Wednesday, October 3, 2018

SCOTUS kicks off new season with ADEA case

On Monday, the Supreme Court kicked off its new season with only 8 Justices (with a 9th possibly, maybe, on the way). The Court heard oral arguments in Mt. Lemmon Fire Dist. v. Guido (transcript here). The case presents an interesting ADEA issue.

Generally, the ADEA covers employers with 20 or more employees. Does that 20-employee minimum apply to states (and their political subdivisions, agencies, and instrumentalities)? The statutory text:
The term “employer” means a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year…. The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State, and any interstate agency, but such term does not include the United States, or a corporation wholly owned by the Government of the United States.
29 U.S.C. § 630(b).

Most circuit courts that have examined this issue have held that yes, the 20-employee minimum applies. So, that's where my money is on this case - but we'll see.

Mt. Lemmon Fire Dist. v. Guido SCOTUSblog page.

Tuesday, September 18, 2018

NLRB Proposes Rule for Joint-Employment

Not official use.
Sometimes, two distinct entities share a relationship with the same workers. For example, when you walk into a fast food place - those workers are most likely employed by the local franchise, not the big national fast food corporation. The big national, however, has *some* relationship with those employees. Is it enough to consider the big national their "employer" (a "joint employer")?

The NLRB has gone back and forth on the proper test for determining whether an entity is a joint employer. Last week, the NLRB announced a new proposed rule - hoping that following the rulemaking process will give this latest iteration a little more heft than the standards coming out of dueling NLRB opinions.

We're still waiting on the details, but the press release should give you an idea:
Under the proposed rule, an employer may be found to be a joint-employer of another employer’s employees only if it possesses and exercises substantial, direct and immediate control over the essential terms and conditions of employment and has done so in a manner that is not limited and routine. Indirect influence and contractual reservations of authority would no longer be sufficient to establish a joint-employer relationship.
The new rule would make entities less likely to be joint employers as compared to teh Obama-era standard.

Monday, August 20, 2018

PHRC: Pennsylvania law prohibits sexual orientation discrimination

Here in Pennsylvania, we have a workplace anti-discrimination law called the Pennsylvania Human Relations Act (PHRA). It's a lot like the federal laws (Title VII, ADA, ADEA). One notable distinction is that the PHRA applies to employers with 4 or more employees, whereas the federal antidiscrimination laws generally require 15 (20 for the ADEA). One similarity is that the PHRA prohibits "sex" discrimination but not expressly "sexual orientation" discrimination.

Well, the Pennsylvania Human Relations Commission recently issued some important guidance: PHRC Guidance on Discrimination on teh Basis of Sex Under the PHRA. A key takeaway:
The prohibitions contained in the PHRA and related case law against discrimination on the basis of sex, in all areas of jurisdiction where sex is a protected class, prohibit discrimination on the basis of sex assigned at birth, sexual orientation, transgender identity, gender transition, gender identity, and gender expression.
The PHRC will accept complaints from people alleging discrimination on the basis of sexual orientation or gender identity/transition/expression. But, will evaluate them "using any and all legal theories available depending on the facts of the individual case."

Thursday, July 19, 2018

Third Circuit on Sexual Harassment Affirmative Defense (and #MeToo)

The Third Circuit recently issued a fascinating sexual harassment opinion in Minarsky v. Susquehana County (opinion here) - Eric Meyer calls it "the most important employment law decision of 2018. In some ways, the case is unremarkable. The Court is just applying the Faragher-Ellerth affirmative defense.

What's that, you say? In sexual harassment cases involving a hostile work environment (i.e. the employer did not take a tangible employment action against the employee) where the harasser is a supervisor (i.e. someone with the authority to take a tangible employment action), the employer may evade liability by establishing:
(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and  
(b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
That is established Supreme Court precedent, and the Third Circuit followed it.

What is remarkable about Minarsky is that:
  • the employer had an anti-harassment policy;
  • the employer provided the plaintiff with the policy;
  • the employee failed to report the harassment for years; and
  • when the employer found out about the harassment, it fired the harassing supervisor. 
This sounds like classic Faragher-Ellerth defense material!

Not official use.
But, on appeal, the Third Circuit reversed the district court's decision granting the employer summary judgment. Why? Well, there was evidence that the employer knew of a slew of incidents involving eth supervisor (awkward embraces, inviting kisses under the mistletoe at Christmas, kisses on the cheek, etc.). He received a couple of reprimands, but nothing serious. In the words of the Court:
County officials were faced with indicators that Yadlosky’s behavior formed a pattern of conduct, as opposed to mere stray incidents, yet they seemingly turned a blind eye toward Yadlosky’s harassment.  
Was the policy in place effective? Knowing of his behavior, and knowing that Minarsky worked alone with Yadlosky every Friday, should someone have ensured that she was not being victimized? Was his termination not so much a reflection of the policy’s effectiveness, but rather, did it evidence the County’s exasperation, much like the straw that broke the camel’s back? We do not answer these questions, but conclude that there exists enough of a dispute of material fact, and thus a jury should judge . . . .
What about the employee's failure to report? 

