2. CASE UPDATE: A REVIEW OF SIGNIFICANT
DECISIONS FROM THE PAST YEAR
PRESENTED BY: WILLIAM H. PICKERING
3. HOSTILE WORK ENVIRONMENT
• Primm v. Auction Broadcasting Co., LLC (U.S. District
Court, Middle District of Tennessee, January 4,
• CSX Transportation, Inc. v. Smith (Supreme Court of
West Virginia, June 7, 2012)
4. • Primm v. Auction Broadcasting Co.
– Plaintiff hired by her father to work at auto
– Campbell replaces Plaintiff's father as
– Over a period of a few weeks, Campbell
makes various crude remarks to Plaintiff and
tells her "you better get more cars in here"
even if she has to perform a sex act to do so.
5. • Primm v. Auction Broadcasting Co.
– Plaintiff's father complains to upper management.
– COO conducts thorough investigation resulting in written
reprimand, probation and training for Campbell.
– Campbell apologizes to Plaintiff.
– Plaintiff reports no further problems
6. • Primm v. Auction Broadcasting Co.
Standard for a hostile work environment: harassment must be
so "severe or pervasive" that it alters the conditions of the
– Court concludes standard not met in this case.
– But even if it was, employer fulfilled its obligation by
conducting prompt investigation and taking decisive action.
7. HOSTILE WORK ENVIRONMENT
CSX Transportation, Inc. v. Smith (Supreme Court of West
Virginia, June 7, 2012)
Question: Is an employer obligated to protect an employee
from harassment away from work?
8. • CSX Transportation, Inc. v. Smith
– Plaintiff, a lesbian, overhears another management-level employee
(Wesley Knick) make an obscene comment about her.
– Subsequent investigation results in Knick's demotion – Knick
blames Plaintiff and threatens retaliation.
– Knick exercises seniority rights and transfers to territory under
9. • CSX Transportation, Inc. v. Smith
– Plaintiff is subjected to extreme harassment away from work, most likely by
– CSX puts Plaintiff up in a hotel for a short period, offers to transfer her to another
state, but fails to investigate the incidents or take any action against Knick.
– Plaintiff begins psychiatric treatment. During this time, harassment by Knick
– Plaintiff accepts transfer to lower paying position in another part of the state to
get away from Knick.
10. • CSX Transportation, Inc. v. Smith
– CSX begins investigating Plaintiff for improper use of company taxi
system and performance and attendance issues.
– CSX tells Plaintiff that the company does not accept doctor-
– Plaintiff is terminated and files suit for sexual harassment, hostile
work environment, retaliatory discharge and negligent retention.
12. • CSX Transportation, Inc. v. Smith
– West Virginia Supreme Court rejects CSX's contention that there
was no hostile work environment.
– "CSX's failure and refusal to accommodate Ms. Smith's concerns
forced her to resign her managerial position, transfer into a lower
ranking job, accept a significant pay reduction, and relocate her
residence simply to escape the hostile working environment
created by Mr. Knick and perpetuated by CSX."
• Jaszczyszyn v. Advantage Health Physician Network
(Sixth Circuit Court of Appeals, November 7, 2012).
14. • Jaszczyszyn v. Advantage Health
– Employee takes FMLA leave for back
– Doctor's statement says employee is
– While on FMLA leave, employee attends
Polish Heritage Festival, is photographed
dancing and drinking, and posts pictures on
her Facebook page.
– Employee is questioned by management,
provides no satisfactory explanation, and is
terminated for FMLA fraud.
15. • Court's Decision:
– Employer rightfully considered FMLA fraud to be a serious
– Termination of Plaintiff because of her alleged dishonesty
constituted a non-retaliatory basis for her discharge.
– Employer's investigation was adequate – Plaintiff's own
behavior during investigatory interview provided further
support for termination decision.
• Romans v. Michigan Department of Human Services
(Sixth Circuit Court of Appeals, February 16, 2012).
– Bad employees sometimes win – especially if their
supervisor messes up.
17. • Jerry Romans – truly a bad employee.
– Suspension for derogatory and sexually inappropriate comments to youths.
– Three formal counselings for failing to report scheduled overtime, failure to timely report an
absence, and failure to remain alert to job duties and to work cooperatively.
– Three-day suspension for calling African-American employee a "motherf****r" over the intercom
– Five-day suspension for monitoring the same African-American employee on the employer's
security cameras after being instructed not to.
– Three formal counselings for misuse of the employer's internal complaint system to try to get
coworkers and supervisors in trouble.
18. • Romans v. Michigan Department of Human Services
– Romans is terminated and files suit for reverse discrimination
and FMLA interference.
– FMLA interference claim based on supervisor's refusal to
allow Romans to leave his shift to be with his dying mother.
– Employer counters by saying Romans really wasn't "needed
to care for" the mother since Romans' sister was there.
19. • Court's Decision:
– Plaintiff doesn't have to be the only individual or family
member available to care for his relative.
– FMLA provides leave when an employee is needed to make
arrangements for changes in a family member's care. Here,
Romans and his sister were faced with the decision of
whether to take their mother off of life support.
• Ballato v. Comcast Corp. (Eighth Circuit Court of Appeals, April
– Employee receives poor performance evaluation and goes on FMLA leave
a couple of months later. While on leave, employee sends accusatory
emails to management and other employees. Attempts unsuccessfully to
send "blast" email to all Comcast call center employees.
