Monday, September 18, 2017

Third Circuit: Who's a "supervisor" for harassment claims?

Yes, the Supreme Court already answered this question in Vance v. Ball State Univ., holding per the syllabus that:
An employee is a “supervisor” for purposes of vicarious liability under Title VII only if he or she is empowered by the employer to take tangible employment actions against the victim.
Not official use.
Examples of "tangible employment actions" include, "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits."

This is an important determination, because it is easier to establish liability for sexual harassment where the harassment is from a "supervisor."

In Moody v. Atlantic City Bd. of Ed., the Third Circuit faced an interesting situation that required a tough call under the Vance standard. A substitute school custodian alleged that she was sexually harassed by a foremen at one of the schools. The foreman at each school was "delegated the authority to select which substitute custodians worked at the school." She claimed that one of the foremen, from whom she got most of her call-ins, stopped calling her in when she refused his sexual advances.

This case is tough, because at a high level he was not really her supervisor . . . he was just one of many people who could call her in for piecemeal assignments. However, cutting off these assignments would reduce her total work hours and ultimately her total compensation. That was enough for the majority to conclude that the school foreman was her supervisor.

Judge Rendell dissented, noting:
Could Marshall (the foreman) hire or fire Moody? Could Marshall promote or demote Moody? Could Marshall reassign Moody with significantly different responsibilities or make a decision that caused a significant change in her benefits? The record undoubtedly answers all of these questions in the negative.
This case demonstrates that even "bright line rules" involve lines that are not always as brightly defined as they appear to be.

Friday, September 1, 2017

Third Circuit on Title VII, ADA, and 1983 claims

Yesterday, the Third Circuit issued a precedential opinion in Williams v. PHRC.

Williams sued the PHRC for allegedly discriminating against her based on her race and disability. Generally, under 42 U.S.C. §1983, people can sue state actors for violating their federal rights - like constitutional rights, or statutory rights. Williams sued under Title VII (race discrimination) and under §1983, claiming violation of her rights under Title VII and the ADA (disability discrimination).

Not official use.
Here's the rub . . . plaintiffs cannot bring §1983 claims where Congress has created a "comprehensive enforcement scheme" to enforce the rights at issue. And, it certainly seems like Congress has done so with Title VII and the ADA. Thus, the Court concluded:
[P]laintiffs may not seek damages under § 1983 for stand-alone violations of either Title VII or the ADA.
Plaintiffs must instead proceed under Title VII and the ADA, not under §1983.

Why does this matter? It matters because discrimination claims under Title VII and the ADA generally require exhaustion of administrative remedies. In other words, Plaintiffs have to submit a charge of discrimination to the EEOC (and the state-equivalent, in PA the PHRC) before going to Court. This often involves informal resolution procedures too. For §1983 claims, plaintiffs can just go straight to court. Also, the time to file a §1983 claim is much longer than the time to file a charge with the EEOC. The Court sums it up nicely:
Given these respective statutes, Congress’s intent is clear. Allowing pure Title VII and ADA claims under § 1983 would thwart Congress’s carefully crafted administrative scheme by throwing open a back door to the federal courthouse when the front door is purposefully fortified.
Other circuits have held similarly.

Tuesday, August 15, 2017

Can employers fire employees for attending Charlottesville protests?

I'm sure you've already heard about the violence in Charlottesville this past weekend, and you've probably heard about the efforts to get the white supremacist protesters fired. Is is legal for employers to fire employees for attending the protests?


Generally, yes. Private employers can generally fire employees for any reason or no reason at all unless it conflicts with some established law or public policy (we call this "at will" employment). By now, you probably already know the lawyerly caveat you're about to get here . . . but, it depends. In fact, this may be one of the most convoluted issues ever to grace this fine blog.


Why isn't this like the Google memo guy (which I analyzed here). Google memo guy was working with his co-workers to address the terms and conditions of his employment with his employer ("protected concerted activity" under the NLRA). I have heard nothing to suggest that the Charlottesville protesters were engaged in this sort of protected activity. Also, as Jon Hyman notes, other exceptions may apply.

"Just Cause"

However, there are a few situations that strike me as a little dicier. For example, many employees have individual employment contracts or union collective bargaining agreements that require "just cause" for termination. The "just cause" determination is very case-specific and varies a little based on jurisdiction.

It's usually harder for the employer to establish just cause for a termination based on off-duty conduct. To give you a sense of what's required, Pennsylvania looks at these factors:
First, the nature of the job is an important consideration; an employee in a 'sensitive position' may be subject to dismissal if only to avoid the appearance of impropriety whereas an employee in a non-sensitive position may not . . . . A second relevant factor is whether the conduct in question demonstrates a lack of judgment that erodes confidence in an employee's character . . . . A third factor concerns safety. An employee whose job it is to protect the safety of others is expected to behave in a manner consistent with this goal even while off duty.
City of Phila. v. City of Phila. Civil Svc. Comm'n. Employers must also establish a "nexus" between the off-duty conduct and the employee's ability to perform the job. Established employee policies come into play too.

