i4cp Presented by Paula Barran - PowerPoint Presentation

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i4cp

Presented by Paula BarranMarch 8, 2019

Legal Update

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Important Cases Before The Supreme Court

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“It’s hard not to have a big year

at

the Supreme Court.”

-Ruth

Bader Ginsburg

Although this year

might be a real snoozer.

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Fort Bend County, Texas v. Davis: Title VII Exhaustion Requirement

Plaintiff wrote “religion” on an intake questionnaire, but never amended her charge of discrimination

The Fifth Circuit held that exhausting administrative remedies (filing with the EEOC) is a prerequisite to a Title VII lawsuit

The court will decide whether the exhaustion requirement is jurisdictional, or can be waived

Is this a hint?

“The

short answer is that the Act contains no

‘wholly groundless’

exception, and we may not engraft our own exceptions onto the statutory text

.”

Schein v. Archer & White

,

Kavanaugh

opinion

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Administrative Law Cases

Gray v.

Wilkie

: Can the court review an interpretive rule from the Department of Veterans Affairs?

Kisor

v.

Wilkie

: Does the court have to defer to an agency?

Asks the court to overrule prior deference cases

This could be the big case of the term

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The Current Status of LGBTQ Discrimination

These issues remain unsettled on a federal level

States have individual laws that apply locally

Petitions for Supreme Court review remain pending with no clear signals that the Court will hear the cases this term

Watch for news on:

Altitude Express v.

Zarda

Bostock

v. Clayton County Georgia

R.G. & G.R. Harris Funeral Homes v. EEOC

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Importing Things Happening In Other Courts

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Internships, Externships, & The ADA

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Christ v. University of Findlay, Southern District of Ohio

Places of public accommodation are prohibited from discriminating on the basis of disability

They must allow full and equal enjoyment of the goods, services, facilities, privileges, advantages of accommodations

Those prohibitions apply to any person owning, leasing, or operating a place of public accommodations

Interns or externs who work for course credits are entitled to the protections of the law

Institutions who place students in externships or internships need to make sure the site follows ADA accommodation requirements.

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Fit For Duty – Direct Threat – Can The ADA Get Any More Complicated?

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EEOC v. McLeod Health Inc.

Long term employee with postaxial hypoplasia (missing bones, causing mobility impairments and falling)

Supervisor had performance concerns AND concerns that impairment worsening

Following three falls, fit for duty exam followed by functional capacity exam

Accommodations identified (plaintiff did not want them)

Employer refused to return plaintiff to original job

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What Was Wrong Here?

Was navigating (i.e. moving around) really an essential function of plaintiff’s job as an editor?

She preferred to be on site for her newsletter work but that was not essential to her job and she could do her tasks mostly by phone

Job description does not mention navigating

A reasonable jury could reach the conclusion that the employer did not have a reasonable belief, based on objective evidence, that moving around the workplace would be a threat to employee’s safety

Plaintiff had performed her job for 28 years

Recent fall had caused no injury

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The Crux of the Issue?

Was this a real “qualified individual” and “essential functions” question or, instead, a manager making a lot of guesses and assumptions?

Remember the rules about medical examinations:

Base the request on objective evidence that the employee cannot perform the essential functions of the job, with or without a reasonable accommodation, OR

Cannot perform the job safely

Choose the right professionals to do the job

Make sure they have timely and accurate information

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The Best of the ADA Blogs

www.williamgoren.com/blog

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Leave & Retaliation

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An Easy Way to Create an Inference of Causation

Reaves v.

Nexstar

Broadcasting

: One tiny little chronology suffered from TMI

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Evidence That OFLA Leave Factored into Termination

Plaintiff claimed PTSD, depression, anxiety, and alcoholism

After return from treatment his schedule was changed against his will

Plaintiff relapsed, attempted suicide, and requested medical leave

He did not disclose an arrest for disorderly conduct

Termination

Supervisor prepared chronology of “key events” which included periods of protected leave

While there may be a legitimate nondiscriminatory reason to include leave periods, doing so “raises an inference of causation”

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Employee Classifications

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One More Reason to Worry About Independent Contractor Classification

NLRB overrules its 2014 guidelines on independent contractor classification

Out

with

FedEx

I

n

with

SuperShuttle

DFW

Remember: This test applies only to the National Labor Relations Act

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Common Law Agency Test

ControlDistinct occupation or businessKind of occupationDirection of employer? Without supervisionSkill requiredMethod of payment

Who supplies the instrumentalities, tools, and place of work?