– Comcast is concerned about employee's stability and deactivates his
access to Comcast's computer system and email as well as his building
21. • Ballato v. Comcast Corp.
– Friday, June 5: Employee calls in to request FMLA leave, is told he is not in the system, but
makes no attempt to contact his supervisor. Employee is unable to gain access to his
building and decides to go home without requesting assistance. Employee believes he has
– Monday and Tuesday, June 8 and 9: Employee fails to call in to request FMLA leave, does
not contact anyone at Comcast, and does not show up for work.
– Employee is sent letter advising him that he is considered to have voluntarily resigned.
Employee does not contact Comcast to contest his termination or clarify what happened.
– Employee sues for FMLA interference and retaliation.
22. • Court's Decision:
– Employee taking FMLA leave may still be terminated for reasons unrelated to the
FMLA, including a failure to follow company policies and call-in requirements.
– Employee's confusion over his employment status and his belief that he had been
terminated did not justify his failure to call in. Employee "still had the responsibility to
clarify the situation, request FMLA leave, or show up for his subsequent shifts."
– Even after receiving termination letter, employee failed to contact Comcast to contest
the decision or otherwise inquire why he was not provided FMLA leave.
23. AMERICANS WITH DISABILITIES ACT
• Higgins v. Maryland Department of Agriculture (U.S.
District Court for the District of Maryland, February
Are essential job functions always objective?
24. • Higgins v. Maryland Department of Agriculture
– Plaintiff was a long-term employee whose job required him to interact with
other professionals, government officials, and members of the public.
– Plaintiff received generally good performance reviews but was known to be
abrasive and abrupt.
– Plaintiff's mental condition deteriorates, resulting in bizarre behavior and a
diagnosis of bipolar disorder.
– Plaintiff continues to exhibit behavior which is described as argumentative,
unprofessional, offensive, loud, combative and crude.
– Following conflicts with management, Plaintiff is terminated.
25. • Higgins v. Maryland Department of Agriculture
– Plaintiff files suit under the ADA and claims that, despite
his "behavioral foibles" and mental condition, he
performed the requirements of his job.
– Plaintiff also alleges that the employer failed to provide a
reasonable accommodation for his mental impairment.
26. • Court's Decision:
– Plaintiff was not a qualified individual with a disability because he
could not perform the essential functions of his position.
– The ability to behave professionally and courteously were "essential"
to Plaintiff's position.
– Plaintiff never identified an accommodation which would have
enabled him to conform his behavior to an acceptable standard.
– "Employers are not required to tolerate abusive behavior by a disabled
individual, even if the behavior is related to the disability."
27. AMERICANS WITH DISABILITIES ACT
• Henry v. United Bank (First Circuit Court of Appeals,
July 13, 2012)
When is an employer obligated to provide additional leave as
a reasonable accommodation under the ADA?
28. • Henry v. United Bank
– Plaintiff begins experiencing neck pain, blurred vision and dizziness due to a
spinal cord compression.
– Plaintiff begins FMLA leave July 1. Near the end of July, physician recommends
that leave be extended for three weeks. Physician later recommends that
Plaintiff remain on leave until her appointment with a neurologist on September
– Management concludes that Plaintiff's continued absence is a hardship and
informs Plaintiff that she is expected to return to work on September 25, after
her September 24 appointment with the neurologist. (FMLA leave will have
ended at this point.)
29. • September 25 neurologist's statement:
– Ms. Henry is under my care for a neurosurgical condition (cervical
myelopathy). Our office will be scheduling a surgical procedure for her in
the next few weeks. Due to extreme pain Ms. Henry has been unable to
go to work since July 1, 2008. She is to remain out of work until further
• Plaintiff's employment is terminated.
• Plaintiff files suit claiming that the employer failed to
reasonably accommodate her disability by granting her
additional leave beyond that required by the FMLA.
30. • Court's Decision:
– Limited extension of medical leave may, under some circumstances,
constitute a reasonable accommodation.
– An indefinite leave, by definition, is not a reasonable accommodation
because it does not enable the employee to perform her essential job
functions either presently or in the immediate future.
– "Wait and see" approach suggested by Plaintiff is rejected.
31. NATIONAL LABOR RELATIONS ACT
Confidentiality of workplace investigations
Banner Health System d/b/a Banner Estrella Medical Center
(National Labor Relations Board, July 30, 2012).
32. • Banner Health System d/b/a Banner Estrella Medical Center
– Employee works as sterile processing technician at a medical center.
– Employee protests makeshift sterilization methods, including use of low-
temperature sterilizer and hot water from coffee machine.
– HR consultant advises employee that she will investigate and instructs
employee not to discuss the matter with coworkers while investigation is
33. Banner Health System d/b/a Banner Estrella Medical Center
• Blanket policy prohibiting employees from discussing ongoing
investigations violates the National Labor Relations Act.
– Employer must demonstrate a legitimate business need for confidentiality.
– "Generalized concern" with protecting the integrity of an investigation is not
34. Banner Health System d/b/a Banner Estrella Medical Center
Factors to consider:
1. Do witnesses need protection?
2. Is evidence in danger of being destroyed?
3. Is testimony in danger of being fabricated?
4. Is there a need to prevent a cover up?
35. RETALIATORY DISCHARGE/WHISTLEBLOWER STATUTE
• T.C.A. §50-1-304(b): "No employee shall be
discharged or terminated solely for refusing to
participate in, or for refusing to remain silent about,
• To whom must the whistle be blown? Must law
enforcement or an agency be notified, or is an internal
36. • Simon v. Ernest Tubb Record Shop, Inc. (U.S.
