EEOC updates COVID-19 guidance to address retaliation

The EEOC just keeps updating its What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws guidance. Check out the latest addition, Section M. Retaliation and Interference. 

Not official use.

Honestly, this just looks like pretty basic retaliation stuff, but with a helping of COVID-19-related hypos. For example:

• "an Asian American employee who tells a manager or human resources official that a coworker made abusive comments accusing Asian people of spreading COVID-19 is protected from retaliation for reporting the harassment." 
• "the EEO laws prohibit an employer from retaliating against an employee for requesting continued telework as a disability accommodation after a workplace reopens."
• "requesting religious accommodation, such as modified protective gear that can be worn with religious garb, is protected activity."

This could be a helpful resource or reminder for employers though. 

Judge Amy Coney Barrett and the Case of the Last-Minute N-Word

 Back to some Judge Amy Coney Barrett employment law. Today's episode features Smith v. Illinois Dept. of Transportation. This was a hostile work environment and retaliation case, with a twist at the end. 

The employee alleged that he was told to "shut the f[] up," called a "stupid dumb motherf[]," and one guy threatened to "kick [his] ass" (f-words quoted as they appear in the opinion - you know I'd ordinarily let 'em fly in quotations). Does that create a hostile work environment claim? No. Why? No signs of discriminatory intent - hostile work environment claims arise under the discrimination statutes, so just being hostile is not enough. 

What about his retaliation claims? Well, the problem there was that he had a long, documented history of performance issues that were unrelated to any of his protected activity:

He received multiple ratings of “unsatisfactory” in two different formal performance reviews. His failings as an employee were chronicled in conversations and emails from a number of different supervisors and coworkers, who considered him unsafe, argumentative, and unable to follow instructions.

So, no retaliation claim either. 

Are you ready for the twist? Near the end of his employment, a former supervisor allegedly called him a "stupid ass ni[]." Judge Barrett acknowledged that this particular racial epithet "falls on the more severe end of the spectrum." Ultimately, she still affirmed summary judgment for the employer. Why? 

• "He introduced no evidence that Colbert’s use of the n-word changed his subjective experience of the workplace." Instead, "his supervisors made him miserable throughout his employment," but for reasons unrelated to race, and there was no evidence that this last epithet subjectively made things worse.

• And, his employment was already over. "The Department had initiated termination proceedings against Smith two weeks before, so he knew that he was about to be fired. And while things certainly could have gotten worse for Smith after the racially charged confrontation with Colbert, he offers no evidence that they did."

I've already seen some criticism of this decision. Although it was a panel decision affirming the district court (i.e. the four judges who looked at it all reached the same conclusion), I could also see a different panel coming out the other way. One could also contrast this opinion and then-Judge Kavanaugh's dicta on whether one n-word is enough to create a hostile work environment (that said, the facts on which Judge Barrett based her conclusion were not present in Judge Kavanaugh's case). 

Third Circuit: First Amendment protects public employee's report of a crime

The Third Circuit issued a precedential opinion in Javitz v. County of Luzerne.

The plaintiff was the Director of Human Resources for Luzerne County. She claims that a union representative unlawfully recorded an investigatory meeting in which she participated (a violation of Pennsylvania's wiretapping law, 18 Pa. Cons. Stat. § 5703). The plaintiff reported the alleged crime to her supervisor, and they met with the DA (who referred it to the AG).

Not official use. 

Welp, she got fired. And, she claims it was in retaliation for reporting the alleged crime. Is she protected by the First Amendment? The First Amendment does protect public employees who speak as private citizens on matters of public concern. There's a big hurdle though - employee statements made pursuant to their official duties are not protected.

Here, she was complaining about an incident that occurred at work, and she reported it to her work supervisor. The Third Circuit, however, concluded that she was till protected by the First Amendment. The reason? Reporting the crime fell outside of her job duties.

