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by M. McClure on Sep 12, 2011 at 2:49 PM

Individual Liability for Retaliation in ArkansasThe Arkansas Supreme Court recently answered a certified question from a federal court regarding whether managers may be personally liable in retaliation cases brought under the Arkansas Civil Rights Act. The question is an important one because most courts have found that individuals are not liable for retaliation under Title VII of the Civil Rights Act, the federal discrimination law. 

In Calaway v. Practice Management Service, Ms. Calaway complained to the office manager about sexually harassing comments from her physician-employer.  Calaway asserts that once the physician learned of Calaway’s complaints, he immediately terminated her employment.  

Calaway filed her lawsuit in federal court, alleging that she worked in a hostile work environment and that Practice Management and the physician retaliated against her.  Her lawsuit sought to hold Practice Management and the physician liable under Title VII and the Arkansas Civil Rights Act. 

The Arkansas Supreme Court determined that the Arkansas Civil Rights Act allowed a person to be held individually liable for retaliation.  The Court reasoned that the section of the statute that concerns retaliation unambiguously refers to a "person."  The court looked to the plain meaning of the word "person" and interpreted it to mean an individual, thus creating individual liability for retaliation claims.

Bottom Line:  Until the Arkansas legislature changes the state statute regarding retaliation, management and human resources employees could be personally liable for business decisions that create retaliation complaints.  Individual liability does not exist under Title VII, so it would be up to the Arkansas legislature to amend the Arkansas Civil Rights Act to bring it in line with federal law.

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by M. McClure on Apr 8, 2011 at 2:31 PM

EEOC deadlines for discrimination litigationIn a recent case, Frazier v. Vilsack, the Eighth Circuit upheld the dismissal of a Title VII racial discrimination case filed one day after the expiration of the statute of limitations.  This is a clear example of how seriously courts take deadlines.  In Frazier, the employee filed his lawsuit against a government employer 96 days after the EEOC mailed him the right-to-sue letter.  Under Title VII, an employee has 90 days from the time the notice is received to file suit against the employer. 

The district court found that the right-to-sue letter did not arrive until five days after the date the letter was issued.  Therefore, the employee did not file his suit for 91 days, one day past the statute of limitations.  The Eighth Circuit noted that it was not clear whether Title VII’s statute of limitations were jurisdictional or an issue of equitable tolling, but that it did not matter.  One day late is still too late.  The employee tried to argue that he didn’t receive the right-to-sue letter until after March 18th, the day the trial court found the letter arrived, but could not provide evidence to support his claim.  He also argued that he did not always open his mail on the day it arrived, and therefore would not have had notice until after the 18th.  The Court held that such arguments had no impact on the statute of limitations.  

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by M. McClure on Feb 25, 2011 at 1:28 PM

Retaliation claims now available to friends and familyRetaliation claims under Title VII recently became available to a new group of employees, including friends and family of employees who complain about discrimination. The United States Supreme Court unanimously held in Thompson v. North American Stainless that Title VII creates a cause of action for a third party who suffers some adverse employment action because of an association with an employee who complained of discrimination.

The facts of the case are simple: Thompson and his then fiancée (now wife) worked for North American Stainless (“NAS”).  The fiancée filed a gender discrimination complaint against NAS with the EEOC.  Three weeks after receiving notice of the fiancée’s complaint, NAS fired Thompson.  Thompson then sued NAS claiming that he was fired in retaliation for his fiancée’s protected activity, which was filing a gender discrimination complaint.

Justice Scalia, writing for the Court, stated that there were two question presented: First, did NAS’ firing of Thompson constitute unlawful retaliation? And second, if it did, does Title VII grant Thompson a cause of action?
   
With regard to the first question, Justice Scalia wrote, “Title VII’s anti-retaliation provision must be construed to cover a broad range of employer conduct.”  Furthermore, Title VII prohibits any employer from taking action that might dissuade a reasonable worker from making or supporting a charge of discrimination.  The Court stated, “We think it is obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew her fiancé would be fired.”

The Court then declined to identify a fixed class of relationships for which third-party reprisals are unlawful, stating that, “Title VII’s anti-retaliation provision is simply not reducible to a comprehensive set of clear rules.”   

The second question raised by Thompson, whether the third party victim has a cause of action under Title VII, was more difficult, and revolved around that meaning of the word “aggrieved.”  The Court adopted the “zone of interest” approach.  

