You Might Be a Redneck If—You Believe You Were Retaliated Against for Complaining About Being Called a Redneck

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

Those of a us of a certain age remember comedian Jeff Foxworthy’s routine about “You Might Be A Redneck If….” Now a case out of Georgia cautions us that if an employee complains that another employee has called him a redneck/hillbilly, the employer may need to take that complaint seriously. [Bland v. Sam’s East, Inc. , M.D. Ga., No. 4:17-CV-190 (CDL), 1/9/19 ].

Joshua Bland, a white tire technician employed by Sam’s Club, sued his employer claiming, among other things, that he was terminated for complaining to his supervisor that another employee, Edgar Cornell Robinson, who is African-American, called him a “dumb redneck/hillbilly” during a very heated argument at work but was not disciplined for doing so.

When Bland and Robinson were scheduled to work together a couple of days after their argument, Bland was not happy and spoke with their supervisor. Bland argued that he felt Robinson should have been disciplined for calling him a redneck/hillbilly because Bland would have been fired immediately if he had used the “N word” during his confrontation with Robinson. (Whether those two different statements are, in fact, equivalent, is an argument for another day). The employer claimed that during this conversation, Bland acted aggressively toward his supervisor and was rude and disrespectful, and Bland was terminated the next day. Bland claims otherwise; he alleged that he was calm and respectful. This set up a dispute of material facts that caused the judge to deny summary judgment to the employer.

A jury will now decide whether Bland was terminated for his aggressive behavior toward his supervisor or because he complained about what he perceived as race-based favoritism toward Robinson.

The takeaway: When an employee makes a complaint of discrimination or harassment, he or she is protected from retaliation regardless of whether the complaint itself has any merit. So here, Bland just had to show that had a good faith, reasonable belief that he was complaining about discrimination when he complained that Robinson was not disciplined for calling him a “dumb redneck/hillbilly,” and Bland was then protected from retaliation because he made that complaint. Therefore, an employer has to be extra cautious when taking any disciplinary action that is close in time to a complaint.

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.

Some Things Are Better Left Unsaid, At Least In An Email

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

A case out of Pennsylvania deals with an issue that keeps HR professionals up at night: emails giving direction to a supervisor with regard to handling the discipline of a long-time employee. In these emails, the HR manager advised the employee’s supervisor supervisor to follow every step of the company’s progressive discipline policy, even though company policy did not require him to do so. The HR manager also said that because the employee in question had been working for the company for more than 20 years and was in the “over 40 protected class,” all steps should be taken to avoid the risk of “a situation where this [could] potentially drag out longer with complications.”

The employee, who was eventually terminated, filed a lawsuit for age and disability discrimination. In that lawsuit, the employee’s attorney argued that the HR manager’s email was direct evidence of age-related bias. [In a discrimination case, direct evidence of discrimination is extremely harmful to the employer because it essentially shifts the burden of proof.]

The Court rejected that argument, instead finding that the emails showed that the employer was trying to avoid creating grounds for a potential age discrimination claim by the employee by skipping a step in its progressive discipline program. The Court also found that the employee could not prove that she was terminated because of her age or disability. Rather, she was terminated due to documented problems with her job performance.

The takeaway: There is a big evidentiary gap between acknowledging that an employee is over the age of 40 and proving that such knowledge equals discriminatory motive. Nevertheless, some things are better left out of an email or written communication (that is not covered by attorney-client privilege), and saying that “Employee is in a protected class and might sue us if we are not careful” is probably one of them. Although the Judge did not find the email in question to be direct evidence of discrimination, the employer had to expend resources fighting that argument. Sensitive matters such as possible legal action by an employee should be confined to written communications with counsel.

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.

©2018 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.

 

“You Can’t Teach an Old Dog New Tricks,” and Other Ageist Comments

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

In the U.S., there are projections that the number of Millennials may soon exceed the number of Baby Boomers. Millennials, whom are defined as ages 20 to 35 in 2016, numbered 71 million, and Baby Boomers (ages 52 to 70) numbered 74 million. Millennials are expected to overtake Baby Boomers in population in 2019 as their numbers swell to 73 million and Boomers decline to 72 million. Generation X (ages 36 to 51 in 2016) is projected to pass the Baby Boomers in population by 2028.

In the meantime, many of the massive Baby Boomer generation keep working, and all of them are old enough to be covered by the Age Discrimination in Employment Act (ADEA) (as are some Generation Xers). That means that all of them are protected against discrimination on the basis of age. So this means that when your company is conducting anti-harassment and anti-discrimination training, make sure that everyone, especially managers and supervisors, understand that negative comments about an employee’s age are among the behaviors that are not tolerated.

