Employment Law Update - Summer 2015

August 20, 2015, 3:04 PM

ISOLATED COMMENTS SUPPORT HOSTILE WORK ENVIRONMENT CLAIM

The Court of Appeals for the Fourth Circuit the federal court that governs application of employment law in Virginia, Maryland, North and South Carolina, and West Virginia has over the past few years been edging towards a more employee-friendly view of the law. The decision by the Court of Appeals in Boyer-Liberto v. Fontainebleau Corp. on May 7, 2015, marks a substantial step in that direction in the treatment of hostile environment cases under Title VII. It is arguably the most important hostile environment case, decided under both Title VII and Section 1981, in this Circuit in many years.

For years, courts have cautioned employees that the employment laws are not a ?code of civility,? and that only objectionable conduct that is severe and pervasive will create a hostile environment and violate the law. One of the linchpins of the ?severe and pervasive? test is whether the conduct is frequent, or a mere ?isolated offensive utterance.? In almost every case up to this point, the courts in this area have held that only one or two racially- or sexually-offensive incidents were not sufficiently ?severe and pervasive? to be unlawful.

The new decision changes the landscape. In this case, an African-American plaintiff alleged that, while working as a cocktail waitress in Ocean City, Maryland, she was twice called a ?porch monkey? and threatened with the loss of her job by a Caucasian restaurant manager. She alleged that she complained to higher authority at the hotel and was promptly fired. She lost at the trial court level, based on existing case law that suggested no reasonable person could believe those ?isolated incidents? were ?severe and pervasive.? But on appeal the Court ultimately held that two uses of the term ?porch monkey? within 24 hours, accompanied by threats to terminate the employee, were sufficiently severe and pervasive to constitute a hostile environment. Significantly, the Court wrote that the term ?porch monkey? ?is about as odious as the use of the word nigger? . . . [and] pure anathema to African-Americans.?

PRACTICAL POINTER

This case underscores the need for human resource professionals to become involved as early as possible once an offensive incident occurs. We are all accustomed to taking ?prompt and effective remedial action? after a complaint, but if a single incident here two identical incidents the same day is enough to impose liability for harassment and for retaliatory discharge, line managers and supervisors must be trained to bring HR on board as soon as humanly possible. And keep in mind that while this case involved race claims, the same scenario could arise for comments/acts that are offensive from the standpoint of any other protected class.

CHANGES ABOUND AT EEOC Attendees of the April 16, 2015, showing of the 31st Annual Employment Law Update were able to meet and interact with the new Director of the Richmond office of the EEOC, Daron Calhoun. This was one of the first seminar appearances for Mr. Calhoun, who came to Richmond from the Detroit EEOC office earlier this year. More recently, Noberto Rosa-Ramos was chosen to be the new Director of the Norfolk EEOC office. Mr. Rosa-Ramos replaced longtime Norfolk Director, Herbert Brown, who retired late last year. Mr. Rosa-Ramos was a Senior Investigator in the Richmond EEOC office before transferring to Norfolk as the new Director of that office.

Mr. Rosa-Ramos will be introduced to attendees at the final showing of the 31st Annual Employment Law Update on July 16, 2015, by the new Deputy District Director from Charlotte, Thomas Colclough. Both Mr. Rosa-Ramos and Mr. Colclough will be available on July 16 at the Hampton Roads Convention Center to participate in workshops and answer any questions that attendees may have regarding what to expect from the EEOC going forward. Mr. Colclough will also provide a brief summary of the enforcement objectives for the EEOC locally at the end of the day before randomly selecting an attendee to be the lucky winner of a brand new 48 inch HDTV.

SUPREME COURT ANNOUNCES STANDARD FOR ACCOMMODATING PREGNANT EMPLOYEES The Pregnancy Discrimination Act (?PDA?) requires employers to treat ?women affected by pregnancy the same for all employment-related purposes as other persons not so affected but similar in their ability or inability to work.? But until Peggy Young took her cause to the U.S. Supreme Court, there was uncertainty over exactly what was required. Young was a part-time driver for UPS. When she became pregnant, her doctor restricted her from lifting more than 20 pounds. Because UPS required drivers to lift up to 70 pounds, UPS told Young that she could not work until her lifting restrictions were removed. So, Young sued for discrimination under the PDA, claiming that, even though UPS provided light duty accommodations to drivers injured on the job, drivers who lost their DOT certification, and drivers with a disability covered by the Americans with Disabilities Act (?ADA?), it did not provide light duty accommodations to pregnant drivers.