So, I really can't provide you with a blanket rule, because every situation is different. What job does the employee have? What was (s)he actually doing? Each situation requires individualized analysis, and we may see different results depending on whether the employee was a klansmen punching someone or just some gawker; a neo-nazi or some sort of free speech activist; or maybe just some poor parent who picked a *really* bad weekend to take their kid on a college visit to UVA. The facts matter. And, of course, don't get the wrong guy (example here).    

Free Speech

Private employees generally don't receive First Amendment protections in employment. However, public employees do. Broadly speaking, public employees have a right to speak on matters of public concern while acting as private citizens. Public employers are generally prohibited from retaliating against public employees for First Amendment protected speech. However, once again, this is a complex area of the law - I'm just throwing out some general considerations.

State Laws

As usual, I present this with the caveat that states have myriad laws that I'm simply unfamiliar with. For example, the D.C. Human Rights Act prohibits employment discrimination based on political affiliation; Colorado prohibits employment termination for lawful outside-of-work activities; and Connecticut applies something like First Amendment free speech protections even to private employees (ask Dan Schwartz - I don't know anything about it).


Somebody could write an entire book on all of the legal issues raised by firing employees who attended Charlottesville. Most of the time, employers can go ahead and pull the trigger; but, there are a ton of mines in that field.

Tuesday, August 8, 2017

About that guy who got fired from Google for writing that memo . . . .

The Setup

By now, you have probably already heard about the Google engineer who got fired for writing that memo - you know, this one. The memo addressed controversial subjects, and concluded in part:
Differences in distributions of traits between men and women may in part explain why we don't have 50% representation of women in tech and leadership.
The memo described "men's higher drive for status," discussed biological differences between the sexes, and concluded that "not all differences are socially constructed or due to discrimination." It also decried an "ideological echo chamber" at Google.

So, Google fired him for "advancing harmful gender stereotypes" and now he wants to sue. Does he have any viable claims? Sure sounds like it! That doesn't mean he'll ultimately be successful, just that he can likely plead some claims to get this in to court (following exhaustion of some administrative agency procedures).

A few caveats: 1. I don't know anything about California's bajillion (rough estimate) state-specific employment laws, so I'm only covering federal law; and 2. there are always countless facts that are not available to the public.

National Labor Relations Act (NLRA)

Based on this NYT article, it sounds like he's setting up NLRA retaliation claims. He may have a claim for retaliation for "protected concerted activity." Employees have the right to act  together (in "concert") for mutual aid or support to address the terms and conditions of employment.

The engineer distributed a memo to co-workers raising concerns about various employment practices at Google - sounds like protected activity to me. It also seems pretty clear that he was fired in retaliation for the memo. Per the NYT story, he actually also filed a charge with the NLRB prior to his termination (which would also be protected activity).

In other words, he's got a pretty nice NLRA retaliation claim cooking if he is in fact a covered employee (supervisors are generally not covered and I don't know enough about his work responsibilities to analyze this point). However, even protected conduct may lose its protection if it crosses the line - unfortunately, "the line" is very poorly defined (something like egregious, abusive, malicious, opprobrious, etc.). Google may have a decent defense if it can point to sufficiently inappropriate content in the memo. However, that's a tough burden for employers to clear (as a reminder, sometimes even calling your boss a "motherf*cker" is not enough to lose protection).

Title VII

Title VII prohibits discrimination on the basis of certain protected characteristics, including race and sex. It also prohibits retaliation against employees who oppose workplace discrimination based on those protected characteristics. To state a prima facie case of Title VII retaliation we need: (1) protected activity; (2) materially adverse action; and (3) a causal connection between the two.

Let's go to the memo:
Stop restricting programs and classes to certain genders or races. These discriminatory practices are both unfair and divisive . . . . Discriminating just to increase the representation of women in tech is as misguided and biased as mandating increases for women’s representation in the homeless, work-related and violent deaths, prisons, and school dropouts.
That sounds an awful lot like opposition to discrimination on the basis of race and sex (and, yes, men are just as much a protected class as women under Title VII). So we have element one. He was fired, so that will easily meet element two. And, again, he was pretty clearly fired for the memo, so that's element three.

That does not mean the employee wins though. Google can still prevail by showing that it had a legitimate non-retaliatory reason for the termination. Google could argue that he was not fired for the parts of the memo that opposed discrimination, but rather for the other parts of the memo that allegedly "advanc[ed] harmful gender stereotypes." Disentangling the protected from the unprotected content (and assigning Google's motives accordingly) could prove difficult though.


Based on the information I've seen so far, it sounds like he has some viable claims for NLRA and Title VII retaliation. Call it a hunch, but I think this guy may refuse a confidential settlement and payout to fight this one out in what he perceives as an ideological battle.

Monday, August 7, 2017

D.C. Circuit on Joint Employers (Sort Of)

On Friday, the D.C. Circuit issued its opinion in NLRB v. CNN. One of the issues was whether the NLRB applied the correct joint employer test.

As readers of this blog know, the NLRB announced a new "refined" standard for joint employment in Browning-Ferris. The new test no longer requires the putative joint employer to actually exercise direct and immediate control over the workers - the right to exercise even indirect control will do. In the CNN case, the NLRB applied something like the Browning-Ferris standard. There's just one problem . . . it decided the CNN case before Browning-Ferris.

