Inconsistent Factual Accounts Could Support an Inference of Retaliation

Q.  Is there anything I should look out for in documenting my legitimate business reason for terminating an employee?

A.  The United States Appeals Court for the Seventh Circuit (covering Illinois, Indiana and Wisconsin) recently issued an opinion that serves as a warning that inconsistent explanations of an employer’s reason for an adverse employment decision could support an inference of retaliation. In Donley v. Stryker Sales Corp., No. 17-1195 (7th Cir. Oct. 15, 2018), the plaintiff filed an internal complaint with the company’s human resources department that a manager was harassing a female coworker. The human resources director investigated the complaint and the company then terminated the manager, albeit with a hefty severance package.  Shortly after the termination, however, the plaintiff also was terminated.  The company claims that it fired the plaintiff for taking improper photographs of the CEO of a vendor, who was drunk at a work event approximately six weeks prior to plaintiff’s harassment complaint.

This is where the story shifts. In its response to the EEOC charge, the company alleged that the plaintiff showed the pictures she had taken to her supervisor on the night of the party and that he told her to delete them.  At his deposition, however, the supervisor claimed that he did not see the pictures on the night of the party.  Rather, he heard about them from coworkers, and told the human resources director about them.  The human resources director, on the other hand, testified at her deposition, that she learned about the photographs from another employee during his exit interview and decided to investigate the issue.

Plaintiff claimed that her supervisor and the human resources director knew about the photographs prior to the investigation and approved of them. It was not until after plaintiff brought the harassment complaint – in fact one day after the manager was terminated – that the human resources director initiated an investigation into the purportedly improper photographs.  Plaintiff argued that this timing was suspicious, and supported her claim that she was terminated for bringing the harassment complaint to the attention of the human resources director.

The lower court granted summary judgment to the employer. The Seventh Circuit reversed, however, finding that there was a disputed issue of fact whether the employer used the photographs – which it had previously approved – as a pretext for the termination.  According to the Court:  “[A]n employer’s shifting factual accounts and explanations for an adverse employment decision can often support a reasonable inference that the facts are in dispute and that an employer’s stated reason was not the real reason for its decision.”

Lessons learned? Retaliation claims can be difficult to defend, particularly when the adverse employment action occurs close in time to the employee’s protected activity.  When executing an adverse employment decision, employers should make sure that the adverse action is supported by a legitimate business reason.  Moreover, when defending this decision in a subsequent agency proceeding and lawsuit, it is important to create a consistent factual record of the stated reason for the decision.

— Tracey E. Diamond

 

New Pa. Guidance Interprets Anti-Discrimination Law to Cover LGBT Individuals

Q.  Does Pennsylvania State law protect employees against discrimination based on their sexual orientation and gender identity?

A.  The PHRC, however, recently released new guidance expanding the definition of the term “sex” under the Act to include LGBT status. The PHRC is an agency of the executive branch of the Pennsylvania government under the direction of Governor Tom Wolf. The new PHRC guidance broadens the definition of “sex” under the Act to include “sex assigned at birth, sexual orientation, transgender identity, gender transition, gender identity, and/or gender expression depending on the individual facts of the case.” As a result, the PHRC now takes the position that the Act prohibits “discrimination on the basis of sex assigned at birth, sexual orientation, transgender identity, gender transition, gender identity, and gender expression.” The guidance announces that the PHRC will accept sex discrimination complaints from individuals alleging discrimination based on their LGBT status, and employers will be forced to defend those complaints.

For more information, please click here.

Lee E. Tankle

Let Them Eat Cake: U.S. Supreme Court Admonishes Colorado Civil Rights Commission to Avoid Anti-Religious Bias

Q: Can an employer discriminate against members of the LGBT community on the basis of the employer’s religious beliefs?

