Suspension Not Trivial, March 20, 2001
A federal appeals court in Illinois has rejected an employer's argument that a one-week suspension is not "a materially adverse employment action." The employer, which was a hospital, convinced the trial court that the employee's sex discrimination claim should be dismissed because a suspension was not important enough to justify a Title VII lawsuit. In reversing the lower court, the appellate court found that the suspension was "avowedly disciplinary, with its attendant consequences for her pay and her permanent employment record." The Court explained that although "minor or trivial actions that make an employee unhappy" are not sufficient to give rise to a Title VII claim, a formal disciplinary suspension is more than minor or trivial.
Federal Court in Richmond Expands Concept of Retaliation, March 23, 2001
In Von Gunten v. Maryland, No. 00-1058 (4th Cir. March 20, 2001), the Fourth Circuit Court of Appeals reaffirmed that under Title VII, employer liability for retaliation is not limited just to those instances when an employer counters with an ultimate employment decision, such as a firing or demotion. Rather, adverse employment actions which affect the terms and conditions of that employee's job, even if the employer's conduct falls short of an ultimate employment decision, can still expose an employer to liability for retaliation within the meaning of Title VII.
In this case, plaintiff Barbara Von Gunten had complained to her employer, the Maryland Department of Education, of sexual harassment she allegedly experienced while working on a two-person boat with a male co-worker with whom she collected water samples from the Chesapeake Bay. After she complained to the fair practices office, she alleges her employer withdrew her state car, downgraded her yearly evaluation, reassigned her to less favorable work, improperly handled various administrative matters, and subjected her to retaliatory harassment. She ultimately resigned. Von Gunten sued for sexual harassment, constructive discharge, and retaliation. The United States District Court for the District of Maryland granted the employer's motion for summary judgment as to the constructive discharge and retaliation claims. The jury found for the employer on the sexual harassment claim.
Despite the Fourth Circuit's endorsement of a broad definition of "adverse employment action," it nevertheless found that the Department of Education's actions were not adverse, within the context of Title VII retaliation. Therefore, adverse employment actions, although legally sufficient for Title VII retaliation, must be objectively extreme to be practically sufficient for Title VII.
Arbitration Agreement Must Be Separate, March 26, 2001
In a 5-4 decision, the U.S. Supreme Court ruled that the Federal Arbitration Act of 1925, which requires enforcement of valid arbitration agreements, applies to most employment contracts and only exempts contracts involving transportation workers. Circuit City Stores v. Adams, No. 99-1379 (Mar. 21, 2001). In a similar case, decided just one day before Circuit City, the California Appeals Court held that an employee's signature acknowledging that she received, understood, and agreed to the terms in an employee handbook did not bind her to an arbitration agreement in the handbook. Room v. Y-3 Holdings, Inc., Cal. Ct. App., No. B136617 (Mar. 20, 2001).
Maryland's Article 49B May Soon Include Sexual Orientation, March 27, 2001
On March 20, 2001, Maryland's Senate Judicial Proceedings Committee passed the Antidiscrimination Act of 2001 (SB 205), which seeks to amend Article 49B to include sexual orientation as a protected status under the state's discrimination statute. Although similar bills have been introduced in the past, this is the first time that such a bill has survived the conservative Judicial Proceedings Committee.
Although state employers are prohibited from discriminating on the basis of sexual orientation, private employers in Maryland are not subject to such a prohibition. Four localities, however, comprising almost 50% of Maryland's population, do prohibit such discrimination in private employment. They are Baltimore City, Howard County, Montgomery County and Prince George's County.
The proposed Act defines sexual orientation as "the identification of an individual as to male or female homosexuality, heterosexuality or bisexuality."
Passage of the Act in the House of Delegates is likely. A similar bill was passed in 1999. Should the bill pass the Senate, it will become law and become effective October 1, 2001. The General Assembly adjourns April 9, 2001. There may be a significant change to Maryland's anti-discrimination law in the next few weeks.
Supreme Court To Consider Arbitration Limits, March 26, 2001
The U.S. Supreme Court agreed to review a federal appeals court ruling that the EEOC, in prosecuting a suit in its own name, is bound by a private arbitration agreement between the employee and his employer. In October 1999, the Fourth Circuit held that the EEOC may only pursue injunctive relief for a person's Americans with Disabilities Act claims against his employer, and that the employee must arbitrate issues regarding individual relief, including monetary relief, back pay, and reinstatement. Recognizing the federal policy to give agreements effect that favor the arbitration mechanism for dispute resolution, and the important role of the EEOC in eradicating work-place discrimination, the Fourth Circuit struck a balance between these competing policies.
Company Must Pay Sales Commissions Earned During Periods of FMLA Leave, March 28, 2001
The United States Court of Appeals for the Fourth Circuit affirmed a $1,298 jury award in favor of an employee for sales commissions she earned while on medical leave recovering from reconstructive surgery following treatment for breast cancer. The jury award also included over $75,000.00 in legal fees for the employee. The company refused to pay for sales made and argued that an employee does not have the legal right to recover commissions earned while the employee is on leave under the Family Medical and Leave Act of 1993 (the "FMLA"). The trial court and the appellate court disagreed. Both courts found that an employer that violates the FMLA is liable to an employee for damages equal to "any wages, salary, employment benefits, or other compensation denied or lost to such employee by reason of the violation." The Fourth Circuit reasoned that any sales commission earned by an employee while on FMLA leave constituted "other compensation" under the statute.
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Employment Decisions Should be Based on Objective Evidence
Employment decisions should not be based on perceptions. "He's a better employee," or "he can't do the job," will not do unless there is objective evidence to back up the conclusion. A federal court has recently confirmed this principle under the Americans With Disabilities Act.
The employee, a double amputee, worked for a power company. The company imposed restrictions on the worker based on a good faith belief that such restrictions were appropriate. The court found these restrictions to be a violation of the ADA because they were not based on an objective, timely assessment of the employee's disability. Rather, they were based on perception and stereotype, just the kind of perception and stereotype the ADA is designed to eliminate. Lowe v. Alabama Power Co., 11th Cir., No. 99-11179 (Mar. 23, 2001).
ADA restrictions must be based on facts or at least beliefs based on medical or other objective, scientific evidence. In my opinion, to avoid liability, all employment decisions should be based on objective, provable evidence.
Taco Bell Manager May Have Sexually Harassed Employees, March 30, 2001
The Fourth Circuit, in EEOC v. R&R Ventures, No. 00-1702 (4th Cir. March 23, 2001), held that the severity of a former Taco Bell manager's alleged treatment of two employees raised a triable issue of hostile work environment sexual harassment.
The two employees, who were 15 and 20, alleged that the older male manager made sexual jokes and sexual remarks about their bodies on a daily basis, leered at them, and incessantly made put-downs, often calling them "stupid" in front of customers and other employees. The United States District Court of Maryland had granted summary judgment for the employer, ruling that the manager's conduct was not severe enough to create a triable issue of harassment.
In reversing the trial court's decision, the Fourth Circuit took interest with the age of the two employees, who were significantly younger than the adult male supervisor. The Court characterized the supervisor's behavior as a systematic effort to cripple the self esteem of teenagers who assisted him at the store. In rejecting the employer's affirmative defense asserted under the applicable Supreme Court cases, the Fourth Circuit stated that the two employees complained about the manager at "virtually every available opportunity" but the management failed to correct the harassing behavior.
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