The Courts Have Been Busy


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It’s been a busy last few months as courts from the U.S. Supreme Court to the lower courts have handed down important decisions affecting the workplace. And in one case, the law at stake wasn’t even an employment law but nonetheless it will have an impact on employers.

Liability for Supervisor Behavior

Employer liability in employment discrimination cases often hinges on whether the alleged harasser is a supervisor and not just a co-worker. If the harasser isn’t a supervisor, but is a co-worker, then the employer is liable if the employer was negligent. Negligence in this context means the employer  knew or should have known of bad behavior but didn’t take steps to prevent the behavior, or promptly and effectively remediate the conduct at issue, or the complaining employee failed to take advantage of opportunities to correct the behavior—such as making a complaint to management, for example.

But if the harasser is a supervisor, then the employer may be automatically liable (the lawyers call it “strict liability”) for the offending employee’s conduct–so, the definition of “supervisor” makes a huge difference in determining whether an employer can be held liable for the bad acts of its employees.

Some lower courts had defined supervisors in the same way as the Equal Employment Opportunity Commission, as someone who merely directed the work of the alleged victim of discrimination or harassment. But in June 2013, the Supreme Court held in a close, 5-4 decision that a supervisor is someone who must be able to “take tangible employment action” against subordinates—for example, someone with powers to hire, fire, demote, promote, discipline, transfer—even if those actions must be approved by upper management. If the harassing or discriminatory behavior encompasses a tangible employment action, then the employer is strictly liable because the offending employee is considered as standing in the shoes of the employer.

While this case is seen as a victory for employers because it narrows the universe of those considered supervisors and thus the responsibility of management, the decision also highlights the importance of making sure supervisors and managers are well-trained about their workplace obligations. No only can their bad behavior get their employers in trouble (and get themselves fired) but in some states, supervisors and managers can be held personally liable for employment discrimination and harassment.

Retaliation is a No-No…But What’s Retaliation?

Employees are protected under employment discrimination laws from retaliation for complaining to their employer about discrimination or harassment (whether or not discrimination or harassment has actually occurred), or for filing a claim or participating in an investigation of discrimination or harassment. In another 5-4 decision this past June, and again disagreeing with the EEOC, the Supreme Court rejected the notion that unlawful retaliation could be proven if retaliation was just a motivating factor in an adverse employment action, and instead held that retaliation requires a but-for determination. In other words, the adverse action is unlawful only if the decision to take adverse action would not have been made except out of retaliation against the employee. Allegations of discrimination, interestingly enough, are held to a lesser standard—the plaintiff can win if he or she simply shows discriminatory motive was one factor in an adverse decision against the employee.

One fear the Court expressed about defining retaliation was that there are more and more retaliation claims by terminated employees lacking a real reason to sue and who just claim retaliation without any real evidence. The Court was concerned that if it allowed a lower standard of causation, there would be more frivolous claims.

Of course, employers should always make sure employees suffer no adverse impact as a consequence of complaining about or filing a charge of discrimination or harassment. You can be sure the EEOC will continue to aggressively litigate retaliation claims.

Defense of Marriage Act: What’s That Got to Do with Employment?

By now virtually everyone in the country has heard that the Supreme Court overturned part of the Defense of Marriage Act—but what does that have to do with employment?

In ruling some of DOMA unconstitutional—the section that defined marriage as only between a man and a woman, the Court held that same-sex couples married in states recognizing same-sex marriage must have access to federal benefits if they live in a state that recognizes same-sex marriage. Although the case before the Supreme Court involved taxes, the principle arguably applies to other kinds of federal benefits—such as availability of Family and Medical Leave Act time off to care for an ill spouse.

Left undisturbed by the Supreme Court was language in DOMA that says states that do not themselves recognize same-sex marriage are not required to recognize other states’ same-sex marriages. FMLA regulations define “spouse” as a husband and wife as defined by state law where the couple resides. That means that in states that do not recognize same-sex marriage, an employer is not required to extend FMLA spousal care leave to an employee in a same-sex marriage even if the marriage was performed in a state which allows same-sex marriage. Of course, this also means that in states which do permit same-sex marriage, spousal leave under FMLA must be made available to a validly married same-sex employee.

Already, some employers are voluntarily extending benefits to same-sex spouses without regard to whether their own state permits same-sex marriages. For some employers, the rationale is ease of administration while others see an opportunity to enhance employee relations. Care must be taken with insured benefits and retirement plans to make sure extending coverage to same-sex spouses is permitted by the plans. Surely there’s more to come in this developing area of the law.

EEOC Loses Major Case on Background Checks

The Equal Employment Opportunity Commission caused quite a stir a while back when it issued highly restrictive rules on the use of criminal background checks to make hiring decisions. Using arrest and conviction records as an “absolute measure” to keep an applicant from being hired was felt by the EEOC to negatively impact protected groups, especially men and African-Americans. Instead, according to the EEOC, employers would be required to conduct their own investigation into the nature and severity of a crime, how long ago the crime occurred, and the nature of the job relative to the offense. Applicants would be entitled to explain the circumstances of their arrest or conviction, and the employer would be required to make a reasonable effort to determine if the applicant’s explanation was reasonable.

Needless to say, many employers felt the EEOC’s approach would hinder employers trying to hire safe and trustworthy employees, especially for jobs entailing visits to homes and businesses. Having to conduct mini-criminal investigations into applicants’ past criminal records was seen as beyond their abilities.

In a major blow to the EEOC, a suit against a convention labor company was pitched because the EEOC couldn’t show that the employer’s policy of conducting criminal and background checks (and also credit checks) in fact negatively impacted any protected groups. Further, the court concluded that the EEOC’s expert “in an egregious example of scientific dishonesty, cherry-picked” data to try to support the EEOC’s legal arguments, in addition to which the expert committed a “mind-boggling number of errors.”  The court which heard the case issued a blistering 32-page opinion that eviscerated the EEOC and its recent guidance on the use of background checks.

Bear in mind that this decision notwithstanding, employers should be careful to consistently apply their background check criteria so as to avoid even the appearance that protected groups are disproportionately excluded from employment. Also, using a vendor to conduct background checks brings into play the Fair Credit Reporting Act and a host of obligations to applicants including disclosures of negative information and allowing rebuttal of unfavorable information.

What’s On the Horizon?

The Supreme Court will be deciding whether the National Labor Relations Board was lawfully constituted when President Obama made recess appointments to the Board in January 2012. If the Court rules against the Board, it is possible that many months of decisions by the Board could be thrown out. Employers who are federal contractors are facing new rules requiring efforts to hire veterans and the disabled in specific percentages of their workforces. Obesity has just been declared a disease by the American Medical Association, a move sure to engender litigation under the Americans with Disabilities Act. Stay tuned.

Brooke Duncan
Latest posts by Brooke Duncan (see all)

Posted In: ACCA Now, Legal

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