Sure, she had access to high level employees to whom she reported the crime as part of her job. And, the County Ethics Code encouraged reporting of "violation[s] of the law." But, it was not "some formal job duty or responsibility" to report the crime. Her case was therefore remanded back to the trial court to allow her to proceed on her First Amendment claim
.

Second issue: She was not protected by the 14th Amendment's Due Process Clause because at will employees do not have a "property" interest in ongoing employment.

Attorney-Client privilege in internal sexual harassment investigations

Here's an interesting case out of the Southern District of New York, dealing with attorney-client privilege in internal investigations. The case is Barbini v. First Niagara Bank (HT: The Legal Intelligencer, Ruling Highlights Narrow Path in Defending Sexual Harassment Complaints).

The plaintiffs claimed that they complained about sexual harassment, and then their employer merely warned the harasser while firing them. The employer claims it fired them for notary law violations.

Not official use.

Not surprisingly, the employer consulted with its in-house counsel on the harassment issue and the notary issues. Is that protected by attorney-client privilege? The Court says, yes. While recognizing the dual-role that in-house counsel sometimes serves (attorney and business consultant), the Court held:

Communicating legal analysis to the person ultimately deciding whether to fire and employee is precisely the type of legal advice that is protected by the attorney-client privilege. (internal citations and quotations omitted). 

But wait, there's more!

Here, however, the Court also concluded that the employer waived the privilege. How? The employer did not directly raise an "advice of counsel" defense - but it did raise the Faragher/Ellerth defense.* Deposition testimony from an HR rep also established implied reliance of the advice of in-house counsel on the harassment and notary issues.

This goes straight to the heart of the employer's defense - that it looked into the harassment claims and concluded that termination was not necessary for the alleged harasser, and in reliance on advice from counsel concluded that the complainants/plaintiffs had violated New York notary laws. As the Court stated:

Defendants cannot have their cake and eat it too. There is virtually no way for any decisionmaker or adversary to assess the veracity of Defendants’ defense if the documents and conversations related to both investigations are concealed.

Frankly, I'm not sure that every court would reach this same conclusion. This case serves as a cautionary tale though - attorney-client communications (even legal advice) will not always be protected by a court. Particularly, privilege may be waived where the employer attempts to rely on the advice and investigation of its counsel as a defense.

* The Faragher/Ellert defense is an affirmative defense requiring employers to establish "(1) the employer exercised reasonable care to prevent and correct any-harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventative or corrective opportunities that the employer provided."

Third Circuit on federal employee retaliation claims

The Third Circuit faced two issues in Komis v. DOL:

First - Can federal employees bring retaliation claims under Title VII. The Court concluded (in alignment with other circuits) that, yes, federal employees may bring retaliation claims under Title VII.

Not official use.

Second - Does the same standard govern federal and private sector retaliation claims? On this one we get a punt. The Court declined to answer because it was not necessary to resolve the case. Although it was not resolved, the issue itself is interesting.

Title VII initially (in 1964) contained provisions prohibiting private employment discrimination, and private employment retaliation. In 1972, Congress amended Title VII to prohibit federal employment discrimination - but that provision does not expressly address retaliation.

As the Court held, federal employees may still bring retaliation claims - but does the same standard apply? In a well-known case, Burlington Northern, the Supreme Court contrasted the standard under the private employment discrimination provision (requiring an adverse employment action, affecting terms and conditions of employment), and the anti-retaliation provision (requiring only a materially adverse action - that would dissuade a reasonable person from engaging in protected activity).

Which standard applies to federal employees (given that they only have the anti-discrimination provision but not the express anti-retaliation provision)? We still don't know. The Court did note, however, that the D.C. Circuit and 7th Circuit both applied the Burlington Northern standard to federal sector employees.

Miles on "The risky intersection of employee discipline and protected activity"

Straight from the Department of Shameless Self-Promotion: I am quoted in HR Dive's article, The risky intersection of employee discipline and protected activity. It also includes fellow #emplaw blogger, Eric Meyer of The Employer Handbook fame. Enjoy!