Length of time for which person employed?

What do the parties believe?

Is this a part of the employer’s regular business?

Is the person in a business?

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Importance of Being Entrepreneurial

Entrepreneurial opportunity has always been at the core of the common law test

Shuttle drivers were independent because:

They owned their vans

They received all the proceeds

They had full control over their schedules and working conditions

That agreed they were independent

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Separations Worth Talking About

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Cutliffe v. Wright State University (S.D. Ohio)

Wright State terminated Director of Center for Nursing Research

At hire, the [female] Dean told

Cutliffe

that collegiality was a strength of the college

A report by Equity and Inclusion said there was “rampant incivility and bullying” within the college

Plaintiff alleged the dean made anti-male comments:

She referred to a former processor as a psychopath who participated in a male-dominated and misogynistic church.

“We don’t have a good track record with the men we hire”

She “never met a man who can nurse as well as a women.

The dean also made a number of derogatory anti-English comments

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Why Did the Plaintiff Lose?

Nursing college faculty and staff complained that plaintiff was an alienating and polarizing figure

He was repeatedly counseled about his behavior

His presentations were poorly received

“Rude, condescending, tried to embarrass people, he cut them off”

Left staff “angry and bewildered”

Gave his cv to a faculty member and told her to read it because he would quiz her the next day

Gave course releases to faculty to work on a project but failed to get the project started

No graduate research assistant candidates would accept a job where plaintiff was on the committee

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Wait – There’s More…

Told Dean he was making progress in a submission for a major grant, but he had not checked with Office of Research and Wright State was not eligible for the grant anyway

He was directed to assist with a proposal spearheaded by an Engineering Professor, but took the project over resulting in a request to get plaintiff off the project

A female professor objected to his calling her “guys” which he characterized as “treading in dangerous territory”

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What We Can Learn from Minnesota’s Very Expensive Lesson

Miller v. Bd. of Regents of the Univ. of Minnesota

Terminated female hockey coach prevailed in Title VII and Title IX lawsuit

Back pay and damages: $3,750,000

Front pay (since reinstatement was not feasible): $461,278

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What Happened in All That Ice & Snow?

Reasons the university gave for termination (nonrenewal)

Series of disappointing seasons

Reasons plaintiff(s) claimed

Sex, sexual orientation, retaliation for accusing of violating Title IX AND hostile work environment AND Equal Pay Act violations

From what could a jury infer discrimination

Male coach was renewed despite comparable or arguably worse performance

Administrators offered inconsistent explanations for decision (first citing just financial considerations, later citing performance)

Could have offered a pay cut in lieu of termination

Could have talked to donors who wanted to fund her salary

Miller got to try her case to a jury

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A Few More Details

Under Miller’s coaching the women’s team won five NCAA championships

The initial reason was that her salary was too high to maintain because of the financial distress of the university

$215,000

There is a general history (or at least belief, or maybe a pattern) that male coaches don’t get terminated or non-renewed because of size of salary

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Observations from Title-IX BlogSpot

“UMD

made a mistake not just in firing Miller but in providing a weak justification, which only serves to make people question the actual justification. They also made a mistake in doing it so close to the revelations about what is happening at Iowa. And they underestimated a general public that dislikes overt discrimination. It may be difficult to see and understand structures and systems of discrimination, but it is not hard to see that firing a female coach under the guise of being paid too much when there are other, less successful male coaches who are paid more...well

that’s

gender discrimination

.”

http://title-ix.blogspot.com/2014/12/what-should-we-take-from-millers-firing.html

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The Title IX Piece

Miller regularly complained about perceived Title IX violations

Disparate funding levels

Complaints about athletic trainers

Court: Although the evidence supporting Miller’s Title IX retaliation claim is thin, Miller has sufficient evidence to avoid summary judgment

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Sometimes There Are Nuggets in Any Bad Opinion

“Every employee at one time or another must endure the stupid decisions of bosses or the irritating behavior of co-workers.”

Miller v. Bd. of Regents of the Univ. of Minn.