District Court, Middle District of Tennessee,
November 2, 2012).
– Store denies employment to female
applicant based on policy that at least one
male needs to be on duty at all times.
– Store's General Manager meets with store's
owner and attorney, protests the policy and
states that the policy "is going to cost the
company a lot of money."
– General Manager is terminated and files suit
for retaliatory discharge.
37. • Court's Decision:
– Individuals asserting a whistleblowing claim must show more than the
fact that the employer violated the law or engaged in illegal activities.
– Report of the illegal activities must be made to some entity other than
• But see Lawson v. Adams (Tennessee Court of Appeals, October 6,
2010) – reporting to law enforcement or regulatory agency not
required when claim is based on Plaintiff's refusal to participate in
38. RELIGIOUS DISCRIMINATION AND ACCOMMODATION
• Porter v. City of Chicago (Seventh Circuit Court of
Appeals, November 8, 2012).
• How far must an employer go in accommodating an
employee's religious beliefs and practices? What if
the employee doesn't like the accommodation
39. • Porter v. City of Chicago
– Employee worked in a City department which had to be staffed 24/7.
– Employee was originally assigned to group which had Sundays off but was
switched to a different schedule when she returned from medical leave.
– Employee is active in her church and requests schedule which will permit her
to be off Sunday mornings.
– Division Director suggests that employee switch from first to second shift
which would allow her to attend church services.
– Employee doesn't want to work second shift and doesn't follow up on
40. • Porter v. City of Chicago
– Court's Decision:
• A suitable accommodation is one which eliminates the conflict between
the requirements of the job and the employee's religious practices.
• The accommodation offered need not be the employee's preferred
• Employee can't simply ignore an employer's suggestion of an
accommodation but has an obligation of "bilateral cooperation."
43. TENNESSEE RIGHT-TO-WORK LAW
TENN. CODE ANN. § 50-1-206
• Codifies Tennessee's public policy that employees have
the right to work without joining a union.
• Allows employers to post or disseminate notice of
employee rights under new law.
• Commissioner of Labor created "model notice language"
(included in materials).
• Effective April 25, 2012.
44. TENNESSEE MEAL BREAK LAW
TENN. CODE ANN. § 50-2-103(h)
• Employees must receive a 30-minute meal break unless
they have ample opportunity to take a break.
• Employees serving food/beverages who receive tips now
may waive right to meal break.
• Statute specifies language for waiver agreement, which
must be in writing and posted.
• Effective May 17, 2012.
45. WORKERS' COMPENSATION
TENN. CODE ANN. § 50-6-225(a)(2)(A)
• Employee previously could file lawsuit in county in which she
"resides" or in which alleged injury occurred.
• Employee now must file in county:
– In which alleged injury occurred; or
– In which she "resided at the time of the alleged injury."
• Effective May 21, 2012.
46. WORKERS' COMPENSATION
PAIN MANAGEMENT (TENN. CODE ANN. § 50-6-204)
• Employee entitled to panel if treating physician refers for pain
• Employee may sign agreement with physician prescribing Schedule II,
III, or IV controlled substances that states:
– Conditions under which prescriptions may continue; and
– Risks of failure to comply with conditions.
• Permits utilization review when employee is prescribed 1 or more
Schedule II, III, or IV controlled substances for more than 90 days.
• Effective July 1, 2012.
47. UNEMPLOYMENT INSURANCE
ACCOUNTABILITY ACT OF 2012
• "Misconduct" now defined to include:
– "Conscious" disregard of employer's interests (not "willful
and wanton" as under previous definition).
– Carelessness or negligence that shows intentional and
substantial disregard of employer's interests or of the
employee's duties and obligations to employer.
48. UNEMPLOYMENT INSURANCE
ACCOUNTABILITY ACT OF 2012
• "Misconduct" now defined to include:
– Deliberate disregard of attendance policy (and discharge in
compliance with that policy).
– Knowing violation of state regulation that would result in
sanction/penalties or revocation of employer's license (for
employers required to be licensed).
49. UNEMPLOYMENT INSURANCE
ACCOUNTABILITY ACT OF 2012
• "Misconduct" now defined to include:
– Violation of employer's rule, unless employee demonstrates
• He did not know and could not reasonably have known of rule; or
• The rule is unlawful or not reasonably related to the job environment
• Effective May 21, 2012
50. UNEMPLOYMENT INSURANCE
ACCOUNTABILITY ACT OF 2012
• Other changes:
– Employee ineligible for benefits if incarcerated for four or more days in
– Defines "making a reasonable effort to secure work" as contacting at
least 3 employers per week or accessing services at career center.
• Effective September 1, 2012
– Allows separating employer to supply information to agency before
request for information issued (to proactively address termination
• Effective September 1, 2012
51. UNEMPLOYMENT INSURANCE
ACCOUNTABILITY ACT OF 2012
• Disqualified from receiving benefits:
– For workweeks during which claimant receives wages in lieu of
notice (except in WARN Act situations).
– For workweeks during which claimant receives severance
payments of at least same amount as he would have received
(except in WARN Act situations).
– If laid off but offered same or similar job with equivalent
– If job offer withdrawn because of refusal to
submit to, or failure of, drug test.
