Wednesday, February 13, 2019

I heard the 4th Circuit recognized a harassment claim based on rumors, pass it on.

[T]he central question presented is whether a false rumor that a female employee slept with her male boss to obtain promotion can ever give rise to her employer’s liability under Title VII for discrimination “because of sex.”
Welcome to Parker v. Remo Consulting from the 4th Circuit. The plaintiff alleged that the highest-ranking manager at her warehouse facility participated in the gossip, asking the man in the rumor, "hey, you sure your wife ain’t divorcing you because you’re f--king [the plaintiff]?" The manager allegedly went on to blame the plaintiff for "bringing the situation to the workplace" and told her that he would no longer recommend her for promotions.

The district court dismissed the claim, drawing a distinction between the plaintiff's sex (a protected characteristic under Title VII) and her conduct (generally not protected*). The Fourth Circuit reversed, pointing to the sex stereotype that "women, not men, use sex to achieve success." Additionally:
The complaint not only invokes by inference this sex stereotype, it also explicitly alleges that males in the RCSI workplace started and circulated the false rumor about Parker; that, despite Parker and Pickett’s shared tardiness, Parker as a female, not Pickett as a male, was excluded from the all-staff meeting discussing the rumor; that Parker was instructed to have no contact with Jennings, her male antagonist, while Jennings was not removed from Parker’s workplace, allowing him to jeer and mock her; that only Parker, who complained about the rumor, but not Jennings, who also complained of harassment, was sanctioned; and that Parker as the female member of the rumored sexual relationship was sanctioned, but Pickett as the male member was not. 
The Court concluded that the plaintiff had sufficiently pleaded a Title VII hostile work environment claim.

Now seems like a good time to share Ross Runkel's Case of the Week video series too. Here's his video on this case (find more at

* Notable exception for sex stereotyping and protected activity (participation and opposition in good faith efforts to address discrimination).

Friday, February 8, 2019

Fine, here's that NLRB Independent Contractor decision

Whether workers are properly classified as independent contractors or employees is an important issue. It is also a frustrating issue. Different courts and agencies use different tests depending on the circumstances (union organizing, workers' comp, unemployment compensation, wage and hour claims, and on and on). The different tests all utilize a bunch of different factors, and no one factor is determinative (and the factors are not given any particular weight).

To make matters somehow even worse - you get some back-and-forth on the standard within the same agency! Example: the NLRB, which notoriously reverses course with the changing of administrations. So, just to keep readers up to date, here's the NLRB's recent decision in SuperShuttle DFW, Inc. and Amalgamated Transit Union Local 1338.
Not official use.

The NLRB turned to the common law test, and overturned a prior ruling (FedEx). The Board applied this nonexhaustive - wait, nonexhaustive? oh yeah, I forgot to mention, these tests often have additional factors that we don't even know about yet! - list of 10 factors:
(a) The extent of control which, by the agreement, the master may exercise over the details of the work.  
(b) Whether or not the one employed is engaged in a distinct occupation or business.  
(c) The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision.  
(d) The skill required in the particular occupation.  
(e) Whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work.  
(f) The length of time for which the person is employed. 
(g) The method of payment, whether by the time or by the job. 
(h) Whether or not the work is part of the regular business of the employer. 
(i) Whether or not the parties believe they are creating the relation of master and servant. 
(j) Whether the principal is or is not in business.
So, don't forget to apply these 10 factors (and any others that seem like they might be helpful as the list is "nonexhaustive" after all), and then turn to the 35* other tests, and 473* different factors that all have varying amounts of w
eight and importance depending on who's rendering the decision. Easy, right?

* Rough estimates. 

Tuesday, January 29, 2019

Does Title VII protect employees from discrimination based on perceived sexual orientation?

Guess v. Phila. Housing Auth. is an interesting decision from the Eastern District of Pennsylvania. The Court addressed whether an employee could proceed under Title VII for a claim that he was discriminated against based on his perceived sexual orientation.

The short answer is 'no' (in this jurisdiction). As the Court noted:
The Third Circuit has held that discrimination because of sexual orientation is not discrimination because of sex for Title VII purposes. Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257 , 261 (3d Cir. 2001). I am not empowered to overrule that decision, although Plaintiff's arguments urging me to do so certainly warrant discussion . . . . 
The judge did include some of that discussion, noting that some of the bases for the Bibby decision have lost their support. Specifically, the Third Circuit has since minimized the impact of subsequent legislative history when interpreting statutes. And, the Third Circuit relied in part on precedent from other circuits, some of which have since overruled those decisions.

Additionally, plaintiffs can easily dress their sexual orientation discrimination claims up as gender stereotyping claims to avoid dismissal. Per the Court, "I am at a loss to conceive of a sexual orientation discrimination claim that could occur in so much of a vacuum as to be free of any gender stereotyping."

