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.


Tuesday, July 3, 2018

Trump middle finger lawsuit dismissed

I can't say I'm surprised. The lady who got fired for flipping off President Trump's motorcade reportedly lost her lawsuit. I suppose she still has some appeal options. When she filed suit, I described her claim as a "secondhand First Amendment claim," and called it a "long shot."

She tried to argue that the current political climate led her employer to fire her from fear of retaliation from the government. First, it doesn't sound like she really had anything to back that up (although that's generally not crucial at the pleadings stage). The bigger issue is that the First Amendment simply does not apply to private employers.

UPDATE (7/6/2018): I should have pointed out that the employee also had a claim that she was not paid severance that she was allegedly promised. This claim may proceed.

Thursday, June 28, 2018

SCOTUS Season Concludes with a Labor Decision and a Surprise

Yesterday, the Supreme Court concluded its 2017-18 term. I'll start with the huge news that Justice Kennedy announced his retirement. Hopefully, we'll soon know who President trump nominates to replace him, and do a little employment law background check on him or her. Here is President Trumps 'short list' from November 2017.

The big news for the hour or so before the retirement announcement was that the Supreme Court issued its opinion in Janus v. AFSCME. The 5-4 majority opinion from Justice Alito is 49 pages, so I'll bypass the complicated legal analysis and cut to the conclusion:
States and public-sector unions may no longer extract agency fees from nonconsenting employees . . . . This procedure violates the First Amendment and cannot continue. Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay. By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed. Rather, to be effective, the waiver must be freely given and shown by “clear and compelling” evidence. Unless employees clearly and affirmatively consent before any money is taken from them, this standard cannot be met.
(citations omitted). This is big news and will have a big impact on states where public employee unions require a "fair share."

Wednesday, June 27, 2018

New Proposed Pennsylvania Overtime Regs

Okay employers, do you remember President Obama's proposed overtime regs from 2016? The ones you were freaking out over? But then completely forgot about because a court enjoined them? Well, guess what? They're baaaack . . . potentially . . . sort of . . . in Pennsylvania.

Over the weekend, the Pennsylvania Department of Labor and Industry published a notice of proposed rulemaking that looks an awful lot like the proposed Obama regs.

Generally, employers must pay employees time-and-a-half for overtime (hours over 40 worked in a workweek). Many employees, however, are exempt from this overtime requirement under the white collar exemptions (administrative, executive, and learned professional). Each white collar exemption requires that the exempt employee perform certain primary duties. The new regs make some tweaks there.

The big change, however, will be the new salary requirements. All three white collar exemptions require that the employer pay the employee on a salary basis. And, currently, the employee must receive a minimum salary of $455/week under federal law. Under the new proposed Pennsylvania reg, that amount will increase incrementally over three years:
  • The minimum salary amount is increased to $610 per week on the effective date of adoption of the final-form rulemaking; 
  • To $766 per week 1 year after the effective date; and
  • To $921 per week 2 years after the effective date. 
After that, it will increase incrementally every three years to "a rate equal to the 30th percentile of weekly earnings of full-time nonhourly workers in the Northeast Census region in the second quarter of the prior year as published by the United States Department of Labor, Bureau of Labor Statistics."

This is gentler than the Obama reg, which would have just - BAM! - doubled the minimum salary requirement overnight.

The proposed Pennsylvania reg also "allows up to 10% of the salary amount to be paid by nondiscretionary bonuses, incentives or commissions" - a similar provision was in the Obama version.