52. UNEMPLOYMENT INSURANCE
ACCOUNTABILITY ACT OF 2012
• Disqualification for failure to accept suitable work—
work is suitable if the gross weekly wages are:
– 100% of employee's average weekly wage, if offered during
first 13 weeks of unemployment;
– 75% if offered during 14th through 25th weeks;
– 70% if offered during 26th through 38th weeks; and
– 65% if offered after the 38th week.
53. OTHER UNEMPLOYMENT COMPENSATION ISSUES
TENN. CODE ANN. § 50-7-303(a)
• Discharge for work-related misconduct if:
– Employee enters into written agreement to obtain license or
certification by specific date; and
– Employee willfully fails, without good cause, to obtain license
or certification by agreed-upon date.
• Effective July 1, 2012.
54. OTHER UNEMPLOYMENT COMPENSATION ISSUES
TENN. CODE ANN. § 50-7-303(a)
• Employee not disqualified from benefits if:
– He left work because spouse is a member of armed forces;
– Spouse is subject of a military transfer; and
– Employee left employment to accompany spouse.
• Benefits paid from state's general revenue fund and do
not affect employer's experience rating
• Effective April 1, 2012
55. OTHER UNEMPLOYMENT COMPENSATION ISSUES
TENN. CODE ANN. § 50-7-303(a)
• Allows electronic submission of separation
• Employer may electronically initiate appeal.
• Effective May 9, 2012
58. THE EEOC IN 2012
IT WAS A BUSY LITTLE AGENCY
• Received the largest number of charges from employees in
its 46-year existence.
• Lots of guidelines, general guidance, regulations, and cases.
• Now what happens? Since the election is over and fiscal
year has ended?
59. THE EEOC WILL LIKELY HAVE
RENEWED ENERGY AFTER THE ELECTION
• Many agencies put agendas/plans for 2013 fiscal
year (September ends fiscal year) on hold pending
outcome of election.
• However, it is possible many programs, guidelines,
offered by the EEOC will not be funded by Congress.
60. LET'S LOOK AT SOME STATISTICS:
• In 2011 the EEOC received record number of charges
(99,947) compared with:
– 82,792 in 2008
– There has been a 31% increase since 2006
62. NUMBER OF CHARGES:
• Now We Have State Breakdown Statistics:
– EEOC has for first time revealed how many discrimination
charges and which type of charges have been filed in each
63. FIRST EVER FOR SUCH STATISTICS
• Statewide breakdown provides helpful information for
• With these statistics, employer knows exactly how many
of specific type charges filed in states where employer
exists or everywhere it has offices/plants.
64. LET'S REVIEW SOME NATIONAL TRENDS FIRST:
• Retaliation claims were the most common type of charge
filed in 2011.
• Age and disability claims constitute a large percentage of
• Interestingly – race and sex declined slightly across the
65. TENNESSEE –
CHARGES FILED STATEWIDE IN FY 2011
1. Race – 1,314 (39.7% of 6. National Origin – 225 (6.8%)
total state charges)
7. Religion – 102 (3.1%)
2. Retaliation – 1,299 (39.3%)
8. Color – 66 (2.3%)
3. Sex/Gender – 965 (29.2%)
9. Equal Pay Act – 41 (1.2%)
4. Disability – 785 (23.7%)
10.GINA – 12 (0.4%)
5. Age – 660 (20.0%)
66. GEORGIA –
CHARGES FILED STATEWIDE IN FY 2012
1. Race – 2,417 (43.2% of total 6. National Origin – 446 (8.0%)
7. Religion – 168
2. Retaliation – 1,877 (33.5%) (3.0%)
3. Sex – 1,636 (29.2%) 8. Color – 76 (1.4%)
4. Disability – 1,219 (21.8%) 9. Equal Pay – 58 (1.0%)
5. Age – 1,047 (18.7%) 10.GINA – 7 (0.1%)
67. EMPLOYER CAN OBTAIN THIS INFORMATION FOR EVERY
STATE IN WHICH IT:
• Does business
• Has an office/plant/warehouse
• Has employees
68. WHAT HAS THE EEOC ITSELF FILED?
• 261 merit-based lawsuits across the U.S.
– An increase of 11% over FY 2010
• Included 177 individual lawsuits and 84 "multiple
69. WHAT HAS THE EEOC ITSELF FILED?
EEOC-filed lawsuits in FY 2011 EEOC resolved (prior to trial) 277
– 162 Title VII claims lawsuits in FY 2011 = $90.9 million
– 80 Disability claims in monetary recovery:
– 26 Age claims – $54.3 million - discrimination claims
– 2 Equal pay claims – $8.4 million - age claims
– $27.1 - disability claims
70. SO WHAT'S AN EMPLOYER TO DO WITH THESE STATISTICS:
YOU CAN'T MANAGE WHAT YOU CAN'T MEASURE
• Consider them as part of your larger risk-management
– Regularly review training policies,
– Refresh educational efforts for new hires, current employees,
– Refresh special training for supervisors, hiring managers, and
– Assure your HR staff and supervisors are up-to-date in laws/guidance.
71. WHY ARE STATISTICS SO HIGH:
• Let's blame those pesky employees:
– It's the ECONOMY: The more layoffs and firings that occur,
the greater potential pool of workers who will make
discrimination and other charges – true or not – that's a fact.
• BUT LET'S GO A STEP FURTHER . . .
72. WHY ARE STATISTICS SO HIGH:
Let's blame ourselves:
– Many companies had gone a long time without having to layoff or
– Makes us lax – out of practice with current legal standards.