Under the “zone of interest” approach, “a plaintiff may not sue unless he falls within the ‘zone of interests’ sought to be protected by the statutory provision whose violation forms the legal basis for the complaint.”  In other words, Mr. Thompson can sue for third party retaliation under Title VII because his employment was terminated by NAS, but a stock holder could not because her harm is not related to employment.

Bottom line: More employees are now eligible to bring retaliation claims, which are some of the hardest types of Title VII claims to defend. Employers should consider whether any adverse employment action creates the appearance of retaliation before moving forward with it. 

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by M. McClure on Nov 11, 2010 at 3:41 PM

US Supreme Court to Consider Third Party Retaliation Claim under Title VIIOn December 7th, 2010, the United States Supreme Court will hear oral arguments on Thompson v. North American Stainless.  The facts of the case are simple: Thompson and his then fiancée (now wife) worked for North American Stainless.  The fiancée filed a gender discrimination complaint against Stainless with the EEOC.  The EEOC notified Stainless of the fiancée’s complaint, and Stainless fired Thompson three weeks later.  Thompson then sued Stainless claiming that he was fired in retaliation for his fiancée’s protected activity, which was filing a gender discrimination complaint.
    
Stainless moved for summary judgment, which was granted.  Thompson appealed.  The Sixth Circuit originally held in favor of Thompson, but on rehearing, reversed its previous decision, and held for Stainless, stating that it had no intention of becoming “the first circuit court to hold that Title VII creates a cause of action for third-party retaliation on behalf of friends and family members who have not engaged in protected activit[ies].”  Thompson then filed for Writ of Certiorari, which was granted.
    
Title VII makes it unlawful for an employer to fire an employee “because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.”  Stainless’ argument is that Thompson neither opposed Stainless’ discriminatory practices nor participated in his fiancée’s protected activities, and therefore has no cause of action under Title VII.

Thompson’s argument is that allowing employers to target friends and family will have a chilling effect on employee’s protected activities.  Basically, you are less likely to report your sexually harassing boss if you know your best friend/spouse/parent/sibling will be fired because of it.  Nonetheless, if the Supreme Court recognizes this third-party cause of action, the pool of potential plaintiffs under Title VII becomes much larger.  Importantly for Arkansas, the Eighth Circuit has rejected third-party retaliation claims, but we should have a response from the Supreme Court sometime during the spring of 2011.

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by M. McClure on Apr 27, 2010 at 11:51 AM

Emails in  Employment LitigationMost of us have heard stories about emails in the workplace resurfacing in litigation. So, the facts of Elam v. Regions Financial Corp. are not surprising.

In Elam v. Regions Financial Corp., a newly hired teller was frequently sick at work and later discovered that she was pregnant and suffering from morning sickness.  The bank allowed the teller to have a drink at her station and to arrive late due to morning sickness.  The teller had performance issues other than her attendance.  She would leave her cash drawer unlocked and sometimes leave her station in the middle of a transaction.  Although the teller was reprimanded, her behavior did not improve.  Her supervisor sent an email to HR requesting to fire the "pregnant girl teller." Upon HR's approval, the teller was fired.  The teller sued the bank under Title VII for pregnancy discrimination. 

The 8th Circuit Court of Appeals upheld the lower court's ruling in favor for the bank.  The Court did not find any direct or indirect evidence of discrimination.  The supervisor's reference to the teller as "the pregnant girl teller" was not found to be discriminatory because references to a protected status without reflecting bias is not direct evidence of discrimination.  The bank had provided numerous accommodations and had non-discriminatory reasons for terminating her.  Finally, the Court noted that pregnancy does not require special treatment.

The case ended well for the bank.  However, this single email was likely a significant reason for the litigation.  Avoiding litigation is more important than winning litigation.  Remind your workplace that email communication is communication nonetheless and could be the basis of litigation.

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by M. McClure on Jan 30, 2010 at 3:41 PM

Title VII prohibits gender discrimination based on appearanceWithout being told by their lawyers, most employers know that they shouldn't fire an employee because she's not "pretty." Some employers need a little additional coaching. 

In 1989, the US Supreme Court found that gender stereotyping was a violation of Title VII.  In Price Waterhouse v. Hopkins, the Supreme Court considered whether gender stereotyping disadvantaged a woman with a masculine appearance and mannerisms when compared to men. 

