Recent trends reveal that employment retaliation claims are on the rise. Further, courts are taking a hard line on offending employers accused of retaliation in employment. A review of United States Supreme Court decisions in retaliation cases reveals a remarkable degree of agreement among the Justices. Even conservative Justices who are considered supportive of business as a matter of judicial philosophy do not take kindly to retaliation against employees who have asserted workplace legal claims.
The U.S. Supreme Court has weighed in on an awaited decision in a case involving a “cat’s paw” theory of liability. In Staub v. Procter Hospital (http://case.lawmemo.com/us/staub.pdf) the Court held that “if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.”
In February 2003, North American Stainless (NAS) received notice that Miriam Regalado had filed an EEOC charge against it. Three weeks later, NAS fired Ms. Regalado’s fiancée, Eric Thompson. Mr. Thompson thereafter brought a Title VII retaliation claim against NAS in federal court in Kentucky. The trial court granted summary judgment in favor of NAS on the theory that Title VII did not allow “third party retaliation claims.” That decision was ultimately affirmed by the Sixth Circuit Court of Appeals. Earlier today, however, the U.S. Supreme Court reversed the Sixth Circuit and held 8-0 (the majority opinion was drafted by Scalia, with Kagan not participating) that Mr. Thompson’s suit could proceed even though it was not he who had engaged in protected activity under Title VII. A link to the decision is below. Bottom line — In 2006, the Supreme Court adopted a pretty broad standard for what types of employment actions could be retaliatory under Title VII. The Court has now used some of the rationale from that decision to essentially prohibit “associational retaliation.” (more…)
With a nod to the recently filed whistleblower lawsuit featuring Lane Kiffin, we have a twofer for the HR Song(s) of the Week.
The EEOC’s final regulations for the Genetic Information Nondiscrimination Act have been out for a bit- (http://edocket.access.gpo.gov/2010/pdf/2010-28011.pdf). However, we just found this clip:
As part of its stepped-up enforcement process, the EEOC has recently filed a lawsuit under the ADA stemming from an employer’s administration of an alcohol test to an employee. http://www.eeoc.gov/eeoc/newsroom/release/10-5-10.cfm .Challenging the practice of U.S. Steel to administer random breath analysis tests to probationary employees, the EEOC takes the position that such tests run afoul of the Americans with Disabilities Act. Consistent with prior EEOC guidance materials (http://www.eeoc.gov/policy/docs/medfin5.pdf), the Commission takes the position that alcohol tests are medical tests and are therefore limited by the ADA. The facts of the U.S. Steel case appear somewhat tilted against the employer in that the employee allegedly had a medical condition that caused a false positive test result – a fact borne out by a confirmatory blood alcohol test. Given that the ADA does not protect employees under the current influence of drugs or alcohol, the policy issues involved in this debate may prove interesting.
At times, I have surmised that one reason women are usually the victims of sexual harassment is that most men can’t resist the power of The Man Gene. A recent case demonstrates that some men can defeat The Man Gene and even be the victims of sex harassment. In EEOC v. Prospect Airport Services, Inc., a male employee filed a harassment claim against his employer and a female co-worker.
For a long time, an employment decision based on pregnancy has been against the law. It violates the Pregnancy Discrimination Act, which is part of Title VII of the Civil Rights Act. Apparently, it’s not as well know as I thought, or employers continue to ignore the law, at least according to the Equal Employment Opportunity Commission.
As you know by now, the Republicans will be in control of the U.S. House of Representatives beginning next year, and the Democrats will retain control of the U.S. Senate, although by a much more narrow margin than has been the case for the past two years. Since Republicans are generally regarded as more employer-friendly than Democrats, most employment lawyers may say that the result of this year’s midterm election will mean no new employment legislation. That may be true but I would remind you of what many employment lawyers said after the 2008 election.
If you review all my posts on The Man Gene (and you really should), you’ll find a few indicating that science is beginning to support the existence of such a gene. For those who still doubt, consider the recent news that scientists have discovered a liberal gene. If The Liberal Gene exists, there’s a good chance that The Man Gene does, too. Stay tuned.
Once a hot employment law issue, drug testing has been cool for quite some time. Most courts, including the U.S. Supreme Court, have ruled that there’s nothing wrong with testing for unlawful drugs, particularly in the private sector. So, for two decades, an increasing number of employers do drug testing routinely. The types of drug testing most commonly done are pre-employment, for cause or reasonable suspicion (for example, when an employee is involved in an accident at work, seems to be under the influence of something, etc.), and random.
The recent hubbub over Virginia Thomas asking Anita Hill to apologize to her husband, Justice Clarence Thomas, got me to thinking. Almost 20 years had past since the original Hill/Thomas conflict. It’s still referred to occasionally, but it hasn’t been an issue for a long time. After the substantial media coverage of Mrs. Thomas request for an apology, Thomas’ long-time former girlfriend decided to come forward with allegations that her relationship with Thomas made her aware of Thomas’ addiction to pornography. More media coverage.
Having grown up in a small town in middle Tennessee, I wasn’t exposed much to ballet. I can’t remember seeing a ballet, except perhaps on television, until after I was married. Unlike the theatre, to which I also wasn’t exposed much as a boy, I didn’t appreciate ballet for a long time. Men and women jumping around in outfits that would be banned anywhere else. I’m afraid I didn’t get it.
Under the Americans with Disabilities Act and the Americans with Disabilities Amendments Act, alcoholism is a disability. However, an alcoholic can be held to the same standards as other workers. He can be disciplined and even terminated if alcoholism interferes with work. Also, if an alcoholic employee comes to work while drinking or drunk, he can be fired.
It takes more than an allegation of horseplay to establish sexual harassment, but sometimes, it’s difficult to distinguish between the two. In Cross v. Prairie Meadows Racetrack & Casino, Inc., the Eighth Circuit Court of Appeals considered whether alleged conduct was horseplay or sexual harassment.
Rick Sanchez, a CNN daytime anchor, was fired last week for going off on Jon Stewart and people like him. He did this in a radio interview. Jon Stewart came up because Stewart has repeatedly mocked Sanchez on The Daily Show. As Sanchez continued to talk, it became obvious that “the people like Stewart” were Jews. I’m not sure Sanchez said anything that was really anti-Semitic, but he did take a shot or two at Jews during the interview.
All HR professionals know that a harassment claim must be investigated promptly and then appropriate action taken. In Moody v. East Mississippi State Hospital, decided by the U.S. District Court for the Southern District of Mississippi, an employee’s suit was dismissed, in part, for exactly that reason.
According to the Equal Employment Opportunity Commission, Muslim employees filed a record 803 religious discrimination charges for the year ended September 30, 2009. That’s up 20% over the year before. That exceeds the number of charges filed in the year after 9/11. There’s little doubt that these charges will set another record for the year ending September 30, 2010. The EEOC has taken this spike in Muslim-related religious discrimination charges seriously, filing several lawsuits on behalf of Muslim workers.
This week’s tip involved an employer’s right to control the attire worn by employees. One other point that needs to be made involves dress and religion. That necessarily raises the matter of providing a reasonable accommodation to an employee to dress differently from other employees because of religious beliefs. (See a post I did last week on a different aspect of religious accommodation.)
As you’ve undoubtedly heard, about 11 years ago, the Republican nominee for the U.S. Senate in Delaware, Christine O’Donnell, admitted that she dabbled in witchcraft when she was in high school. (Here) This news has traveled all over the place and has become a political issue in the Senate race. The ensuing hubbub is significant for employers, not because of politics, but because it raises an important issue under Title VII of the Civil Rights Act, which prevents religious discrimination.