– Conduct layoffs or terminations without reviewing all laws, and
– WITHOUT CONSULTING LEGAL COUNSEL…
Say it ain't so!
73. WHAT ELSE HAS THE EEOC
BEEN BUSY WITH THIS YEAR?
• February 22, 2012: voted in a 4-year Strategic Plan.
• Outlines agency goals and achievement benchmarks
• Education and outreach mission.
74. THREE BASIC OBJECTIVES AND OUTCOME GOALS:
• To combat employment discrimination through
education and outreach.
• To prevent employment discrimination through
education and outreach.
• To deliver excellent and consistent service through a
skilled and diverse workforce and effective systems.
75. IS THIS BLAH, BLAH, BLAH OR IS IT IMPORTANT?
• VERY IMPORTANT: STRATEGIC ENFORCEMENT PLAN
• EEOC named five priorities nationwide to implement its
76. EEOC STRATEGIC PRIORITIES
1. ELIMINATE SYSTEMIC BARRIERS IN RECRUITING AND
• Will review facially neutral hiring practices that adversely
impact protected groups.
– Restrictive application processes.
– Use of pre-employment screening tools (e.g., age or DOB).
– Background screenings.
77. EEOC STRATEGIC PRIORITIES
2. PROTECT IMMIGRANT, MIGRANT AND OTHER VULNERABLE
• Focus on disparate pay, job segregation, harassment,
• And discriminatory language policies that impact these
78. EEOC STRATEGIC PRIORITIES
3. ADDRESSING EMERGING ISSUES:
– ADA Amendments Act issues: particularly coverage issues and proper
application of ADA defenses, such as undue hardship, direct threat, and
– LGBT (lesbian, gay, bisexual and transgender individuals) coverage under
Title VII sex discrimination provisions.
– Accommodation of pregnancy when women are forced into unpaid leave
but denied accommodations of other routinely similarly-situated
79. EEOC STRATEGIC PRIORITIES
4. PRESERVING ACCESS TO THE LEGAL SYSTEM
• Targeting polices and practices that prohibit exercise of rights:
– Retaliatory actions.
– Overly broad waivers.
– Settlements that prohibit filing charges with EEOC.
– Settlements that prohibit cooperating with EEOC investigations.
– Failure to retain records.
81. EEOC INTENDS TO GIVE PRIORITY TO
WHAT IT TERMS "SYSTEMIC CASES"
• Pattern or practice, policy, and/or class action-type
cases involving discrimination allegations that have a
broad impact on an industry, business or geographic
84. NEW RULE THAT PROVIDES GUIDANCE ON A DEFENSE
TO AGE CLAIMS
• Applies in age "disparate impact" cases
• A facially neutral policy that adversely affects older
85. EMPLOYER DEFENSE TO A DISPARATE
IMPACT AGE CASE
• Showing that practice was based on a reasonable
factor(s) other than age (RFOA).
• EEOC says its new rule is meant to conform to current
case decisions and provide guidance about
application of the defense.
86. WHAT RULE SAYS:
• In determining whether a practice is based on an RFOA,
– Extent factor is related to business purpose.
– Extent to which employer accurately defined the factor and
applied it fairly and accurately, and whether managers were given
training on how to apply the factor and avoid discrimination.
87. WHAT RULE SAYS:
• In determining whether a practice is based on an RFOA
– Extent to which employer limits supervisors' discretion to assess
– Extent to which employer assessed the possible adverse impact of its
practice on older workers.
– Degree of harm to individuals within the protected age group, and extent
to which the employer took steps to reduce that harm.
88. WHAT RULE SAYS:
• You should read the New Rule on RFOA; it is confusing and
does not clarify the RFOA standard.
• It did not address the concerns of the business community.
• To assert the defense, the rule requires that supervisors must
first be given guidance and training on how to avoid age bias.
89. THERE'S MORE? OH YES!
• On April 25, 2012, EEOC issued updated Criminal Record
Guidance that highlights strategic and practical consideration
– Does not prohibit consideration of criminal records as part of
decision-making process in hiring or keeping employees
– But criminal record screening process must be "job related
and consistent with business necessity"
90. CRIMINAL RECORDS GUIDANCE
• Employers should consider 3-step process that takes
– Nature and gravity of offense(s).
– Amount of time that has passed since offense or completion
of jail sentence.
– Nature of job held or applied for.
91. CRIMINAL RECORDS GUIDANCE
• EEOC further says that if employer decides to disqualify an
individual from employment based on past criminal conduct:
– Inform him/her of reason.
– Provide an opportunity for explanation why shouldn't be
– Consider whether it really should exclude person.
92. MORE, MORE, PLEASE SAY
• Stalking: EEOC Releases Q&A that appears to extend Title
VII and ADA to protect employees or applicants who have
experienced domestic or dating violence, sexual assault,
or stalking outside of the workplace.
• Morbid Obesity:
– Is it now a disability under the ADA? Getting there.
– EEOC v. BAE Systems, Inc.
93. MORE, MORE, PLEASE SAY
• Transgender Discrimination Recognition under Title
VII is Alive and Well
– Macy v. BATFE
• EEOC new lawsuits: Disability, gender, race: sue first;
then figure it out
94. INDIVIDUAL SUPERVISOR LIABILITY IN
DISCRIMINATION AND HARASSMENT CASES:
ACCOUNTABILITY UNDER TITLE VII, THE TENNESSEE HUMAN
RIGHTS ACT, THE FMLA, AND THE FLSA
PRESENTED BY: TOM GREENHOLTZ
95. GENERAL RULE
*Employers are "directly liable" for their own acts of unlawful
discrimination and harassment.