A subsidiary of Time Warner Cable learned how expensive an ageist comment can be. In Westmoreland v. TWC Admin. LLC , 2018 BL 145052, W.D.N.C., No. 5:16-cv-00024, the plaintiff, Glenda Westmoreland was in her 60s when she was terminated by her employer TWC Administration LLC, ostensibly because she asked a subordinate to falsify a document. Westmoreland alleged that she was discriminated against, and the case was eventually tried to a jury (twice, due to a mistrial in the first trial). At trial, the jury heard testimony that the manager who fired Westmoreland told her to “go home and take care of those grandbabies.” The jury also saw or heard evidence that Westmoreland had a stellar performance record prior to the document falsification charge and that TWC could have imposed discipline short of termination for the infraction. In short, that ageist comment from the manager completely undermined the company’s non-discriminatory justification for Westmoreland’s termination.

Pro tip: During any termination meeting, stick to the facts supporting the termination and avoid any unnecessary comments that might refer to the employee’s age, sex, disability, race, or any other protected characteristic. Seems obvious, but as the case above illustrates, it may be easier said than done.

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

©2018 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.

 

Title VII Prohibits Discrimination Against Transgender Workers, Says Appeals Court

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

In another example of a federal appellate court using an expansive definition of the word “sex” (for another, see this blog post), the Sixth Circuit Court of Appeals ruled that Title VII’s prohibition of discrimination “on the basis of sex” includes discrimination based on gender identity or because the person is transitioning between genders. (EEOC v. R.G. &. G.R. Harris Funeral Homes, Inc., 6th Cir., No. 16-2424, summary judgment reversed 3/7/18).

This case involves Aimee Stephens (formerly known as Anthony Stephens), who was born biologically male. While living and presenting as a man, she worked as a funeral director at R.G. & G.R. Harris Funeral Homes, Inc. Stephens was terminated from the Funeral Home by its owner and operator, Thomas Rost, shortly after Stephens informed Rost that she intended to transition from male to female and would represent herself and dress as a woman while at work. Stephens filed an EEOC Charge alleging sex discrimination. An interesting fact that came out of the investigation of Stephens’ EEOC Charge was that the Funeral Home provided its male public-facing employees with clothing–at no cost to the male employees–that complied with the company’s dress code while female public-facing employees received no such allowance. This is the kind of low-hanging fruit that will definitely get the EEOC’s attention.

The court below granted summary judgment to the Funeral Home and dismissed the case. The Sixth Circuit reversed, finding that this case was controlled by the U.S. Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228 , 109 S. Ct. 1775 , 104 L. Ed. 2d 268 (1989), which held that discrimination based on a failure to conform to stereotypical gender norms is a form of sex discrimination prohibited by Title VII.

Moreover, the Sixth Circuit expressly held that that discrimination on the basis of transgender and transitioning status violates Title VII. The Court also rejected the Funeral Home’s owner’s argument that compliance with Title VII’s prohibition of discrimination against transgender employees substantially burdened his religious practice. The owner was concerned that permitting Stephens to represent herself as a woman would cause him to “violate God’s commands” because it would make him “directly involved in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift. Nope, said the Court: “as a matter of law, bare compliance with Title VII—without actually assisting or facilitating Stephens’s transition efforts—does not amount to an endorsement of Stephens’s views.”

This is a significant decision, and we will wait and see if other Circuits will embrace this interpretation of Title VII. Employers should be watching these developments closely.

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

©2018 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.

 

 

 

Appeals Court Rules that Title VII Covers Discrimination Based on Sexual Orientation; Sets Up Possible Showdown at U.S. Supreme Court

By Kathleen Jennings (kjj@wimlaw.com)

Earlier this week, the Second Circuit Court of Appeals (covering New York, Connecticut and Vermont), in an en banc decision, ruled that Title VII’s prohibition on discrimination on the basis of sex extends to discrimination based on sexual orientation. (Zarda v. Altitude Express, Inc., 2d Cir., No. 15-03775, opinion 2/26/18).

“Sexual orientation discrimination—which is motivated by an employer’s opposition to romantic association between particular sexes—is discrimination based on the employee’s own sex,” the appeals court said in an opinion by Judge Robert Katzmann.

This decision reversed one by a three-judge panel of the same court. The case drew a lot of interest: a group of 50 companies and organizations—including Microsoft Corp., Alphabet Inc.’s Google and Viacom Inc.—filed briefs arguing discrimination based on sexual orientation should be illegal. On the other side, the Trump administration supported the employer and argued against the protection of sexual orientation from discrimination under Title VII. Attorney General Jeff Sessions has been critical of the decision.

This is the second Appeals Court (the Seventh Circuit is the other) to find that discrimination on the basis of sexual orientation is covered by Title VII. However, the Eleventh Circuit Court of Appeals (covering Georgia, Florida and Alabama) ruled last year that Title VII does not cover discrimination on the basis of sexual orientation. A request for the U.S. Supreme Court to hear the Eleventh Circuit case was denied. Nevertheless, there is an obvious split among the Circuits on this issue, and the U.S. Supreme Court is the place to resolve these types of splits, so stay tuned!