A.  On June 4, 2018, the United States Supreme Court ruled in favor of a bakery that refused to bake a wedding cake ordered by a same sex couple because of the baker’s religious beliefs. The baker argued that requiring him to create a cake for a same-sex wedding would violate his right to free speech by compelling him to exercise his artistic talents to express a message with which he disagreed, and that it would also violate his right to the free exercise of religion. The opinion was eagerly anticipated, as it was expected that the Court would provide some clarity on the question of whether an LGBT individual’s right to be protected from discrimination trumps an employer’s or business owner’s exercise of its sincerely-held religious belief.  The Court failed to address the substantive First Amendment issue, however, and instead focused its decision on the Colorado Civil Rights Commission’s failure to remain a neutral decision-maker.

In Masterpiece Cakeshop, Ltd, et al. v. Colorado Civil Rights Commission et al., a Colorado bakery owned and operated by a devout Christian refused to create a wedding cake for a same sex couple because of his religious opposition to same-sex marriages—marriages that Colorado did not then recognize.  The couple filed a charge with the Colorado Civil Rights Commission, pursuant to the Colorado Anti-Discrimination Act (CADA),which prohibits discrimination based on sexual orientation, not only in employment, but also in a “place of business engaged in any sales to the public and any place offering services . . . to the public.”  The Commission ruled in the couple’s favor, concluding that the shop’s actions violated CADA.  The Colorado state court affirmed the ruling.

The U.S. Supreme Court reversed the decision, however, siding with the baker. The Court focused on comments made by the Commission that were disparaging towards the baker’s religious beliefs, concluding that the Commission had failed to apply state laws in a manner that was neutral towards religion.  According to the Court, while “gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth,” and that “the exercise of their freedom on terms equal to others must be given great weight and respect by the courts,” in ruling in favor of the same sex couple, the members of the Commission displayed open hostility towards religion.

The Court focused on comments by one commissioner during a public meeting on the case that “[f]reedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust… it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.” The Court noted that:  “To describe a man’s faith as ‘one of the most despicable pieces of rhetoric that people can use’ is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical – something insubstantial and even insincere. . . .  This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation.”

The Court also observed the Commission’s difference in treatment between this case and the cases of other bakers, where the Commission upheld the bakers’ conscience-based right to refuse to bake cakes with anti-gay messages. The Court found that the Commission’s treatment of these cases was inconsistent, and reflect a bias against Masterpiece Cakeshop’s religious beliefs.  Accordingly, the Supreme Court held that the Commission’s treatment of the case violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.

The Masterpiece Cakeshop case is a very narrow decision, and failed to address the underlying issue at stake – whether the First Amendment’s free exercise and free expression clauses protect the baker’s right to deny services to same-sex couples.  In fact, the Court concluded its opinion by stating that: “The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”

Although we will have to wait for future decisions to address the underlying Constitutional issues at play in this case, the Court expressly reaffirmed that certain laws provide protection for LGBT individuals against discrimination, while also noting that these laws must be applied in a manner that is neutral toward religion.  Regardless of the narrow grounds upon which the Supreme Court decided this particular case, we recommend that employers treat sexual orientation and gender identity and expression as protected classifications.  The EEOC has issued guidance finding that Title VII’s protections against discrimination “based on sex” extend to LGBT individuals, and numerous Circuit Courts of Appeals have extended Title VII’s reach in this manner.   Moreover, state statutes and local ordinances in many jurisdictions expressly prohibit discrimination based on sexual orientation and gender identity.

Tracey E. Diamond

Kali T. Wellington-James

 

 

Supreme Court Upholds Validity of Employee Class Action Waivers

Q.  Can my company require its employees to sign an arbitration agreement mandating that they arbitrate all employment disputes, and limiting their ability to participate in a class action against the company?

A.  On May 21, in a 5-4 opinion, the U.S. Supreme Court ruled that arbitration agreements in which an employee waives the right to pursue his or her employment claims in a class or collective action are enforceable under the Federal Arbitration Act (FAA). The holding in Epic Systems Corp. v. Lewis, No. 16-285, resolves a circuit court split on whether class action waivers in arbitration agreements violate the National Labor Relations Act (NLRA). Justice Gorsuch delivered the opinion of the Court, rejecting three primary arguments made by employees to undermine the validity of class action waivers under the FAA.