She clearly failed to take advantage of the employer's policy and corrective opportunity. But, was her behavior unreasonable? Again, the Court concluded that this determination should be left to a jury. The employee testified that she feared retaliation from the supervisor, reporting would be futile because the employer already knew of his other misconduct, and she desperately needed to keep her job (and insurance) to cover her daughter's cancer treatments.

Interestingly, the Court also covers the #MeToo movement a little (although not expressly calling it that). Footnote 12 begins:
This appeal comes to us in the midst of national news regarding a veritable firestorm of allegations of rampant sexual misconduct that has been closeted for years, not reported by the victims.
The Court goes on to describe recent news reports and studies about harassment and underreporting.

I suspect this case will be cited by every plaintiff-side lawyer in the country any time the Faragher-Ellerth defense comes up. For employers, it's yet another wake-up call that they need to promptly (end effectively) address harassment when it is discovered.

Friday, July 13, 2018

Kavanaugh, Lateral Transfers, and Disparate Treatment

To win a disparate treatment claim under Title VII, the employee must show that (s)he suffered an "adverse employment action." In Ortiz-Diaz v. HUD, the D.C. Circuit held that the employer's denial of a lateral transfer did not meet this standard (citing past precedent requiring "diminution in pay or benefits" or other "materially adverse consequences").

SCOTUS nominee, Judge Kavanaugh, filed a concurring opinion. He agreed that under existing D.C. Circuit precedent, denial of a lateral transfer was generally not an adverse employment action, but he wrote a very short opinion (this is it, in its entirety) to express skepticism about that precedent:
I join the majority opinion because it faithfully follows our precedents. Our cases hold that lateral transfers to different positions or posts with the same pay and benefits are ordinarily not changes in the “terms, conditions, or privileges” of employment. I write this concurrence simply to note my skepticism about those cases. In my view, a forced lateral transfer—or the denial of a requested lateral transfer—on the basis of race is actionable under Title VII. Based on our precedents, however, I join the majority opinion.

Tuesday, July 10, 2018

Kavanaugh, the N-word, and Hostile Work Environment

To state a hostile work environment claim, an employee must allege that (s)he was subjected to discriminatory harassment that was "severe or pervasive." What about one incident? Obviously, that's not pervasive; but, when is one incident severe enough to create a hostile work environment?

New SCOTUS nominee, Judge Kavanaugh, addressed this issue in a concurring opinion in Ayissi-Etoh v. Fannie Mae. A Fannie Mae vice president allegedly yelled at an African-American employee to "get out of my office ni**er." So, how about it? Was that one verbal incident enough? Judge Kavanaugh says yes:
It may be difficult to fully catalogue the various verbal insults and epithets that by themselves could create a hostile work environment. And there may be close cases at the margins. But, in my view, being called the n-word by a supervisor—as Ayissi–Etoh alleges happened to him—suffices by itself to establish a racially hostile work environment . . . No other word in the English language so powerfully or instantly calls to mind our country's long and brutal struggle to overcome racism and discrimination against African–Americans . . . . Here, as I see it, the alleged statement by the Fannie Mae Vice President to Ayissi–Etoh itself would establish a hostile work environment.
 HT: Robin Shea and Jon Hyman.


Monday, July 9, 2018

Kavanaugh, Seaworld, and OSHA

Welp, now we know . . . President Trump's pick to replace Justice Kennedy is Judge Kavanaugh from the D.C. Circuit. I teach employment law for Penn State's School of Labor and Employment Relations. The past several semesters, the class on OSHA has included discussion of Seaworld of Fla. v. Perez - including Judge Kavanaugh's dissent.

This case arose from a tragic fatality involving a killer whale trainer. The issue was whether SeaWorld's killer whale shows violated OSHA's "general duty clause" - which requires a workplace "free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." The 2-judge majority held that SeaWorld had indeed violated OSHA. The hazards of killer whale performances could be abated by maintaining distance from the whales, working behind a barrier, and/or ceasing waterwork.

SCOTUS Nominee
Judge Brett Kavanaugh
Judge Kavanaugh dissented. Why? Judge Kavanaugh's basic premise was that certain sports and entertainment spectacles are inherently dangerous. Should they be regulated? In Judge Kavanaugh's words:
That policy question is not before us. My legal disagreement with the majority opinion boils down to one basic question: Who decides? Under current law, it is not the Department of Labor.
He starts with a litany of risky endeavors, inviting the question of whether they too must be shut down (or altered) under the OSHA general duty clause:
Many sports events and entertainment shows can be extremely dangerous for the participants. Football. Ice hockey. Downhill skiing. Air shows. The circus. Horse racing. Tiger taming. Standing in the batter's box against a 95 mile per hour fastball. Bull riding at the rodeo. Skydiving into the stadium before a football game. Daredevil motorcycle jumps. Stock car racing. Cheerleading vaults. Boxing. The balance beam. The ironman triathlon. Animal trainer shows. Movie stunts. The list goes on.
I confess that I enjoy (perhaps too much) watching students squirm as I challenge them with this issue from Judge Kavanaugh's dissent: "The Department [of Labor] cannot reasonably distinguish close contact with whales at SeaWorld from tackling in the NFL."

So, does OSHA prohibit tackling in the NFL? I don't think we'll see that case any time soon; but, if we do, I think we know how Justice (if he gets confirmed) Kavanaugh would vote.