employment Archives - Page 18 of 22 - The National Law Forum

EEOC Signals Intent to Tighten Enforcement of Laws Prohibiting Pregnancy-Related Discrimination

Noting that it continues to see “a significant number of charges alleging pregnancy discrimination,” and that its “investigations have revealed the persistence of overt pregnancy discrimination, as well as the emergence of more subtle discriminatory practices,” the U.S. Equal Employment Opportunity Commission (“EEOC”) recently issued Enforcement Guidance on Pregnancy Discrimination and Related Issues (“Enforcement Guidance”). The full text of the Enforcement Guidance is available here.

The EEOC’s issuance of the Enforcement Guidance, which focuses primarily on the fundamental requirements of the Pregnancy Discrimination Act (“PDA”), while also touching on the pregnancy-related protections provided under the Americans with Disabilities Act (“ADA”), sends a strong signal to employers that their employment decisions and policies will now be more intently scrutinized for actionable pregnancy discrimination.¹

The Enforcement Guidance focuses on the issue of equal access to benefits – in particular, to light duty, leave, and health insurance. With regard to light duty, employers may not treat employees whose capacity is limited by pregnancy, or a pregnancy-related condition, any differently than they do employees who are similarly limited, but for reasons unrelated to pregnancy.

As for leave, employers should be cognizant of the following. First, they may not force an employee to take leave because she is or has been pregnant, so long as she is able to perform her job. Second, the PDA mandates that employers permit women with pregnancy-related physical limitations to take leave on the same terms and conditions as employees who are similarly limited for other reasons. Finally, while leave related to pregnancy-related medical conditions will, necessarily, be limited to female employees, leave to bond with or care for a newborn must be extended to male and female employees on an equal basis.

With regard to health insurance, employers should note that an employer-provided health insurance benefit plan must cover pregnancy-related costs to the same extent it covers medical costs unrelated to pregnancy. This required symmetry of coverage must extend to costs stemming from an insured employee’s pre-existing pregnancy. Additionally, an employer may be in violation of the PDA if the health insurance it provides does not cover prescription contraceptives, regardless of whether the contraceptives are prescribed for birth control or for medical purposes. The Enforcement Guidance does not address whether, in the wake of the U.S. Supreme Court’s Hobby Lobby decision, certain employers may be exempt from providing insurance coverage for contraceptives.

The guidance also addresses the obligations under the ADA to provide pregnant employees with reasonable accommodations to address pregnancy-related limitations. Such accommodations may include:

redistributing marginal or nonessential functions – such as occasional lifting – that a pregnant worker cannot perform;
modifying workplace policies, such as to afford a pregnant employee more frequent breaks;
- allowing a pregnant employee placed on bed rest to work remotely (where
  
  feasible); or
- granting leave to a pregnant employee in excess of what the employer typically provides under its sick leave policy.
  
  The final section of the Enforcement Guidance provides “best practices” that employers can utilize to reduce their exposure to pregnancy-related liability under the PDA and ADA. The EEOC suggests, as a general matter, that employers should:
- develop, disseminate and enforce a strong policy based on the requirements of the PDA and ADA;
- train managers and employees regularly about their rights and responsibilities related to pregnancy, childbirth, and related medical conditions;
- conduct employee surveys and review employment policies to identify and correct any policies or practices that may disadvantage women affected by pregnancy, childbirth, or related medical conditions, or that may perpetuate the effects of historical discrimination in the organization;
- respond to pregnancy discrimination complaints efficiently and effectively; and
protect applicants and employees from retaliation.

In light of the EEOC’s heightened emphasis on PDA and ADA enforcement, employers should consult counsel before undertaking employment actions that may implicate pregnancy-related protections under the PDA or ADA, and to evaluate whether revisions to existing employment policies are needed to limit exposure to pregnancy- related liability.

ARTICLE BY

Sills Cummis & Gross P.C.

It Depends: The Top 3 Inherently Gray Areas of Employment Law

Fact-specific.

Case by case.

These are just two of the terms that stand for one of the frustrating (for employers) truths of many areas of employment law: there are few black and white answers. There are endless shades of gray, and in honor of this week’s letter of the law (G), we recognize three common gray areas and some specific questions that must be asked when addressing situations under each. The fact that there are so many questions that need to be answered under each explains why they are gray areas!