*An employer may also be "vicariously liable" for the acts of
unlawful discrimination or harassment by its employees.
*In other words, under most all federal and state discrimination
laws, the buck stops (ultimately) with the employer.
96. TITLE VII OF THE 1964
CIVIL RIGHTS ACT
*Title VII generally prohibits employment discrimination
based on race, color, religion, sex, or national origin.
*Title VII's definition of "employer" includes "any agent" of
an employer. See 42 U.S.C. § 2000e-5(b).
*However, all courts addressing the issue have found that
individual supervisors are not personally liable under
Title VII for their own acts.
97. TENNESSEE HUMAN RIGHTS ACT ("THRA")
* Like Title VII, the THRA prohibits an employer from discriminating
against a person based on race, creed, color, religion, sex, age or
* And like Title VII, the THRA defines an "employer" to include "any
person acting as agent of an employer directly or indirectly."
* And like Title VII, The Tennessee Supreme Court has held that this
language does not impose personal liability on a supervisor.
*But, unlike Title VII, the TRHA has a special statute: Tenn.
Code Ann. § 4-21-301(2).
*Under this statute, a supervisor can be sued individually if he
or she aids, abets, incites, compels or commands another
person to engage in discrimination or harassment.
*In 1997, the Tennessee Supreme Court held that an individual
is liable for a hostile work environment under the THRA when:
*A hostile work environment existed;
*The supervisor acted to affirmatively to aid, abet, incite,
compel, or command an employer not to take remedial action
to the hostile work environment; and
*The employer did not take adequate remedial action.
100. AIDING & ABETTING: WHAT?
*Key Question: How does a supervisor "aid" or "abet" an
employer to not take remedial action?
*In Tennessee, supervisor is not liable simply by discriminatory
or harassing conduct.
*Rather, the supervisor must encourage the discrimination or
prevent employer from taking corrective action.
101. AIDING & ABETTING? NOT HERE!
*General Rule: No personal liability exists where supervisor is
acting within scope of his or her own duties.
*A supervisor's failure to act or mere presence during the
employer's discrimination is not enough.
*Rather, the supervisor must take action separate and apart
from his or her position.
102. AIDING & ABETTING? DANGER!
* Easy Cases: Commanding Action by Others:
* Rhea v. Dollar Tree Stores, Inc., 395 F. Supp. 2d 696 (W.D. Tenn. 2005)
* Fite v. Comtide Nashville, LLC, 686 F. Supp. 2d 735 (M.D. Tenn. 2010)
103. AIDING & ABETTING? DANGER!
*Middle Ground Case: Denials Plus Other Actions
*Harris v. Dalton, E2000-02115-COA-R3CV, 2001 WL 422964
(Tenn. Ct. App. Apr. 26, 2001)
*Supervisor denied sexual harassment
*But, also urged employer to "get rid" of the employee
*Plus, employer knew or should have known that supervisor
was engaged in sexually offensive behavior
104. AIDING & ABETTING? DANGER!
*Harder Cases: Mere Denials Without Other Actions
*Tennessee Supreme Court:
*Allen v. McPhee, 240 S.W.3d 803, 818 (Tenn. 2007)
*Tennessee Court of Appeals:
*Steele v. Superior Home Health Care of Chattanooga,
Inc., No. 03A01-9709-CH-00395, 1998 WL 783348
(Tenn. Ct. App. Nov. 10, 1998)
105. THRA CONCLUDED
*Applies to all forms of discrimination prohibited by the THRA.
*But, courts have held that the "Aiding and Abetting" statute
does not apply to disability discrimination under the Tennessee
*Disability discrimination is a Class C Misdemeanor.
106. AIDING & ABETTING? OTHER STATES
*Some states allow direct actions against supervisors for
discrimination and harassment.
107. AIDING & ABETTING? OTHER STATES
*Several states have statutes similar to Tennessee's "aiding and
* CALIFORNIA * NEW JERSEY
* COLORADO * NEW YORK
* CONNECTICUT * OREGON
* IOWA * WEST VIRGINIA
* MASSACHUSETTS * DISTRICT OF COLUMBIA
108. AIDING & ABETTING? OTHER STATES
*Other states allow individual supervisor liability more easily
* Courts will find "aiding and abetting" if the supervisor provides
"substantial assistance or encouragement" for the
* Liability often does not require an intent to discriminate.
* The actual harassment itself can constitute aiding or abetting.
109. FLSA & FMLA
*An "employer" includes "any person who acts, directly or
indirectly, in the interest of an employer to any of the
employees of such employer."
*Thus, if the supervisor has authority to grant leave, discharge
employees, or determine employee salaries, individual
managers or owners may be liable.
*Could include HR Managers!
110. WHY DOES THIS MATTER TO EMPLOYERS?
*Litigation costs can increase tremendously with these issues
*Multiple lawyers, multiple claims.
*More avenues for discovery.
*May result in greater pressure to settle disputed case.
*Plaintiff's lawyers may purposefully sue managers to create
conflicts in the company's defenses.
*Possible corporate indemnification issues.
111. SUPERVISOR ISSUES? WHAT TO DO.
* First: Keep supervisor out of any decision making process regarding
the complaint of discrimination or harassment.