This whole issue of whether Title VII applies to sexual orientation appears to be reaching a decision point. We already have a circuit split. We have waffling EEOC input (based on changing administrations). Multiple petitions for certiorari are pending before the Supreme Court. Of course, the whole thing could easily be resolved with legislative action . . . but I'm not holding my breath.

Monday, January 28, 2019

7th Cir: ADEA disparate impact only applies to employees, not applicants

Not official use. 
In Kleber v. CareFusion Corp., the Seventh Circuit (en banc) held that "that Congress, while protecting employees from disparate impact age discrimination [under the ADEA], did not extend that same protection to outside job applicants." Woah, that's big, right? How did they get there?

The Court focused on the statutory text. The disparate impact provision of the ADEA makes specific reference to protecting one's "status as an employee." Welp, an applicant is not an "employee," right? The Court also contrasted the disparate impact provision with the disparate treatment provision, which makes it unlawful for an employer "to fail or refuse to hire . . . any individual . . . because of such individual's age."

This is a controversial ruling, and the Court split with four judges dissenting. I would not be surprised to see a circuit split on this issue and/or Supreme Court review.

Thursday, January 24, 2019

Pennsylvania Superior Court allows whistleblower claim to circumvent PHRA administrative process

Here's an interesting (albeit unpublished) decision from the Superior Court of Pennsylvania: Harrison v. Health Network Laboratories, LP.

The plaintiff alleged that her employer fired her in retaliation for reporting that her supervisor was creating a hostile work environment for non-Indian employees. If you practice law in Pennsylvania, this probably sounds like a classic Pennsylvania Human Relations Act (PHRA) claim. The PHRA prohibits retaliation for protected activity, like reporting discriminatory harassment.

Here's the thing - the plaintiff filed a claim under the Pennsylvania Whistleblower Law (PWL) instead. The PWL prohibits retaliation for a good faith report of "wrongdoing." She claims her employer fired her for reporting the "wrongdoing" of creating a hostile work environment.

The employer argued that the PHRA pre-empts the PWL. The Superior Court rejected this argument primarily because the PHRA pre-dates the PWL. So, the Court concluded that the employee may proceed with her PWL claim.

Why does this matter? It matters because the PHRA requires that plaintiffs exhaust their administrative remedies before they file a lawsuit in court. Employees generally must go through the administrative process with either the EEOC (if federal discrimination statutes are involved) and/or the PHRC (if state discrimination statutes are involved). This decision appears to allow retaliation plaintiffs to just skip those pesky administrative processes and go straight to court.

One important note: The PWL only protects employees of a "public body" (although, that term has been broadly interpreted to include recipients of public funds as well as government entities).

Wednesday, January 16, 2019

Supreme Court limits arbitration in interstate trucker case

Yesterday, the Supreme Court issued an opinion limiting the scope of the Federal Arbitration Act (FAA) in New Prime Inc. v. Oliveira. Yes, you read that right - limiting. The Supreme Court actually ruled against arbitration. Is this it? The end times? Apocalypse? Only time will tell . . . .

The FAA generally requires courts to compel arbitration where the parties agreed to arbitrate their dispute. There are, however, exceptions. One of which is "contracts of employment of . . . workers engaged in . . . interstate commerce." Important sidenote: the Supreme Court had previously limited this exception to only include transportation workers. Welp, New Prime involved a driver, working for an interstate trucking company.

The Court was faced with two questions. First, if the parties agreed to delegate the arbitrability question to an arbitrator, then who decides whether the arbitration agreement falls under the FAA exception (arbitrator or court)? Justice Gorsuch, for a unanimous court (except Kavanaugh who did not participate) held that the court and not the arbitrator decides that issue. Why? Because the delegation of the arbitrability question is itself an arbitration agreement - and therefore, the court must first resolve whether the FAA covers the agreement (or instead falls under an exception) before compelling arbitration.

Second question: the company and the driver had a contract designating him an "independent contractor." So, does the contract count as a "contract of employment"? Modern lawyers will probably have a gut reaction of "heck no - we have a very clear distinction between 'employee' and 'independent contractor' under the law!"

Not so fast! The FAA was adopted in 1925, and we're dealing with a (mostly?) originalist Supreme Court! So, the question is not "What does 'contract of employment' mean now" - but, rather, "What did 'contract of employment' mean in 1925?" The answer is that 'contract of employment' was understood as a very broad phrase. Per Justice Gorsuch's opinion, "dictionaries tended to treat 'employment' more or less as a synonym for 'work.'" Court opinions and statutory text at the time also support this broad interpretation. The Court concluded that "contract of employment" therefore includes independent contractors as well as employees.

So, contracts of employees and independent contracts with interstate transportation companies are  excluded from the FAA's compulsory arbitration provisions. And, the court (not the arbitrator) determines whether the exclusion applies.

Tuesday, January 15, 2019