The Letter G

1. Is a noncompete agreement enforceable?

What duties did the employee perform for the previous employer?
What duties is the employee performing for the new employer?
Did the employee engage in any underhanded behavior while still employed by the previous employer (such as copying confidential documents)?
What have been the previous employer’s practices and track record in enforcing noncompetes in the past?
What state’s law does the agreement say will apply?
What state is the employee located in now?
Does the contract specify where any disputes must be litigated?

2. Does an employer have to provide a particular reasonable accommodation under the disability discrimination laws?

What efforts have been made to communicate with the employee about the situation?
Has the employee been cooperative in responding to inquiries?
Do you have a medical assessment of the employee’s ability to perform his/her job?
Do you trust that assessment (or do we think the physician’s assistant filled it out the way the employer wanted him/her to)?
How unique are the employee’s job duties?
What are the job duties?
Which job duties do you thing are not being adequately performed?
Do you question the employee’s efforts in attempting to work, or do you think the employee is to any degree malingering?

3. Is a worker an independent contractor or an employee?

Is there any written agreement with the worker?
Are there are other workers performing the same or similar tasks, and are they considered employees or contractors?
How much direction is the worker receiving from the company on the details of performing tasks?
Does the worker provide services for other companies?
Is the worker full time or close to it for your company?
Does the worker provide any or all of the tools need to perform his/her work?
How long has the worker been working for your company?

These issues are like snowflakes. With so many questions (and these are not intended to be exhaustive lists), no two sets of answers will be exactly alike. That can be frustrating, because it is easier to administer rules with clearer thresholds: Two weeks of vacation. No flip flops at work. The work day is 8:30 to 5:00 with a half hour lunch break at noon. Those rules are usually pretty easy. Like it or not, though, what employment lawyers and employers spend most of their time on are the snowflakes, and carefully working through the situations to manage them as cost-effectively as possible.

What gray areas are you spending your time on this week?

ARTICLE BY

William A. Nolan

Barnes & Thornburg LLP

“STOP”: Four Tips For Document Preservation When Facing Potential Litigation

In today’s digital environment, it is crucial that employers act fast when faced with a suit (or the threat of suit) by an employee or ex-employee. When potential litigation is on the horizon, the first step should always be to contact legal counsel. The next step should protecting documentation that might be relevant to the dispute. Keep in mind this acronym to make sure you are following that right steps for documentation preservation:

Search for employees that might possess information pertaining to the dispute. This might include supervisors, managers, or people who shared a workspace with the claimant, but it might also include others not under the direct supervision of the company, such as independent contractors or consultants that worked with the claimant.

Think about all sources of information – smart phones, tablets, cloud-based servers, thumb drives, work email accounts, etc. Once the sources are identified, consider whether you have and can maintain access to them. In some cases, it may require notifying the claimant that he must turn over password information or relinquish his work-issued devices, but it is highly suggested you contact legal counsel before proceeding with this step.

Order a litigation hold on relevant information. Instruct employees to not destruct, forward or edit the relevant documentation in any way. In-house destruction procedures (such as shredding or the automatic email deletion) should be cancelled until further notice from counsel. Litigation hold instructions should be made in writing and provide explicit instructions. The instructions should identify the type of materials and date ranges that are subject to the hold. A litigation hold should also identify to whom questions or concerns about the hold can be directed.

Present all information to counsel. He or she will then determine exactly what information needs to be preserved and for how long. Do not think that you, as an employer, know what information is important. By getting rid of documentation, even without ill intent, you may be hurting your ability to present a defense to the claims.

No employer likes facing employee-related litigation, but it is important to “STOP” and take time to ensure document preservation in the wake or threat of a suit.

E-Verify Update and Improvements

E-Verify has been operational since 1997 as part of a Basic Pilot Program to assist employers to verify electronically that a newly hired employee is authorized to work in the US. A number of states have made use of E-Verify mandatory, including North Carolina which requires that employers with 25 employees to have been enrolled in E-Verify by July 1, 2013.