* Second: Do not take supervisor's denial at face value. Conduct
thorough investigation and make independent determination.
* Third: Take all reasonable steps to correct issue, if one exists.
* Fourth: Know when to get help.
112. THE LATEST FROM THE NLRB ON SOCIAL
MEDIA AND OTHER FUN STUFF
PRESENTED BY: DAN GILMORE
113. WHO ARE THE CURRENT MEMBERS OF THE NLRB?
• Chairman Mark Gaston Pearce (D)
Sworn in as a Board Member on April 07, 2010. Named by President Obama on August 27,
2011. Term ending on August 27, 2013.
• Brian Hayes (R)
Sworn in as a Board Member on June 29, 2010. Term ending on December 16, 2012.
• Sharon Block (D)
Sworn in as a Board Member on January 9, 2012. Term ending on December 16, 2014.
• Richard F. Griffin, Jr., (D)
Sworn in as a Board Member on January 9, 2012. Term ending on August 27, 2016.
114. THE AGC'S THREE REPORTS ON
August 18, 2011 - Detailed the outcome of investigations by NLRB's Division
of Advice into 14 cases involving the use of social media and
employers' social and general media policies.
January 25, 2012 - Covered an additional 14 cases, half of which involved
questions about employer social media policies. The remaining cases
involved discharges of employees after they posted comments on Facebook.
May 30, 2012 - Covered an additional seven cases and focused exclusively on
policies governing the use of social media by employees.
These reports merely offered advice to the Regional Directors and
guidance to practitioners and human resource professionals. They
are not binding on the Board or employers.
115. THE NLRB'S FIRST DECISION ON
• Issued September 7, 2012
• Addressed the legality of rules in "Costco's Employee Agreement."
General Rule: An employer violates Section 8(a)(1) of the NLRA when it maintains a
work rule that reasonably tends to chill employees in their exercise of Section 7 rights.
"Employees shall have the right to self-organization, to form, join, or assist labor
organizations, to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection, and shall also have the right to refrain from any or
all such activities …"
• Prohibits "all Costco employees from discussing private matters of
members and other employees ... including topics such as…sick calls, leaves
of absence, FMLA call-outs, ADA accommodations, workers' compensation
injuries, personal health information, etc."
• The NLRB concluded that since all of these "private" matters are clearly
terms and conditions of employment of Costco's employees, the explicit
prohibition of employees discussing these matters with anyone, which
would include other employees or union representatives, is overbroad and
unlawful under Section 8(a)(1).
• A portion prohibits the disclosure of certain "confidential" employee
information (including names, addresses, phone numbers and e-mail
addresses) "to any third party for any reason, unless (1) we have the
person's prior consent or (2) a special exception is allowed that has been
approved by the legal department."
• The NLRB held that this rule is overbroad since it does not exclude
information obtained in the normal course of work or from other
employees and would reasonably be perceived by employees as inhibiting
Section 7 conduct.
118. SOCIAL MEDIA – ELECTRONIC
COMMUNICATIONS &TECHNOLOGY POLICY
• A portion requires "All employees are responsible for communicating with
appropriate business decorum whether by means of e-mail, the Internet,
hard-copy, in conversation, or using other technology or electronic means."
• The Board held the rule lawful since the rule on its face does not refer to
Section 7 activities, was clearly intended to promote "a civil and decent
workplace" and reasonable employees would not infer that the rule
restricts Section 7 activity. It's not enough that employees could interpret
the rule as inhibiting Section 7 conduct.
119. SOCIAL MEDIA – ELECTRONIC
COMMUNICATIONS & TECHNOLOGY POLICY
• A portion requires that "Employees should be aware that statements posted
electronically (such as online message boards or discussion groups) that damage
the Company, defame any individual or damage any person's reputation, or violate
the policies in the Costco Employee Agreement, may be subject to discipline, up to
and including termination of employment."
• The Board held that this rule is lawful since the rule on its face does not refer to
Section 7 activities, was clearly intended to promote "a civil and decent workplace"
and reasonable employees would not infer that the rule restricts Section 7 activity.
It's not enough that employees could interpret the rule as inhibiting Section 7
120. SOCIAL MEDIA – ELECTRONIC
COMMUNICATIONS & TECHNOLOGY POLICY
• A portion reads "Sensitive information such as … payroll … may not be shared ,
transmitted or stored for personal or public use without prior management
approval. Additionally, unauthorized removal of confidential material from
Company premises is prohibited."
• The Board concluded that both sections of this rule violate Section 8(a)(1) since
a reasonable employee would construe the rule as inhibiting their exercise of
Section 7 activity, such as sharing (or discussing) payroll information with other
employees or with outsiders, such as union representatives.
121. THE NLRB'S FIRST DECISION INVOLVING A DISCHARGE
FOR USE OF SOCIAL MEDIA
• Announced October 1, 2012
• A salesman for a BMW dealership posted photos on his Facebook page of a
vehicle that an underage driver accidentally drove over a wall and into a
pond following a test drive at an adjacent Land Rover dealership.
• On the same day, the salesman also posted critical comments and photos
with fellow salespeople about the quality of food and drinks served at a
customer marketing event at the BMW dealership.
• One week later, BMW terminated the salesman's employment.
122. DISCHARGE FOR USE OF SOCIAL MEDIA
• In his first report on social media cases before the NLRB, the AGC concluded that
the salesman had been unlawfully discharged.
