Legal Update: Discrimination, Harassment & Retaliation Law

November 7, 2012 Legal Update: Discrimination, Harassment & Retaliation Law Jeff Wedel jeffrey.wedel@squiresanders.com Tara Aschenbrand tara.aschenbrand@squiresanders.com Traci Martinez traci.martinez@squiresanders.com 37 Offices in 18 Countries

Supreme Court Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S.Ct. 694 (2012) Plaintiff was an elementary school teacher who taught both secular and non-secular classes After plaintiff s medical leave and the school s refusal to return her to the classroom, plaintiff was terminated. Employer asserted affirmative defense of ministerial exception 3

Supreme Court Docket Vance v. Ball State Univ., 646 F.3d 461 (7 th Cir. 2011) Seventh Circuit held that supervisory liability for harassment did not extend to lower level supervisors Fisher v. Univ. of Texas at Austin, 631 F.3d 213 (5 th Cir. 2011) Whether the Court s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment permit the University of Texas at Austin s use of race in undergraduate admissions decisions 4

Class Actions Puffer v. Allstate Ins. Co., 675 F.3d 709 (7 th Cir. 2012) Plaintiffs claimed salary administration system had disparate impact on female employees Class certification properly denied McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 672 F.3d 482 (7 th Cir. 2012) Reversed denial of certification of class of 700 African-American financial advisors based on disparate impact Case was certified for the purpose of deciding whether the defendant s challenged policies created a disparate impact to members of a protected class and for the purpose of ruling on plaintiffs request to enjoin such practices. Any claims for monetary damages would then have to be brought as separate proceedings 6

Exhaustion of Administrative Remedies Richter v. Advance Auto Parts, 686 F.3d 847 (8 th Cir. 2012) Filed charge with EEOC checking box for race and sex Administrative charge was dismissed Plaintiff filed lawsuit claiming retaliation. The court held that a complainant must file a charge with respect to each alleged unlawful employment practice 7

Pregnancy Discrimination Arizanovska v. Wal-Mart Stores, Inc., 682 F.3d 698 (7 th Cir. June 12, 2012) Plaintiff failed to identify a member outside of her protected class (non-pregnant employee) that was treated differently. Chapter 7 Trustee v. Gate Gourmet, Inc., 683 F.3d. 1249 (11 th Cir. June 11, 2012) Denial of light-duty position can be materially adverse action 8

Pregnancy Discrimination Hamilton v. Southland Christian Sch., 680 F.3d 1316 (11 th Cir. 2012) Plaintiff became pregnant with her fiancé's child. Upon informing her employer of such, she was fired and told that she had sinned by engaging in premarital sex and there are consequences for disobeying the word of God. Title VII does not protect right to engage in premarital sex. Title VII protects the right to become pregnant. Issues regarding whether sinful conduct was the reason for the termination remained for jury to determine. 9

Age Discrimination EEOC Final Rule Reasonable factors other than age Schechner v. KPIX-TV, 686 F.3d 1018 (9 th Cir. 2012) Plaintiffs submitted expert analysis that argued, Those individuals laid off, as a group, are older than the group of those not laid off, and the disparity between the two groups is statistically significant. Ninth Circuit found plaintiff can make out a prima facie case of disparate-treatment age discrimination using statistical evidence if the evidence shows a stark impact on the protected class. Lefevers v. GAF Fiberglass Corp., 667 F.3d 721 (6 th Cir. 2012) General statements about age and impending retirement were immaterial where performance reviews provided a legitimate business reason for termination. 10

Religious Discrimination Sanchez-Rodriguez v. AT&T Mobility Puerto Rico, Inc., 673 F.3d 1 (1 st Cir. 2012) Plaintiff converted to Seventh Day Adventist which required him to attend religious services and abstain from work on Saturdays. Employer s biggest sales days were Saturdays, and all sales employees were required to work rotating Saturdays. Plaintiff refused to do so. Employer offered the following accommodations: two alternative positions; allowed him to voluntarily swap shifts with co-workers And refrained from disciplining him for months for his repeated absences on Saturdays Court found the combination of accommodations to be reasonable 11

National Origin Cortezano v. Salin Bank & Trust Co., 680 F.3d 936 (7 th Cir. 2012) Plaintiff s husband was a citizen of Mexico who had entered the US without a valid visa. Employer conducted an investigation based on the husband s illegal immigration status National origin has nothing to do with legal or illegal status Guimaraes v. SuperValu, Inc., 674 F.3d 962 (8 th Cir. 2012) Plaintiff failed to show that she was targeted because of her national origin and, in fact, she could have been targeted for any of a number of reasons. Business judgment rule Courts generally do not disturb business judgment of employer unless those judgments involve intentional discrimination 12

Consideration of Arrest & Conviction Records EEOC Enforcement Guidance EEOC s effort to eliminate unlawful discrimination in employment screening, for hiring or retention Arrest & incarceration rates are particularly high for African American and Hispanic men African Americans and Hispanics are arrested at a rate of 2 to 3 times their proportion of the general population 13