For more information about this case, please click here.

-Tracey E. Diamond

 

Confronting Racial Bias in the Workplace-How to Avoid Becoming the Next Hashtag Movement

Q.  How do I help my company avoid unconscious bias in the workplace?

A.  A bias is a prejudice in favor of or against one thing, person, or group as compared with another. We all have biases. Biases can be based on any number of stereotypes, whether it is race, gender, age, national origin, religion, etc.  In a perfect world, individuals would not act on their biases, however, our world is far from perfect and employees can and do bring their biases to work.

When employees bring biases into the workplace, whether they are overt or subtle, the consequences can be damaging for the employer, especially in this social media age, when racial biases can and will be caught on camera and “go viral” almost instantly. A recent example of such racial biases resulting in racial profiling occurred in a Starbucks in Philadelphia on April 12, 2018, when two black men were arrested while waiting for a friend.  The police arrested the two men who, nine hours later, were released without being charged.  The arrest was videotaped by a bystander, who commented that the men did nothing wrong.  The incident resulted in protests in Philadelphia and a #boycottStarbucks hashtag that took on a trending life of its own.  Starbucks however, took swift action by terminating the store manager, apologizing to the two men, and announcing plans to close 8,000 U.S. locations for a day in May to provide a racial-bias education program.

A similar incident occurred recently at an LA Fitness facility in Secaucus, New Jersey, when three LA Fitness employees called the police on a black man, who was an active, paying member of the fitness club for no apparent reason, than believing that he did not belong there. LA Fitness immediately terminated the employees involved, issued a public apology and stated that it is exploring potential training content and opportunities to better train the staff.

Stories like these are not new, however, the platform to raise awareness of racial bias and profiling has expanded with social media. So the question remains, what can and should employers do to confront racial biases and avoid becoming the next #boycott{insert Company name} hashtag?

First and foremost, companies must educate, train, and re-train their employees. In industries that are open to the public, such as retail, for example, employers should regularly conduct racial bias training upon hiring as well as on an annual basis.  This is particularly important in industries with high turnover to ensure that all employees are receiving training.  To be most effective, the training should include real life scenarios that are applicable to the industry where employees can openly talk through how to handle certain issues.  Next, employers should make sure they have clearly defined policies on hand.  These policies should be reviewed during the training and be accessible for reference to all employees.

Even more important than having fair policies, employees must be taught how to consistently enforce such policies. For example, if a coffee shop has a policy that requires patrons to order food/coffee in order to use the internet, bathroom or remain on the premises (which Starbucks does not), this must be enforced by all stores and applied to all patrons, regardless of race, gender, national origin, etc.  If the company has concerns as to whether certain policies will be applied consistently, the most prudent approach is to discard that policy altogether.  Additionally, if a company enforces policies/restrictions regarding entering or remaining in a location open to the public, it should be clearly posted.

Even with the best training programs and clearest policies, a company may still end up on the wrong side of the racial bias equation. So what now?  What should a company do if one or more of their employees exhibits racial bias or profiling towards a customer or member of the public?  Even assuming that the incident does not “go viral,” employers should investigate any incident of alleged racial profiling, including reviewing any video footage and witness accounts.  If the allegations are confirmed, the employer must take corrective action.  In today’s society, there is a low tolerance for racial, ethnic or religious profiling, and failing to do anything other than termination (assuming the profiling is confirmed), could result in public backlash.  The response must be quick.  However, employers must balance the need for speed with the need to conduct a proper investigation.  Companies must also offer the individual who was the victim of profiling a sincere apology and consider including some type of monetary award, depending on the circumstances.  Additionally, employers should review their policies and take the opportunity to re-train employees and redistribute applicable policies.

Kali T. Wellington-James