, No. 15-CV-3740 (PJS/LIB), 2018 U.S. Dist. LEXIS 17531, at *12 (D. Minn. Feb. 1, 2018)

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Retaliation – The Law Goes On Forever

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Oregon’s Expansion of Individual Retaliation to Post-Employment: McLaughlin v. Wilson

Oregon law prohibits retaliatory employment actions by “any person”

Plaintiff accused defendant (supervisor) of sexual and religious harassment

Defendant resigned following investigation

Plaintiff resigned to attend graduate program

Defendant spoke badly about plaintiff to the program

Such conduct is retaliation even though it occurred outside the workplace after both employees resigned

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The Many Flavors of Harassment

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Washington Supreme Court Wants You to Protect the Public from Your Employees

Floeting

v. Group Health Cooperative

In a workplace that is a place of

public accommodation,

a single act of harassment or discrimination could violate the Washington Law Against Discrimination

This is a strict liability with almost no defenses

The discrimination did not happen

The person who discriminated was not an agent or employee

It is NOT a defense that the employer did not know about the misconduct and/or did not authorize it

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And Employees Want You to Protect Them from Members of the Public

EEOC v. Costco Wholesale Corp

(7th Cir)

Costco employee was stalked by a customer for over a year

Personal questions and comments

Aggressively pushing his business card into her hand and offering phone number

Videotaping with smartphone

Touching

Face, hand

Attempt to hug

Bumped with cart

Customer was in store to see employee, not to shop

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Who Won & Who Lost?

Customer’s come-ons were mild, but conduct need not be overtly sexual to be harassment

Costco responded to employee’s complaints, but its response was “unreasonably weak”

An employee can seek back pay for the period of unpaid leave that harassment forced her to take

But the back pay cannot extend past the termination

Costco terminated plaintiff because she did not return from leave

Not returning from leave is “the equivalent of walking off the job”

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Slippery Stuff From Slippery Rock

Knight v. Slippery Rock

Plaintiff’s termination (Parking Manager) followed his having accessed employees’ personal computer files

College issued a litigation hold

Plaintiff had computer access and used it to go beyond the instruction

College alleged he violated the computer use policy

There was no financial gain, but plaintiff had personal gain

Court distinguished another employee (janitor) as not similarly situated to an administrative manager

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Yup, It Really Is Wrong to Spread Rumors That a Woman Slept Her Way to a Promotion

Parker v.

Reema

Consulting Services

(4th Cir. 2019):

“It goes to the core of somebody’s merit as a human being to suggest they were promoted not on worth but for sexual favors”

“She plausibly invokes a deeply rooted perception – one that unfortunately still persists – that generally women, not men, use sex to achieve success”

“Traditional negative stereotypes regarding the relationship between the advancement of women in the workplace and their sexual behavior stubbornly persist in our society”

“With this double standard, women, but not men, are susceptible to being labelled as ‘sluts’ or worst, prostitutes selling their bodies for gain.”

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Preparing For Title IX Regulations As Applied To Employees

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Watch The Oregon Legislature

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What’s Pending in Salem?

SB 379: Would require employers to permit employees to use marijuana unless BFOQ or actual impairment at work

HB 2498: Would amend the independent contractor

definition

to require the contractor’s work to be something outside the usual court of the business

SB 726: Would introduce a major overhaul of sexual harassment law expanding personal liability, forbidding confidential settlements, extending the statute of limitations to

seven years

instead of one year

HB 2818: A new age discrimination law would allow disparate impact theories, add liquidated damages, define “because of age” to include length of service, higher cost , or other facts that look like proxies for age

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Don’t Forget Your EEO-1 Reports This Year

Deadline was extended until May 31

When do you need one?

100 or more employees, or

Federal contractors of first tier subs with 50 or more AND a contract of $50,000 or more

https://www.eeoc.gov/employers/eeo1survey/index.cfm?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term

=

If you don’t want to type all that, go to EEOC website and search for EEO-1.

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Judge Curiel (S.D. Cal.) Should Have the Last Word Today: Proofread!

“Courts

in

this

district have concluded that

‘a

false advertising claim under the Lanham Act that is

“grounded in”

or

“sounds in”

fraud must meet the heightened pleading standards of Rule 9(b

).’ * * * Therefore

, the plaintiff is required to

‘plead

the time, place, and specific content of the false representations, the identities of the parties to the misrepresentation, and what about the statement is claimed to be misleading

.’

(Meh

I need a better rule statement than

this.)”

GOLO, LLC v. Higher Health Network, LLC

, No. 3:18-cv-2434-GPC-MSB, 2019 U.S. Dist. LEXIS 18506, at *15-16 (S.D. Cal. Feb. 5, 2019)

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Paula A. BarranBarran Liebman LLP(503) 276-2143pbarran@barran.com

Thank You!