But, does discrimination occur when a female manager fires a female employee because she doesn't have a "Midwestern girl look"? That's just the question the Eighth Circuit recently answered in Lewis v. Heartland Inns.

In Heartland Inns, the plaintiff, Lewis, was by all accounts an excellent employee, and her supervisor recommended Lewis for a promotion to the hotel front-desk during the day shift. Lewis was in the new position for a month when a more senior manager, also female, visited the hotel. The senior manager did not believe that Lewis had the right "Midwestern girl look" for the front desk, and in the past the senior manager had stated that the Heartland staff should be "pretty," particularly at the front desk.  Upon meeting Lewis, the senior manager insisted on conducting her own interview of Lewis, although Lewis had already been in the front desk position for over a month.  

As might be expected, the interview did not go well.  The accounts of the interview varied between Lewis and the senior manager, but the result was Lewis' termination.

The Eighth Circuit reasoned that Lewis did not need to prove that she was disadvantaged in comparison to men, but instead, the court found that "the principle focus of Title VII is the protection of the individual employee, rather than the protection of the minority group as a whole." Therefore, there was no need to show that Lewis was treated poorly in comparison to men. 

Yes, this case expands the theories under which employers can be sued in the Eighth Circuit, but the rule that you should not make employment decisions based on employee's appearance really isn't news.  Unless an appearance standard is a bona fide occupational qualification (Hooters girls?), employers should just close their eyes when they make employment decisions.

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by Jewel Bennett on Oct 5, 2009 at 11:26 AM

employment lawyer recommends proceeding with caution on management behaviorIn Anderson v. Family Dollar Stores of Arkansas, Inc., the Eighth Circuit Court of Appeals closely followed the US Supreme Court's direction that Title VII is not a "general civility code for the American workplace."   Employers can take comfort in the high standard courts have set regarding bad behavior in the workplace, but a company that wants to remain an employer of choice will hold their management team to a much higher standard.   Bottom line, if one of your managers is a jerk, you should demand a change in behavior or show him or her the door.

The plaintiff in Family Dollar Stores started work as a manager trainee for Family Dollar. She was fired after her first day. She complained to HR and met with the district manager. During her meeting, plaintiff claims that the district manager talked about very personal things, such as her hair, eyes, and marital status. Plaintiff was rehired and placed in a five-week training program. During the district manager's contact with plaintiff, which was once a week for approximately an hour, plaintiff claims that the district manager was physically inappropriate towards her and insinuated that he could control her future in the company.  

At the end of her training period, plaintiff was assigned to a store as manager. During the first week she made phone calls to the district manager for assistance. At one time, the district manager, who was in Florida at the time, told plaintiff that he felt she should be with him.  Another time, the plaintiff claims that the district manager called her "baby doll."

Several months after plaintiff was hired, the district manager came to the store and plaintiff addressed all of her problems with her employees. She also told him they needed to prepare the appropriate paperwork for her back pain because she was forced to unload the truck by herself.  The district manager's demeanor worsened and he grabbed plaintiff and told her he thought she was no longer willing to be a team player.  He then fired plaintiff.

Plaintiff did not report any of the harassment to HR and even though she wrote an email to HR after her termination, she did not include the sexual harassment. She first mentioned the sexual harassment in her EEOC complaint. The district court granted Family Dollar's summary judgment, finding that plaintiff's allegations were not so severe as to alter a term, condition, or privilege of her employment. The Court of Appeals agreed. The Court stated that although White's conduct was ungentlemanly and inappropriate, Title VII is not a "general civility code for the American workplace."

Sure, the district manager's conduct was not harassment under Title VII, but to create a more productive work environment, employers should not allow this type of conduct in their workplace.  It is much easier to be civil than sorry. 

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by M. McClure on Aug 25, 2009 at 4:18 PM

cutting jobsWhile signs of economic recovery are beginning to appear, some employers continue to look for ways to cut costs. Most employers seeking to reduce costs at least consider a reduction in force. While a reduction in force can provide significant impact to the bottom line, this strategy is not without risk. 

Every employee who is impacted by a reduction will invariably ask "why me," and sometimes the answer that the employee settles upon is his or her age, gender, race, religion, disability, etc. While no reduction in force is risk free, there are best practices that can reduce an employer's legal risk. 