In a split decision, the Supreme Court ruled that pregnant employees are not entitled to preferential treatment, but an employer may violate the PDA if it fails to accommodate pregnant employees with work restrictions in the same manner as other, non-pregnant employees with similar limitations. A pregnant employee may establish a violation by showing that: (1) an employer?s policies (even facially neutral ones) ?impose a significant burden? on pregnant employees; and (2) the employer?s reasons are not strong enough to justify the burden. To do this, a pregnant employee may demonstrate that the employer accommodates a large percentage of non-pregnant employees, but not pregnant employees. And, employers may not rely on increased costs or inconvenience as justification for the failure to accommodate pregnant employees.

PRACTICAL POINTER

Employers need to review their light duty and accommodation policies. Policies providing accommodations for on-the-job injuries or disabilities under the ADA may need to be revised to provide accommodations for pregnant employees. At a minimum, an employer should establish a practice of engaging in an interactive dialogue with such employees about potential accommodations.

THE EEOC: ENTERING THE DIGITAL AGE On May 6, 2015, the EEOC announced the start of ACT Digital, which it described as the ?first step in [its] move toward an online charge system.? Currently, the EEOC is running a pilot program in 11 of its 53 offices, including the Norfolk and Richmond offices, and expects to have the system implemented nationwide by October 1, 2015. Under the system, employers will be able to view and download charges of discrimination, view and respond to mediation invitations, submit position statements, update their contact and legal representative information, and communicate online with the investigator through a secure portal. New Notices of Charge of Discrimination will contain a unique password-protected log-in that will allow the employer to access the specific charge.

The ACT Digital system is intended to streamline the administrative process and improve ?customer service.? For many technologically savvy employers, it may make the process more convenient, especially if they have a designated contact person (with an e-mail address) on file with the EEOC. Of course, traditionalists can choose to opt out of the digital system and continue to receive and submit documents via mail.

?BAN THE BOX? MOVEMENT GAINS GROUND IN VIRGINIA ?Ban the box? is the code name for a movement to eliminate questions about criminal history on job applications. In 2012, the U.S. Equal Employment Opportunity Commission (EEOC) endorsed this movement with guidance that discourages blanket questions about criminal history on employment applications. In this guidance, the EEOC indicated that employers who ask such blanket questions and discriminate against anyone with convictions might face lawsuits for ?disparate impact? discrimination. This past April 3, Governor McAuliffe signed a new Executive Order essentially ?banning the box? for state agencies in Virginia. The Executive Order also encourages ?similar hiring practices among private employers operating within the Commonwealth and state government contractors.?

Neither the EEOC?s guidance nor the Governor?s Executive Order requires private employers in Virginia to remove questions about criminal history from their employment applications. Virginia employers typically ask blanket and individualized questions about criminal history to avoid negligence claims that may result from hiring someone with a propensity to commit a crime who then commits a similar crime in the workplace after being hired. However, consistent with the ?ban the box? national movement, the EEOC and Governor McAuliffe have taken steps to encourage employers to only ask questions about criminal history on an individualized basis and refrain from letting criminal history dictate hiring decisions unless an individual?s criminal history bears some specific relation to the job for which he or she is being considered.

?TOP-GUN? EMPLOYEE LAWYER TO BE FEATURED AT HAMPTON SHOWING OF THE 31ST ANNUAL EMPLOYMENT LAW SEMINAR K&C?s Annual Employment Law Update returns to the Hampton Roads Convention Center on July 16, 2015 with new employment law information and will feature top-gun employee lawyer David R. Simonsen, Jr. Mr. Simonsen will provide attendees with a valuable perspective and guidance on how to avoid being sued by lawyers like him. Topics will include the latest on the ADA, Obamacare, workplace harassment and more. In keeping with this year?s reality TV theme, attendees will have a chance to win a 48? flat screen TV and earn 6 HRCI credits. For more information or to register, contact Andrea King at 757.624.3232 or adking@kaufcan.com.