James Damore's (aka Google Memo Guy's) NLRB charge withdrawn

An interesting update on James Damore aka Google Memo Guy, who I wrote about previously. As I stated in that post, I thought he had a viable protected concerted activity claim, but that "Google may have a decent defense if it can point to sufficiently inappropriate content in the memo."

The NLRB recently released a January 16, 2018 Advice Memorandum. The tldr version: 

Used in commentary. Not licensed use.

[W]hile much of the Charging Party’s memorandum was likely protected, the statements regarding biological differences between the sexes were so harmful, discriminatory, and disruptive as to be unprotected.

Thus, the Associate GC's advice was for the region to dismiss the charge.

The case page includes a docket entry from January 23, 2018 (just one week after the advice memo), "Letter Approving Withdrawal Request." Does this mean Damore gives up? His new class action lawsuit tells me, probably not.

3d Cir: FCA retaliation requires "but for" causation

Not official use.

Last week, the Third Circuit issued a precedential opinion in DiFiore v. CSL Behring LLC. DiFiore claimed that her employer fired her (technically, constructive discharge) in retaliation for whistleblowing activity. In particular, she internally reported concerns about "the activities of CSL and its employees in marketing drugs for off-label use and including off-label use in sales forecasts."

DiFiore included a claim of retaliation under the False Claims Act (FCA). The Third Circuit concluded that a jury instruction that FCA retaliation required "but for" causation (as opposed to the lower burden of a "mixed motive" instruction) was appropriate.

High school friends win Equal Pay Act case

The law can get complicated . . . and then there's this case, which, according to the EEOC press release, is pretty straightforward:

[T]wo high school friends, Jensen Walcott and Jake Reed, applied to work at Pizza Studio as "pizza artists" in 2016. After both were interviewed and offered jobs, Walcott and Reed discussed their starting wages. Upon learning that Reed was offered 25¢ more per hour, Walcott called the restaurant to complain about the unequal pay. When she did so, the company immediately withdrew its offers of employment from both Walcott and Reed.

Not official use.

EPA claims can get pretty tricky because employers have so many different factors they can point to when trying to justify pay disparities. I suspect there are fewer defenses available when the plaintiff is a high school-level "pizza artist" (and the retaliation sounds pretty blatant). In any event, what did they win?

Federal District Judge Carlos Murguia's order awards both Walcott and Reed back pay for lost wages as well as liquidated, compensatory, and punitive damages . . . .today's order also requires [Defendant] to implement significant policy changes, conduct training, collect and analyze pay and other data, and report data and complaints to the EEOC, each in order to prevent future violations of the law.

The EEOC press release also reminds us about their priorities identified in the Strategic Enforcement Plan:

1. Eliminating Barriers in Recruitment and Hiring.
2. Protecting Vulnerable Workers, Including Immigrant and Migrant Workers, and Underserved Communities from Discrimination.
3. Addressing Selected Emerging and Developing Issues.
4. Ensuring Equal Pay Protections for All Workers.
5. Preserving Access to the Legal System.
6. Preventing Systemic Harassment.

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.

Conclusion

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.
 

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?

Retaliation, "but for" causation, and the prima facie elements

Back in 2013, in UTSMC v. Nassar, the Supreme Court held in no uncertain terms that "Title VII retaliation claims must be proved according to traditional principles of but-for causation." That seems simple enough - but wait, earlier this year the Third Circuit clarified/complicated things a bit.

In Carvalho-Grevious v. Del. St. Univ., the Third Circuit held:

Not official use.

At the prima facie stage, a plaintiff need only proffer evidence sufficient to raise the inference that her engagement in a protected activity was the likely reason for the adverse employment action, not the but-for reason.

Wait, doesn't that conflict with the Supreme Court's decision? Not exactly . . .

