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Wednesday, April 29, 2015

SCOTUS: EEOC Conciliation is Mandatory and Reviewable

The Supreme Court just issued its opinion in Mach Mining, LLC v. EEOC.

Title VII requires the EEOC to first attempt "conciliation" prior to filing a lawsuit. In this case, the EEOC just sent two letters to the employer: (1) Notifying the employer that a representative would be contacting them about the conciliation process; and (2) Notifying the employer that conciliation efforts had been unsuccessful. What conciliation efforts? Exactly.

The Supreme Court held that courts have the authority to review whether the EEOC fulfilled its conciliation duties. However, the scope of review is very narrow. Let's cut to the chase - what does the EEOC need to do, how does it get reviewed, and what's the remedy for failure? Per the syllabus:
The proper scope of review thus matches the terms of Title VII’s conciliation provision. In order to comply with that provision, the EEOC must inform the employer about the specific discrimination allegation. Such notice must describe what the employer has done and which employees (or class of employees) have suffered. And the EEOC must try to engage the employer in a discussion in order to give the employer a chance to remedy the allegedly discriminatory practice. A sworn affidavit from the EEOC stating that it has performed these obligations should suffice to show that it has met the conciliation requirement. Should the employer present concrete evidence that the EEOC did not provide the requisite information about the charge or attempt to engage in a discussion about conciliating the claim, a court must conduct the factfinding necessary to resolve that limited dispute. Should it find for the employer, the appropriate remedy is to order the EEOC to undertake the mandated conciliation efforts.
Justice Kagan authored the unanimous opinion.


Monday, April 27, 2015

BREAKING: SCOTUS Grants Cert. in Employment Discrimination Timing Case

A few minutes ago, the Supreme Court granted certiorari in Green v. Donahoe (order here | SCOTUSblog case page here). The issue actually seems pretty straightforward. Per the Petition for Writ:
Under federal employment discrimination law, does the filing period for a constructive discharge claim begin to run when an employee resigns, as five circuits have held, or at the time of an employer’s last allegedly discriminatory act giving rise to the resignation, as three other circuits have held?
Sounds like an interesting issue, that should have a bright line rule.

Thursday, April 23, 2015

Fired for What!? - The Great Popeye's Fried Chicken Caper

A Popeye's shift manager (who happens to be pregnant) was fired from her job. Why? Well, she claims she was fired because an armed robber held up her store and she refused to pay back the money the robber stole. The franchise owner claims she "was fired because she didn't follow company policy, leaving too much money in the cash register. And this wasn't her first offense."

The plot thickens! Now, Popeye's corporate has weighed in: "We have spoken to the local franchise owner of the restaurant, and he has taken immediate action to reach out to the employee to apologize and rectify the situation."

Does she have her job back? Who robs a Popeye's? Why don't we have delicious Popeye's fried chicken and the $1.19 two-piece meal special here in State College? So many questions left unanswered . . . .

Monday, April 20, 2015

Miles on Braun v. Wal-Mart

Straight from the shameless self-promotion department . . . the latest issue of the Pennsylvania Bar Association Civil Litigation Section Newsletter is now available. Jump straight to my summary of the PA Supreme Court's opinion in Braun v. Wal-Mart here.

The PA Supreme Court affirmed a $188 million judgment against Wal-Mart for wage and hour violations. Wal-Mart has a petition for certiorari pending before the United States Supreme Court.

April Employment Law Blog Carnival (#ELBC) is LIVE!

The latest edition of the Employment Law Blog Carnival (#ELBC for the cool kids on Twitter) is now available: The April Showers Edition. Thanks to Ari Rosenstein at CPEhr for hosting!

Wednesday, April 15, 2015

Lawffice Links - Hodge Podge

I've had a busy week, so please excuse the dearth of blogging. There have been a few interesting employment law developments that deserve some recognition though. Have some Lawffice Links to get caught up:
Enjoy!

Thursday, April 9, 2015

EEOC on Transgender Harassment, Discrimination, and Restrooms

The EEOC issued an important new decision regarding transgender discrimination in Lusardi v. Dept. of Army (linked here, embedded below). The employee transitioned from a man to a woman and explained the transitioning process to (now-) her employer.

Rather than allow the employee to use the common women's restroom, the employer required her to use a single-use restroom (the employer claims the employee collaborated on this plan). The EEOC held that denying the employee use of the common women's restroom was disparate treatment on the basis of sex in violation of Title VII. To get there, the EEOC had to hold that the bathroom denial rose to the level of "adverse employment action" - a call that could easily go either way.

Also, the employee's team leader continued to occasionally refer to her by her male name, using male pronouns, and often calling her "sir." The EEOC concluded that this was sex-based harassment. Whether these incidents constituted "severe or pervasive" harassment (a requirement for harassment claims) was another close call.

Clearly, the EEOC has gone all-in on utilizing Title VII to protect transgender employees from workplace discrimination. Whether courts will address these issues in the same manner remains an open question.

 

Tuesday, April 7, 2015

New NLRB Guidance on Quickie Election Rules

Not official use.
The NLRB's new "quickie election" rules - more recently dubbed "ambush elections" by employers - are set to take effect on April 14, 2015 (one week from today). If you were just sitting around thinking, "I wish there was a clear, concise, 36-page memo to explain the changes" . . . then great news! The NLRB's General Counsel just published Memorandum GC 15-06: Guidance Memorandum on Representation Case Procedure ChangesEffective April 14, 2015. Enjoy!

Monday, April 6, 2015

The NLRA protects *that* Facebook post!?