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

©2018 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 Role of Salary History in Pay Discrimination

By Kathleen Jennings (kjj@wimlaw.com)

A recent decision form the Eleventh Circuit of Appeals shows us that an employer cannot rely on salary history as a defense to a claim that it paid a female employee consistently less money than a male predecessor in the same position. (Bowen v. Manheim Remarketing, Inc., 11th Cir., No. 16-17237 (2/21/18)).

Manheim hired Qunesha Bowen as an automobile detailer, and three years later, the assistant general manager promoted her to arbitration manager. Bowen replaced a male arbitration manager. Manheim paid that male predecessor $46,350 during his first year as arbitration manager, but the assistant general manager and general manager set Bowen’s starting salary at $32,000. Bowen’s salary did not reach $46,350 until her sixth year as arbitration manager.

Bowen offered documents and testimony showing that, although she was an effective arbitration manager, her salary for a few years was below the minimum salary for arbitration managers and it was consistently well below the midpoint salary for arbitration managers. In response, Manheim asserted that factors other than sex—prior salary and prior experience—justified the pay disparity between Bowen and her male predecessor. The predecessor worked for Manheim for six years before his promotion to arbitration manager, he had prior managerial and mechanical experience, and he earned $46,350 per year at Manheim before the promotion. In contrast, Bowen worked for Manheim for only three years before her promotion to arbitration manager, she had limited prior managerial and mechanical experience, and she earned around $26,000 per year at Manheim before the promotion.

The District Court granted summary judgment to Manheim, but the Eleventh Circuit reversed that decision. The Eleventh Circuit held that a jury could find that Manheim failed to satisfy its heavy burden of showing that sex provided no basis for the disparity. The Court noted that Manheim did not simply pay Bowen’s male predecessor a much greater starting salary; it set the predecessor’s salary near the midpoint of the compensation range for arbitration managers but consistently set Bowen’s salary at the bottom of the range. A jury could find that prior salary and prior experience alone do not explain Manheim’s disparate approach to Bowen’s salary over time. Most notably, the Court stated that once Bowen established herself as an effective arbitration manager, prior salary and prior experience would not seem to justify treating her different than the predecessor.

There was some especially damaging evidence of sex discrimination at Manheim that was offered in the form of an affidavit form Manheim’s human resources manager, Mikiya Peoples. Peoples’ affidavit testimony established that sex-based pay disparities were common at Manheim, that the managers refused to remedy the disparities, and that the managers repeatedly exhibited an unwillingness to treat women equally in the workplace.

The role of salary history in perpetuating gender discrimination in pay is being hotly debated. To date, California, Oregon, Massachusetts, Delaware, New York City, San Francisco, and Puerto Rico have all enacted laws banning employers from asking about a job applicant’s salary history. Know the law of your jurisdiction before you ask candidates about salary history.

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

©2018 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.

Once again, Retaliation is the Most Frequently Filed Charge With EEOC

By Kathleen Jennings (kjj@wimlaw.com)

The EEOC released its fiscal year 2017 charge data, and once again, retaliation tops the list as the most frequently filed charge. Next on the list are are race, disability, and sex. Specifically, the charge numbers show the following breakdowns by bases alleged, in descending order:

  • Retaliation: 41,097 (48.8 percent of all charges filed)
  • Race: 28,528 (33.9 percent)
  • Disability: 26,838 (31.9 percent)
  • Sex: 25,605 (30.4 percent)
  • Age: 18,376 (21.8 percent)
  • National Origin: 8,299 (9.8 percent)
  • Religion: 3,436 (4.1 percent)
  • Color: 3,240 (3.8 percent)
  • Equal Pay Act: 996 (1.2 percent)
  • Genetic Information: 206 (.2 percent)

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

84,254 workplace discrimination charges were filed with the EEOC nationwide during fiscal year (FY) 2017. This is down from 91,503 charges of workplace discrimination filed in fiscal year 2016.

The EEOC also received 6,696 sexual harassment charges and claims that it obtained $46.3 million in monetary benefits for victims of sexual harassment. We expect the number of sexual harassment charges to increase in 2018 due to increased public awareness of sexual harassment.

Why is retaliation the most filed charge? For starters, it is very difficult to prevent an employee from claiming that he or she has been retaliated against after he or she has made a complaint or filed a charge of discrimination or harassment. From that point forward, that employee is likely to perceive anything bad that happens as retaliation for making that complaint or filing that charge, even if it isn’t. Any writeup, any poor performance evaluation, change in schedule, or even something as seemingly minor as moving an employee’s desk, even if completely justified, will be perceived as retaliation if it occurs after the employee has made a complaint or filed a charge.

Although an employer often cannot prevent an employee from alleging retaliation, it can take measures to build a strong defense to such a claim. Document the reasons for the action. Do not let a supervisor who is accused of harassment or discrimination be the sole decisionmaker for actions taken against the employee who made the complaint. At a minimum, add a level of review by another supervisor or manager or an HR professional. If there is a concern that an action may be considered retaliation, consult with legal counsel.

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

©2018 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.