As the Third Circuit explained, the "but for" causation standard is the plaintiff's ultimate burden of persuasion. In other words, that's the thing the employee will ultimately have to prove to win the case. Whereas, the prima facie elements ((1) protected activity; (2) adverse action; and (3) causal connection) are just the initial burden of production in a broader burden-shifting framework. So, the bar for establishing the causal connection - and shifting the burden of production, but not persuasion, over to the employer to proffer a legitimate non-retaliatory reason - is the lower "likely reason" standard.

While the Nassar "but for" standard is a blessing for employers at trial, it does not appear to be carrying much weight in the summary judgment context (at least here in the Third Circuit).

3d Cir. on FMLA retaliation and the honest belief defense

On Monday, the Third Circuit issued a precedential opinion in Capps v. Mondelez Global, LLC. The employee had been certified for intermittent FMLA leave. One day he called off from work, invoking his intermittent FMLA leave... and proceeded to go to the local pub and get hammered.

On the way home, wouldn't you just know it? He gets nabbed for a DUI (.339% BAC!). He spends the night in jail, and then calls off the next day too. Well, the employer had no idea anything strange was afoot, until an HR manager saw the DUI in the newspaper. The employer started to piece together that the arrest date and the employee's other court dates matched dates that he was supposedly using FMLA leave. Suspecting dishonesty, they fired him.

Of course, the employee claims it was all a misunderstanding and that he just so happened to have leg pain on the days of his arrest and hearings. So, an FMLA lawsuit ensued. The Court recognized the employer's "honest belief" (aka "mistaken belief") defense. The Court noted that the employee had been recertified for FMLA for about a decade without incident.

[T]he undisputed evidence indicates that when Oxenford and McAvoy reviewed the criminal court docket related to Capps’ DUI case, the docket reflected that the arrest date and “court dates” appeared to coincide with days on which Capps had taken FMLA leave. Although Capps argues that Mondelez was mistaken in its belief that Capps misused his leave or was otherwise dishonest with regard to the leave taken, there is a lack of evidence indicating that Mondelez did not honestly hold that belief.

So, the Court concluded that the employer was entitled to summary judgment.

Frankly, it's not clear that the employer was even mistaken in this case. The point is that it does not matter if the employer was right or wrong, so long as the employer really believed the non-retaliatory reason for the termination.

Miles on New EEOC Retaliation Guidance

Not official use.

Straight from the shameless self-promotion department, here's a link to an HR BLR article regarding the EEOC's new retaliation guidance. I consulted with the author, Kate McGovern Tornone, and she included some quotes from me in the article.

You can read the EEOC's new Enforcement Guidance on Retaliation and Related Issues here. The article addresses a few hot-button issues, such as:

• New protection for bad faith or unreasonable internal reports;
• Protected activity relating to sexual orientation discrimination;
• The "manager rule"; and 
• ADA interference provisions.

Gretchen Carlson sues Roger Ailes of Fox News for sexual harassment and retaliation

Yesterday, Gretchen Carlson filed a lawsuit against Roger Ailes, the CEO of Fox News (Complaint here). Here are a few of the highlights (lowlights?) she alleges:

Cover of Getting Real
by Gretchen Carlson.

• Ailes "sabotaged her career because she refused his sexual advances."
• Fox & Friends co-host Steve Doocy harassed her, mocked her, belittled her, treated her as a "blond female prop," and "pull[ed] down her arm to shush her during a live telecast."
• Carlson complained and Ailes responded by calling her a "man hater" and sexually propositioning her because "sometimes problems are easier to solve" that way.

She also alleges that Ailes treated her worse than "other Fox News hosts who did not complain about harassment and rebuff his sexual advances." Now, I don't want to infer too much here, but that sounds like other hosts traded sexual favors for perks, doesn't it? (but I acknowledge that there are other ways to read it). 

Carlson claims that Ailes retaliated against her by removing her from O'Reilly Factor segments, firing her from Fox & Friends (the morning show) to move her to an afternoon slot, and ultimately firing her by declining to renew her contract on June 23, 2016. 