If an employee uses social media to address the terms and conditions of employment with his or her fellow co-workers, then the posts are generally protected by the National Labor Relations Act (NLRA). So, for example, if an employee posted "Vote YES for the UNION!!!!!!!" on Facebook and his Facebook friends included co-workers, then the NLRA protects that post. In other words, the employer would violate the NLRA if it fired the employee for such a post.

However, such speech can lose its protection if it is too egregious, abusive, malicious, or highly profane. [Earmuffs kids, the language is about to get "Parental Advisory"]. In Perez Pier Sixty, an employee posted the following to Facebook:
Bob is such a NASTY MOTHER FUCKER don’t know how to talk to people!!!!!! Fuck his mother and his entire fucking family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!
Now, surely that post lost its protection for... ya know... the f-your-mom part? Right? RIGHT!?

Nope! The NLRB actually held that the Facebook post was protected activity under the NLRA. The NLRB relied in part on the employer's tolerance of profanity in the workplace. So, apparently if employer's tolerate some cursing in the workplace, employees have a right to post this profane vitriol online so long as they toss a "Go Union!" on the end.

HT: Eric Meyer via The Employer Handbook. I'm not gonna lie . . . at one point I checked the date on his blog entry to make sure it wasn't April 1. Nope, April 3.

Thursday, April 2, 2015

The ADAAA, Young v. UPS, and the new state of pregnancy accommodation law

In Young v. UPS, the Supreme Court created a framework for analyzing Title VII (including the Pregnancy Discrimination Act amendments) discrimination claims based on an employer's failure to accommodate pregnant employees. As usual... it's complicated. But the gist is that an employee may take a case to trial by merely showing that "the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers" - unless the employer has a "sufficiently strong" justification (whatever that means).

But, wait! What about the Americans with Disabilities Act (ADA), including the 2008 amendments (ADAAA)? As the Supreme Court noted in Young:
We note that statutory changes made after the time of Young’s pregnancy may limit the future significance of our interpretation of the Act. In 2008, Congress expanded the definition of “disability” under the ADA to make clear that “physical or mental impairment[s] that substantially limi[t]” an individual’s ability to lift, stand, or bend are ADA-covered disabilities. ADA Amendments Act of 2008, 122 Stat. 3555, codified at 42 U. S. C. §§12102(1)–(2). As interpreted by the EEOC, the new statutory definition requires employers to accommodate employees whose temporary lifting restrictions originate off the job. See 29 CFR pt. 1630, App., §1630.2(j)(1)(ix). We express no view on these statutory and regulatory changes.
So, how about it? Employers must accommodate pregnant employees under the ADA? Not so fast!

The ADA defines "disability" as a "physical or mental impairment that substantially limits one or more of the major life activities of such individual." Here's the problem for pregnant employees: The Appendix to EEOC's regs provides interpretive guidance telling us that, "Other conditions, such as pregnancy, that are not the result of a physiological disorder are also not impairments." Therefore, pregnancy alone is not a disability.

But wait . . . there's more! "However, a pregnancy-related impairment that substantially limits a major life activity is a disability." The EEOC's Enforcement Guidance on Pregnancy Discrimination and Related Issues provides more info:
Some impairments of the reproductive system may make a pregnancy more difficult and thus necessitate certain physical restrictions to enable a full term pregnancy, or may result in limitations following childbirth. Disorders of the uterus and cervix may be causes of these complications. For instance, someone with a diagnosis of cervical insufficiency may require bed rest during pregnancy. One court has concluded that multiple physiological impairments of the reproductive system requiring an employee to give birth by cesarean section may be disabilities for which an employee was entitled to a reasonable accommodation. 
Impairments involving other major bodily functions can also result in pregnancy-related limitations. Some examples include pregnancy-related anemia (affecting normal cell growth); pregnancy-related sciatica (affecting musculoskeletal function); pregnancy-related carpal tunnel syndrome (affecting neurological function); gestational diabetes (affecting endocrine function); nausea that can cause severe dehydration (affecting digestive or genitourinary function); abnormal heart rhythms that may require treatment (affecting cardiovascular function); swelling, especially in the legs, due to limited circulation (affecting circulatory function); and depression (affecting brain function). 
In applying the ADA as amended, a number of courts have concluded that pregnancy-related impairments may be disabilities within the meaning of the ADA, including: pelvic inflammation causing severe pain and difficulty walking and resulting in a doctor's recommendation that an employee have certain work restrictions and take early pregnancy-related medical leave; symphysis pubis dysfunction causing post-partum complications and requiring physical therapy; and complications related to a pregnancy in a breech presentation that required visits to the emergency room and bed rest. In another case, the court concluded that there was a triable issue on the question of whether the plaintiff had a disability within the meaning of the amended ADA, where her doctor characterized the pregnancy as "high risk" and recommended that the plaintiff limit her work hours and not lift heavy objects, even though the doctor did not identify a specific impairment.
So, the pregnancy itself is not a disability... but a pregnancy-related impairment may be a disability.

Where does this leave employers? Probably confused and unable to discern whether the law requires them to accommodate a pregnant employee or not. But we have two primary initial inquiries:

1. Does the employer accommodate a large percentage of nonpregnant workers? (Young v. UPS); and

2. Does the employee have a "pregnancy-related impairment" that rises to the level of a disability? (ADAAA).

If the answer to either of those questions is "yes," then the employer must decide whether it can reasonably accommodate the employee without "undue hardship" (ADAAA) or if it has a "suffciently strong" justification for not doing so (Young v. UPS) (and a complicated list of other issues). Employers may want to consult a dart-throwing chimpanzee employment lawyer for this complex analysis.