I'll be speaking on reductions in force at the Arkansas SHRM Employment Law and Legislative Affairs Conference on October 1, 2009, and as I prepare, I have been reviewing all the excellent commentary on the subject.  Here's a sample:   

Preparing for and Managing a Reduction in Force

Reducing Risks in a Reduction in Force - Is There a Perfect Solution

Reduction in Force Guidelines

Reducing the Legal Risks Associated with a Reduction in Force

Top 10 Layoff Tips

How to Lay People Off

Furloughs: An Alternative to Layoffs

RIF's: Beware the Hidden Costs

Reductions in Force: Top Considerations

 

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by M. McClure on Aug 7, 2009 at 3:36 PM
Filed in FMLA | Title VII

Small employers are often relieved to hear that they are not governed by Title VII because they have fewer than 15 employees. Also, the Family Medical Leave Act only applies to employers with at least 50 employees. But, an employer can inadvertently reach these numbers when more than one company is owned and managed by the same entity. 

A recent case from an Arkansas federal district court demonstrates that courts will look at all related companies to determine whether an employer has 15 employees and is subject to the requirements of Title VII.  Hardy v. Town of Perla Water Ass'n.  One company plus another company could equal 15 employees.

In the Hardy case, an employee sued the Town of Perla Water Association and the Mayor of Perla for racial discrimination, hostile work environment, and retaliation under Title VII. Because the Perla Water Association had only six employees, the court looked at whether the company should be combined with the City of Perla to determine whether the company was an employer under Title VII.

The court in Hardy first set out the factors to consider when combining to two private companies for Title VII purposes: 1) interrelation of operation, 2) common management, 3) centralized control of labor relations, and 4) common ownership or financial control.  FMLA regulations set forth the same test to determine whether two companies should be combined to determine whether an employer has 50 employees and is governed by the FMLA. 29 C.F.R. 825.104(c)(2). 

The Hardy court rejected this test because the town of Perla was a public entity rather than a private entity.  Instead, the court looked for "indicia of control," which includes the authority to hire, transfer, promote, discipline, or discharge, establish work schedules, direct work assignments, and the obligation to pay. The court found indicia of control between the two entities, but excluded volunteer fire fighters and city council members from the count, leaving too few employees to create Title VII liability.  Therefore, the employee's claims were dismissed under Title VII. 

Bottom Line:  The Hardy case demonstrates that a court will look past corporate structure when determining the number of employees for Title VII purposes.  Employers should be particularly concerned about related companies that could be combined to group more than 50 employees, and therefore, become subject to the FMLA. Conduct that will create liability under Title VII is usually pretty offensive and careful employers, even those with fewer than 15 employees, take steps to avoid that conduct in their workplaces.  But, the FMLA requires employers to provide job-protected leave to qualifying employees, along with specific notifications, which most employers would not do if they were not subject to the FMLA. So, take a look at any related companies and do the math.  Don't be unprepared when 1 + 1 = 50.    

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by M. McClure on Jul 26, 2009 at 4:56 PM
heat heats up sexual harrassment complaints in ArkansasJuly in Arkansas is hot.  As the days get longer and ties get loosened, employers find themselves responding to more complaints of sexual harassment. The good news for business owners and HR professionals is that it is much easier to handle an harassment complaint then, say, a wage and hour class action.  

The law requires an employer who receives an harassment complaint to perform a prompt, thorough and impartial investigation and to stop the harassing behavior. Everything gets a little trickier if a supervisor is accused, but in many cases, an harassment complaint can be put to rest with an investigation and appropriate disciplinary action.  To help ease your summer workload, here's a round-up of solid investigation and harassment policy advice.  Take care of that complaint today, and get out to the lake!

EEOC's Enforcement Guidance on Harassment by Supervisors
. Check out section 1. e. regarding how to conduct an investigation.  

Workplace Investigations: Don't Forget to Communicate with the Complainant

Are Your Investigations Unbiased?


Remedial Action Must be Meaningful to Save Employer from Harassment Liability

Where There's Smoke, There's Not Always Fire


Suspended With Pay - A Call to Get the Investigation Done Quickly, Unless You Work for the Government....

Employee Handbooks: Anti-Harassment Tip Sheet


Text Message Harassment - No LOLing Matter

Text Harassment?

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