This case could go away quietly with a confidential settlement agreement... or it could result in media warfare in public - we'll see. Fox News has had some issues with sex discrimination in the past, including this EEOC suit on behalf of Catherine Herridge, and, of course, who could forget the cringe-worthy loofa/falafel allegations against Bill O'Reilly?

How many ways can you violate employment laws in one conversation?

Time for an issue-spotter pop quiz. I'll paraphrase the setup from this CDT article, Teen fired after asking for the same pay as her male co-worker at a pizza shop (assuming the facts as-reported are true):

A young woman calls her employer to complain that a young man with the same job (and experience level) is making more money for the same work. The employer fires her immediately and claims it was for violating a policy against discussing pay with co-workers.

Ready, annnnd.... go!

•  The male gets paid more than the female for substantially equal work - prima facie Equal Pay Act violation!

• The employer treated a substantially similar male better than the female in an employment action (pay decision) - prima facie disparate treatment claim under Title VII!

• The employee engaged in protected activity (complaining about wage discrimination), suffered a materially adverse action (termination), and there appears to be a causal connection (extraordinarily short temporal proximity) - prima facie retaliation claim under Title VII!

• The employee acted in concert with her male co-worker to address the terms and conditions of her employment by discussing their wages and got fired for expressly that reason - prima facie case of retaliation for protected concerted activity under the NLRA (at least according to the NLRB's interpretation of it)! 

And that's just the federal law! Four solid prima facie cases in a two-sentence setup. That's gotta be some kind of record. Did I miss any? The employer may have some defenses (and there may be disputes of fact), but this certainly does not sound very good. 

HT: Saw it on Facebook via Justin Miller. 

The Unemployment Compensation Retaliation Exception to "At Will" Employment

In my Penn State employment law class, we cover the Pennsylvania Supreme Court's decision in Weaver v. Harpster. The case demonstrates the strong presumption of "at will" employment in Pennsylvania - the idea that an employer can terminate an employee for any reason or no reason. Of course, there are some notable exceptions, most notably including anti-discrimination statutes, collective bargaining agreements, contracts, and public policy.

Public policy sounds like it might be pretty broad . . . except it's not. In Weaver, the employee worked for an employer that was too small to be covered by the anti-discrimination statutes. The Court told her (paraphrasing) "tough luck" when she tried to file a wrongful termination claim for sexual harassment that forced her to resign. Yup, even sex discrimination is not covered by the public policy exception to at will employment in Pennsylvania (although, to be clear, sex discrimination is expressly prohibited by statute, the PHRA, for employers with four or more employees).

So, what is? The Weaver opinion noted some exceptions, including retaliation related to worker's compensation claims and the following:

The old Centre County CareerLink, where
UC Referee hearings were held.

• Highhouse v. Avery Trans. (concluding that an employee was wrongfully discharged for filing an unemployment compensation claim);
• Kroen v. Bedway Sec. Agency (holding that an employee was wrongfully discharged for refusing to submit to a polygraph test); 
• Reuther v. Fowler Williams, Inc. (concluding that employee cannot be discharged for serving on a jury); and
• Novosel v. Nationwide Ins. Co. (holding that public policy was violated where the employee was discharged for refusal to participate in a lobbying effort).

Note Highhouse and the Unemployment Compensation retaliation exception. One semester, I had the following exchange with a student:

STUDENT: Don't you have to be unemployed to collect unemployment compensation?
ME: Yes....
STUDENT: How do you have a job to get fired from in retaliation for filing an unemployment compensation claim?
ME: Ummm, errr, well... uhhh... I don't know.

Admitting you have no clue is tough, so I set out to resolve this apparent dilemma. It turns out that the employee in Highhouse was something of a seasonal truck driver, and for a few months each year he would have little or no work. So, he filed for UC in the "off season." The employee claimed he was discharged (possibly constructive discharge) in retaliation for filing the UC claim. And, voila, this became one of the rare public policy exceptions to at will employment in Pennsylvania.