• The AGC concluded that the salesman's Facebook comments about the dealership's
food and beverage choices were protected concerted activity under the NLRA
because they were communications with other employees about a topic that could
impact their commission-based compensation system.
• The AGC also determined that the dealership discharged the employee solely
because of these Facebook comments. The AGC therefore concluded that the
dealership violated the NLRA by discharging the salesman for engaging in protected
concerted activity via his Facebook comments.
123. DISCHARGE FOR USE OF SOCIAL MEDIA
• The Administrative Law Judge (ALJ) who heard the case disagreed.
• The ALJ found that the salesman was discharged solely because he posted
photos on Facebook of the test drive accident.
• Since the test drive photo did not involve a discussion with other
employees about the salesman's terms and conditions of employment, it
was not protected concerted activity. As a result, his conduct was not
protected under the NLRA, and the ALJ concluded that he had not been
124. DISCHARGE FOR USE OF SOCIAL MEDIA
• The NLRB agreed with the ALJ that the employer based its termination decision solely on the
• Consequently, it was not necessary to determine whether the posting regarding the marketing
event amounted to protected concerted activity.
• However, the NLRB also evaluated the employer's "Courtesy" rule from its employee
handbook, which prohibits disrespectful conduct or use of profanity or "any other language
which injures the image or reputation of the Dealership" when interacting with customers,
vendors, suppliers and fellow employees.
• The NLRB concluded that this policy was unlawful since employees would reasonably believe
that it prohibits negative or critical comments that are protected by the NLRA.
125. WHAT'S THE LESSON FOR EMPLOYERS?
• Because the outcome of many cases hinges on the
employer's motivation for its decision, employers should
continue to fully and accurately document the actual
bases for any disciplinary decisions, particularly if the
result is termination.
126. WHAT'S NEXT FROM THE NLRB
• More cases pending regarding the legality of
company policies and discharges based upon the
use of social media.
• Chairman Pearce said last month that the NLRB may
decide whether clicking the "Like" button on
Facebook is concerted protected activity under the
127. STATES ARE CHIMING IN
States Have Begun to Limit Employers' Right to Social Media Activity of
Applicants and Employees
• Maryland's User Name and Password Privacy Protection and Exclusions Act
• Illinois' Right to Privacy in the Workplace Act
• California's AB 1844 Regarding Employer Use of Social Media
The Password Protection Act and Social Networking Online Protection Act
have been introduced in Congress but have not moved.
128. PARTING THOUGHTS: OWNERSHIP OF LINKEDIN
• Is an employee's LinkedIn profile a personal or work asset?
• How to best clarify from the outset? Maintain access?
• Do established "Connections" constitute personal or company
• Who has the rights to the potential business opportunities?
129. TO KEEP OR NOT TO KEEP: DOCUMENT
RETENTION ISSUES IN 2012
PRESENTED BY: JUSTIN L. FURROW
130. WHAT RECORDS ARE WE
REQUIRED TO KEEP?
• Various laws require you to retain "employment
– Payroll records
– Leave requests
– Termination documents
131. WHAT LAWS GOVERN RECORDKEEPING?
• Federal laws
• State laws
• Administrative regulations
• City/County ordinances
• Executive orders
132. EXAMPLES OF FEDERAL AND STATE RECORDKEEPING
• Title VII - one year from making record or taking action.
• FLSA - at least three years.
• IRCA - three years from date of hire or one year from date of
discharge, whichever is longer.
• THRA - six months from date made or date of discharge,
whichever is longer.
133. WHERE DO WE KEEP ALL OF
• In the personnel file?
– Do we have to give employees a copy?
• What about medical information?
– ADA and GINA records must be kept in a separate,
• Federal laws do not explicitly include emails
– BUT—they also don't exclude them.
• Emails must be retained if they fall within the
statutorily defined categories.
• What about web searches?
ARE WE GENERALLY REQUIRED TO KEEP THEM?
• No federal requirement to keep all emails.
• Discovery of electronically stored information
generally drives email retention policies.
• Should be retained for some limited period.
136. DISCOVERY OF ELECTRONICALLY STORED INFORMATION
• Amendments to federal and state procedural rules.
• Litigants now can obtain "reasonably accessible"
electronically stored information.
• Can dramatically expand document production in
137. WHEN ARE OUR
DISCOVERY OBLIGATIONS TRIGGERED?
• "Reasonably anticipates litigation"
– Unemployment claims?
– EEOC Charge?
– Demand letter from plaintiff's counsel?
138. LITIGATION HOLD PROCEDURES
• Don't necessarily wait for the "letter" from your
• Identify "key players" to be included in litigation hold.
• Suspend certain deletion procedures.
• Consider hard drive imaging, where cost effective and
139. WHAT HAPPENS IF WE "ACCIDENTALLY" DESTROY
• Potential spoliation claims against company
– Monetary sanctions
– Adverse inference jury instruction
• Potential sanctions against individuals, too
• Not just applicable to intentional actions
This presentation is provided with the understanding that the presenters are not
rendering legal advice or services. Laws are constantly changing, and each federal law,
state law, and regulation should be checked by legal counsel for the most current
version. We make no claims, promises, or guarantees about the accuracy,
completeness, or adequacy of the information contained in this presentation. Do not
act upon this information without seeking the advice of an attorney.
This outline is intended to be informational. It does not provide legal advice. Neither
your attendance nor the presenters answering a specific audience member question
creates an attorney-client relationship.