Racial Harassment Hernandez v. Valley View Hospital, 684 F.3d 950 (10 th Cir. June 26, 2012) Plaintiff complained of alleged, racially offensive and derogatory comments from her supervisors Plaintiff was terminated after she stopped reporting to work Jury could reasonably find that the elements of a hostile work environment and constructive discharge claims Plaintiff s supervisors had repeatedly subjected her to racially insensitive and offensive comments and jokes; and Plaintiff repeatedly complained. 15

Same-Sex Harassment EEOC v. Boh Brothers Construction Co., LLC, 689 F.3d 458 (5 th Cir. 2012) Plaintiff s superintendent referred to him as "faggot" and princess," approached him from behind with lewd actions simulating sexual conduct, and allegedly exposed himself to plaintiff on a number of occasions Plaintiff was transferred (per his request) and later laid off Plaintiff sued alleging sexual harassment and retaliation Jury verdict for plaintiff on harassment Reversed by Fifth Circuit 16

Gender Specific Comments Passananti v. Cook County, 689 F.3d 655 (7 th Cir. July 20, 2012) Plaintiff alleged that during her employment, her supervisor repeatedly called her bitch, yelled at her, and belittled her Trial court dismissed plaintiff s sexual harassment claim although the statements were vulgar, rude, and ungentlemanly, there was no evidence that they were based on sex. Seventh Circuit reversed a reasonable jury could find harassment 17

Friction in the Workplace Jajeh v. County of Cook, 678 F.3d. 560 (7 th Cir. May 2, 2012) Plaintiff, a Syrian born Muslim physician, repeated complained about a physician coworker s treatment. As part of downsizing, Plaintiff was laid off Plaintiff alleged hostile work environment based on his religion and national origin Court found that none of the plaintiff s complaints over the years mentioned his religion or national origin as the basis for the alleged discrimination. Title VII does not prohibit any and all verbal or physical harassment in the work place, it only prohibits that which has a discriminatory impetus 18

Employer s Response Crawford v. BNSF Ry. Co., 665 F.3d 978 (8 th Cir. 2012) Five plaintiffs alleged sexual and racial harassment by their supervisor Employer acted reasonably to prevent and correct any sexually harassing behavior The employees failed to take advantage of the preventive and corrective opportunities provided by the employer. Court found for the employer based on the Ellerth-Faragher defense 19

Protected Activity Townsend v. Benjamin Enterprises, Inc., 679 F.3d 41 (2nd Cir. 2012) No protected activity for HR director who was investigating allegations of sexual harassment Although Title VII makes it illegal for an employer to retaliate against an employee because the employee participated in an investigation, the Title VII clause only encompasses investigations that are in conjunction with or occur after filing a formal charge with the EEOC 21

Voluntary Demotion Hicks v. Forest Preserve Dist. Of Cook County, 677 F.3d 781 (7 th Cir. Apr. 18, 2012) Plaintiff, an African-American, worked as a mechanic for employer He filed a discrimination complaint against his supervisor in 2006; over the next 2 years, he received 28 disciplinary action forms from this supervisor Plaintiff was then given the choice of taking a demotion or potentially facing further disciplinary action up to and including termination Plaintiff accepted the demotion, but brought suit against the employer claiming retaliation Plaintiff was awarded $30,000 at a jury trial, and the employer was ordered to return him to his previous position. The Seventh Circuit affirmed 22

Legitimate Business Purpose Gibson v. Am. Greetings Corp., 670 F.3d 844 (8 th Cir. 2012) Timing itself was not sufficient to avoid summary judgment Harper v. C.R. England Incorporated, Inc., 687 F.3d 297 (7 th Cir. June 8, 2012) Plaintiff, an African American, was called a racial name by a coworker. Plaintiff s employment was terminated for attendance reasons. Plaintiff failed to show that he was meeting the legitimate expectations of the employer at the time of his termination, and that similarly situated employees who did not engage in the statutorily protected activity were treated more favorably 23

Association Retaliation Thompson v. North American Stainless, 131 S.Ct. 863 (2011) it is an unlawful employment practice to fire or otherwise retaliate against an employee s close family member who has filed claim of discrimination; zone of interest Rodriguez-Monguio v. Ohio State University, 2012 U.S. App. LEXIS 18895 (6th Cir. Sept 7, 2012) Citing Thompson, recognized cause of action for associational retaliation in a boyfriend/girlfriend relationship 24

Credit Information For those you who require CLE, HRCI or CPD please note the following states have been approved, California and Ohio; as well as Arizona, New York, and New Jersey through state reciprocity rules. If you require credit in a jurisdiction not preapproved we can still apply to get you credit. Tomorrow you will receive an email with a link to an online affidavit. Open this link and complete the form. Don t forget to include the affirmation code on the form. Once completed, PDF a copy of the signed form to Robin Hallagan at robin.hallagan@squiresanders.com Remember to complete the webinar survey immediately following the end of this presentation. You are required to complete this evaluation before receiving a certificate of attendance. 25