I imagine this exception is seldom-used. First, because of the point that my student raised - most people who file UC claims don't have a job from which to get fired. Second, recent changes to UC make it even harder for seasonal employees to qualify for benefits in the "off season." Third, I'm guessing it's difficult for an employee to establish a causal connection between an off-season UC claim and not receiving work the following season. Fourth and finally, employers know it's unlawful now (assuming they keep up with these things).

EEOC Rejects "Manager Rule" in New (Proposed) Retaliation Guidance

I'm working my way through the EEOC's proposed guidance on retaliation claims. On pages 13-16, the EEOC specifically rejects the "manager rule" and notes that DOL rejects it too. The guidance cites Joint Amicus Brief for the Secretary of Labor and the Equal Employment Opportunity Commission, Rosenfield v. GlobalTranz Enterprises, Inc., __ F.3d __, 2015 WL 8599403 (9th Cir. Dec. 14, 2015) (No. 13-15292)(available here).

What is the "manager rule?" I've covered this before in the context of Title VII:

Not official use.

Sometimes, in retaliation cases, the employee claiming to have opposed discrimination also has a job responsibility that involves policing discrimination in the workplace. In litigation, employers will often argue that the employee has not really engaged in "protected activity" because the employee was just doing his or her job... not really opposing discrimination as contemplated in Title VII.

What does the EEOC have to say about it? Well, from the proposed guidance:

[I]n determining if protected opposition occurred, the focus should not be on the employee’s “job duties” but rather on the “oppositional nature of the employee’s complaints or criticisms, [and any other rule would be] inapposite in the context of Title VII retaliation claims.” 

Rejection of the “manager rule” under Title VII does not mean that every human resources employee, or every managerial employee with a duty to report discrimination, will have a viable claim of retaliation. A managerial employee with a duty to report or investigate discrimination still must satisfy the same requirements as any other employee alleging retaliation under the opposition clause described below -- meeting the definition of “opposition,” acting with a reasonable and good faith belief that the opposed practice is unlawful (or would be if repeated), and using a manner of opposition that is reasonable.

I'm not sure that's a model of clarity, but it's a start.

Are No Re-Hire and No Re-Apply Clauses Unlawful?

I attended the ABA Labor and Employment Law Conference this past weekend. It was my first time, but it will not be my last. It was a great conference! I learned a lot, but one particular issue stuck out for me: Are "no re-hire" and "no re-apply" clauses unlawful?

When employers and employees part ways, they often enter into separation agreements. The agreement almost always includes a waiver and release of all claims (including discrimination). Often, the agreement also includes a clause stating that the employee cannot re-apply for employment with that employer (or understands that (s)he will not be re-hired). These clauses are pretty common, so I was surprised when an EEOC attorney at the conference stated that the agency takes the position that  such clauses are unlawful (vaguely referencing retaliation).

Really!? I went off in search of more information. I couldn't find much, but I did find this white paper by Wendi Lazar of Outten and Golden: Settling the Case and Wrapping Up Employment: Negotiating Strategies, Drafting Realities:

