anyone who does not have an absolute need to know (such as your HR Manager).

Kathleen J. Jennings is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

30 Years Ago, the U.S. Supreme Court Told Us That Gender Stereotyping is a Form of Sex Discrimination. So It’s Not a Good Idea to Conduct Employee Training That Reinforces Gender Stereotypes.

 

By Kathleen J. Jennings (kjj@wimlaw.com)

Yesterday, the Huffington Post ran a story about a 2018 leadership training program for female executives at Ernst & Young, one of the largest accounting firms in the world. Apparently, whoever designed this training is completely unaware of U.S. Supreme Court precedent dating back to 1989, namely, the landmark case of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In that case, Ms. Hopkins was denied a partnership in the accounting firm despite her professional accomplishments. She was told that in order to improve her chances for partnership, she should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” (490 U.S. 228, 235). In other words, act more like a stereotypical woman.

The Supreme Court, in a plurality opinion, held that sex stereotyping is a form of discrimination on the basis of sex under Title VII. To that end, Justice Brennan stated that:

As for the legal relevance of sex stereotyping, we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for “‘[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.'” (emphasis added)(citations omitted).

Price Waterhouse v. Hopkins, 490 U.S. 228, 251, 109 S. Ct. 1775, 1791, 104 L. Ed. 2d 268, 288 (1989). [Note that this decision is a foundation of the argument that Title VII covers discrimination against gay and transgender employees.]

Yet, here we are 30 years later, and here are examples of the “advice” given to the Ernst & Young female executives:

  • Be “polished,” have a “good haircut, manicured nails, well-cut attire that complements your body type”. But then, a warning: “Don’t flaunt your body ― sexuality scrambles the mind (for men and women).”
  • In the list of “Invisible Rules” for men and women: women often “speak briefly” and “often ramble and miss the point” in meetings. By comparison, a man will “speak at length ― because he really believes in his idea.” Women don’t interrupt effectively like men. Women “wait their turn (that never comes) and raise their hands.”
  • Women were advised not to directly confront men in meetings, because men perceive this as threatening. (Women do not.) Meet before (or after) the meeting instead.
  • If a woman is having a conversation with a man, she should cross her legs and sit at an angle to him. She should not talk to a man face-to-face. Men see that as threatening.
  • Women should not be too aggressive or outspoken.
  • And my personal favorite: Women were also told that their brains are smaller than men’s brains, and that women’s brains absorb information like pancakes soak up syrup so it’s hard for them to focus. Men’s brains are more like waffles. They’re better able to focus because the information collects in each little waffle square.

And if it wasn’t clear enough that women needed to conform to certain gender stereotypes, before the workshop, women were also given a “Masculine/Feminine Score Sheet,” which had them rate their adherence to stereotypical masculine and feminine characteristics both on the job and outside the office. The so-called masculine traits included “Acts as a Leader,” “Aggressive,” “Ambitious,” “Analytical,” “Has Leadership Abilities,” “Strong Personality” and “Willing to Take a Stand.” The so-called feminine traits included “Affectionate,” “Cheerful,” “Childlike,” “Compassionate,” “Gullible,” “Loves Children” and “Yielding.” None of the feminine traits involved leadership ― ostensibly a focus of the training.

Needless to say, these kinds of messages are exactly what the Supreme Court characterized as discrimination on the basis of sex. In 1989.

Pro Tip: if a company wants to provide advice and training to employees on how to climb the corporate ladder, the better approach is focus on the types of skills and abilities that will lead to success, without attributing them to a particular gender. The same approach should be used in hiring, evaluations, and promotions. And most important–have a competent employment lawyer review your materials. Otherwise, it is probable that your training materials are going to be Exhibit 1 at the trial of a discrimination case.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.