So, the D.C. Circuit remanded the CNN case back to the NLRB concluding that it had inappropriately applied a new standard without (at the time) having properly considered application of a new standard:
Not official use.
In Browning-Ferris, the Board carefully examined three decades of its precedents and concluded that the joint-employer standard they reflected required “direct and immediate” control. It then criticized that standard. Thereafter, it forthrightly overruled those cases and set forth, as “a new rule” for identifying joint employment, a standard quite similar to the one the Board in the case before us claimed had been the standard all along.This an agency may do, as long as it provides a reasoned explanation for its change of course . . . . 
In the case on review here, however, the Board did none of those things. In characterizing the prevailing joint-employer standard, it did not grapple with its precedents in the manner of Browning-Ferris . . . . 
“[A]n agency changing its course must supply a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored, and if an agency glosses over or swerves from prior precedents without discussion it may cross the line from the tolerably terse to the intolerably mute.” Because the Board crossed that line here, we must set aside its finding that CNN was a joint employer.
(citations omitted). Welp, this sets up the pending appeal (also before the D.C. Circuit) in Browning-Ferris quite nicely. Unfortunately, it doesn't give us much to go on in analyzing joint employment. Even the D.C. Circuit decision in Browning-Ferris may not give us much finality - between a potential SCOTUS appeal, and a new Trump NLRB, the standard may yet evolve further.

Wednesday, August 2, 2017

Third Circuit on Attorney Fired for Refusing to Violate Rules of Professional Conduct

The Third Circuit recently issued an interesting precedential opinion in Trzaska v. L'Oreal USA, Inc.

A patent attorney for L'Oreal (the makeup company) claims that he was pressured to submit patent applications that he "did not in good faith believe were patentable" through a company-imposed quota (the patent team allegedly had an annual minimum number of patent applications). He told the company that filing such bad faith patent applications would violate the Rules of Professional Conduct ("RPCs") that he was bound to adhere to as promulgated by the Supreme Court of Pennsylvania and the U.S. Patent and Trademark Office.

Shortly after the attorney protested the quota, the company offered him two severance packages. After he rejected both of the severance packages, L'Oreal fired him. He filed a lawsuit claiming that he was wrongfully terminated in violation of a New Jersey statute that prohibits retaliation against an employee for refusing to violate a law, rule, regulation, or "clear mandate of public policy" (New Jersey Conscientious Employee Protection Act (“CEPA”)).

The Third Circuit reversed the district court's dismissal of the claim and held that he could proceed with his lawsuit because, "an allegation that an employer instructed, coerced, or threatened its patent attorney employee to disregard the RPCs binding him violates a clear mandate of public policy within the meaning of CEPA." The Court noted both the public interest in patents generally and the RPCs.

Sorry, but I have to call out the Court for this one: "Because his allegations against the beauty-products corporation are more than skin-deep, we reverse." Get it? 'Cause it's a makeup company?

Tuesday, July 18, 2017

Third Circuit on Hostile Work Environment (Is one "n-word" enough?)

Last week, the Third Circuit issued a precedential opinion in Castleberry v. STI Group. It's an interesting opinion, on appeal from a dismissal at the pleadings stage, on the legal standard for hostile work environment claims.

One issue is very clear: the correct standard is that the harassment must be severe or pervasive - meaning that either one very severe event or a slew of not-so-serious events may suffice to state a claim (or, presumably, some combination).
Not official use.

At one point, the Court frames the issue as:
Under the correct “severe or pervasive” standard, the parties dispute whether the supervisor’s single use of the “n-word” is adequately “severe” and if one isolated incident is sufficient to state a claim under that standard.
The Court appears to conclude that, yes indeed, one n-word can be enough. Although, the Court notes that "the resolution of that question is context-specific." Also, strangely, that does not appear to be the actual issue presented by the facts.
Here Plaintiffs alleged that their supervisor used a racially charged slur in front of them and their non-African- American coworkers. Within the same breath, the use of this word was accompanied by threats of termination (which ultimately occurred). This constitutes severe conduct that could create a hostile work environment. Moreover, the allegations could satisfy the “pervasive” alternative established by the standard. Plaintiffs alleged that not only did their supervisor make the derogatory comment, but “on several occasions” their sign-in sheets bore racially discriminatory comments and that they were required to do menial tasks while their white colleagues (who were less experienced) were instructed to perform more complex work. Whether these allegations are true and whether they amount to “pervasiveness” are questions to be answered after discovery (for example, after determining how many times racial remarks were scribbled on the sign-in sheets). Plaintiffs have pled a plausible claim of a hostile work environment under either theory—that the harassment was “severe” or “pervasive.”
What if the slur were not accompanied by threats of termination that came to fruition? What if we were at summary judgment instead of the pleadings stage? The Court stops short of holding that one racial slur is always enough - but it came pretty close.

Sidenote: This was a Section 1981 race discrimination in contracts claim - but presumably the same analysis would apply to the more common Title VII discrimination an hostile work environment claims.