See Tom Gilroy, EEOC Opposes Settlement Clauses That Bar Re‐Application and Rehiring, BNA DAILY LABOR REPORT, Apr. 4, 2008, at C1 (stating that “the agency opposes as a matter of policy both ‘no‐hire’ and ’no‐re‐apply’ covenants” as such clauses “are not good public policy, since they could be viewed almost as retaliation for coming forward for a discrimination claim”).  At an ABA Labor and Employment Law Section meeting on April 3, 2008, an EEOC attorney stated that the Commission will oppose so‐called “no rehire” or “re‐application” clauses in settlement or employment agreements.  See http://suitsintheworkplace.com/blogs/archive/2008/04/05/827.aspx.  However, case law on the issue seems to suggest just the opposite.  To date, courts and the EEOC have upheld settlement agreements or any other agreements containing no re‐employment provisions.  See Jencks v. Modern Woodmen of America, 479 F.3d 1261, 1265‐66 (10th Cir. 2007) (affirming district court’s holding that employee waived entitlement to re‐employment or reinstatement with the employer in an enforceable settlement agreement and that such agreement was a "legitimate non‐discriminatory reason for declining employee's application"); Austin v. Spirit Airlines, Inc., No. 08 Civ. 60540, 2008 WL 4927003, at * (S.D. Fla. Nov. 17, 2008) (on motion to enforce a settlement agreement, compelling plaintiff to execute a full settlement agreement, including a no‐rehire provision); Salerno v. City Univ. of N.Y., No. 99 Civ. 11151, 2005 WL 578944, at *3 (S.D.N.Y. Mar. 10, 2005) (imposing a settlement judgment that included a no‐reemployment provision and noting that “a bar on future employment is not unusual”)); Franklin v. Burlington N. & Santa Fe Ry. Corp., No. 03 Civ. 228, 2005 WL 517913 (N.D. Tex. Mar. 3, 2005), aff'd, 174 Fed. Appx. 831 (5th Cir. Apr. 5, 2006) (holding that employee failed to show that employer’s refusal to process plaintiff’s application on the basis of the separation agreement, which the company believed to include a no‐rehire provision, was pretextual); Khou v. Methodist Hosps. of Dallas, 2004 U.S. Dist. LEXIS 4148, (N.D. Tex. 2004), aff'd, 2005 U.S. App. LEXIS 4206 (5th Cir. 2005) (court affirmed judgment against an employee who applied for a job after entering into a separation agreement where employee promised to voluntarily and permanently resign); Homeport Ins. Servs., Inc. v. Lundy, B236276, 2012 WL 5385640, at *5 (Cal. Ct. App. Nov. 5, 2012) (finding no reemployment provision to be enforceable) (unpublished/noncitable); O'Brien v. Potter, 2004 EEOPUB LEXIS 448 (Feb. 3, 2004) (holding that the settlement agreement between the parties, which included a no‐rehire provision, was enforceable); Jablonski v. Battista, EEOC DOC 01A23730 (Sept. 17, 2003) (enforcing no re‐employment clause in agreement).

Sorry for the long bloc quote with string citation, but it really does a great job of addressing the issue (sadly, the blog link seems to be dead).

The EEOC attorney's position was not well-received at the conference, and she acknowledged that zero case law supports the position. One audience member "politely" suggested that if they couldn't find a single court to side with them in 50+ years, perhaps it was time to move on. The EEOC attorney responded that the agency often seeks to move the law and alter the status quo.

I certainly understand the agency's role in changing the law. However, this places employers in the unenviable position of choosing between what the law apparently allows, and drawing fire from the EEOC as a test case.

SCOTUS Grants Cert. in First Amendment "Perceived Support" Case

SCOTUS kicked off their new season last Thursday with some cert. grants, including a new employment law case. The Court granted cert in Heffernon v. City of Patterson.

I blogged about this case earlier in the year following the Third Circuit's decision. Basically, a public employee claims he was demoted after he was spotted picking up a campaign yard sign supporting a particular mayoral candidate. He filed a First Amendment retaliation claim. As it turns out, he was just picking up the sign for his mother and was not attempting to make any political statement at all. So, the Court held that he had not engaged in First Amendment-protected speech.

The Petition for Certiorari describes the issue as:

Whether the First Amendment bars the government from demoting a public employee based on a supervisor’s perception that the employee supports a political candidate.

At the time of the Third Circuit decision, I wrote:

But wait . . . are you telling me that a public employer can retaliate against an employee for supporting a political candidate if it turns out they're wrong about his actual support? Pretty much. The Court expressly rejected this "perceived support" theory ("where the employer’s retaliation is traceable to a genuine but incorrect or unfounded belief that the employee exercised a First Amendment right."). 

Game over. Employer wins, employee loses.

It turns out I was wrong. It was not "game over," because the Supreme Court will now hear this case. Instead, it's "game on."