Update

Currently there are over 530,000 employers nationwide enrolled in E-Verify. Statistically, the program has grown rapidly as has its accuracy, having verified close to 24 million cases. Of those, 98.81% have been confirmed as employment authorized. The US Citizenship and Immigration Services (USCIS) graphic below provides E-Verify’s latest statistics:

E-verify

The Monitoring and Compliance Branch (M&C Branch) was created by the USCIS in 2009 to ensure E-Verify is being used properly. Its main function is to monitor and guide E-Verify participants by phone, email, desk reviews and site visits. This unit does not fine employers, but does refer cases of suspected misuse, abuse or fraud to Immigration Customs and Enforcement (ICE) and the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC). There has been an uptick in complaints to the OSC resulting in some sizeable settlements. All settlement agreements described on the OSC website have one thing in common: all employers participated in E-Verify and the OSC became involved, for the most part, by the USCIS referring the employer to OSC. Thus, it is noteworthy that participation in E-Verify alone does not protect an employer from enforcement action and penalties.

Recent Improvements to E-Verify System

E-Verify has announced some needed improvements to its system to assist employers who, in doing so, will hopefully not attract M&C Branch attention:

Duplicate Case alert now notifies the employer if a social security number matches any other social security number entered for an existing case with the past 30 days.
The user’s name no longer auto-fills: it must now be completed each time to ensure accuracy, providing a prompt to validate or update email and phone number whenever the user’s password expires, which is every 90 days.
An employee whose information is entered in E-Verify resulting in a tentative nonconfirmation will receive email notification if they provide their email address on the Form I-9.
There is a new photo tool that will display any photo on record with E-Verify, enabling the user to compare it to the photo ID being presented.
E-Verify now verifies a driver’s license as to authenticity by matching the data entered by the user against participating state motor vehicle department records. Currently, North Carolina does not participate in this so-called RIDE system.
If E-Verify detects fraudulent use of a social security number, it prevents that number from being used more than once.
Notices generated by E-Verify are now available in 18 languages.
There are monthly webinars in Spanish for employers.
E-Verify screens for typographical errors and requires employers to correct them.
The Further Action Notice that is generated after a Tentative Nonconfirmation from the Department of Homeland Security includes instructions on how to correct immigration records after resolving the Tentative Nonconfirmation on E-Verify.
Updated Further Action Notices are also no longer pre-populated, but are easy to complete.
Customer support has been improved and includes an “E-Verify Listens” link that can be accessed by the E-Verify user while in the E-Verify system to assist with E-Verify completion.

While the system is not perfect, it is increasingly pervasive and increasingly “user friendly.” Further, employers have a strong incentive to use E-Verify properly to avoid settlements generated by enforcement actions that appear to be directly linked to E-Verify misuse, abuse and fraud.

ARTICLE BY

Jennifer G. Parser

Poyner Spruill LLP

Employee Codes of Conduct: Really? Requiring Someone To Use Information “Fairly And Lawfully” Can Be Illegal?

Companies have lots of very good reasons for adopting codes of conduct. These reasons include:

Ensuring compliance with applicable exchange listing rules (e.g., NYSE Rule 303A.10 and NASDAQ Rule 5610);
Minimizing the risk of securities law violations (e.g., Regulation FD and Rule 10b-5);
Protecting company assets (trade secrets as well as reputational assets);
Complying with contractual obligations requiring confidentiality; and
Complying with customer and employee privacy laws and regulations.

Thus, I was amazed to see a recent decision by a panel of the National Labor Relations Board finding the following language in a code of conduct to be unlawful:

Keep customer and employee information secure. Information must be used fairly, lawfully and only for the purpose for which it was obtained.

Fresh & Easy Neighborhood Market and United Food & Commercial Works Int’l Union, Cases 31-CA-077074 and 31-CA-080734 (July 31, 2014). The NLRB found that this language violated employees’ rights under Section 7 of the National Labor Relations Act which guarantees employees “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”. Reversing the administrative law judge, the panel found that employees would reasonably construe the above language “to prohibit discussion and disclosure of information about other employees, such as wages and terms and conditions of employment”. Really? This admonition was included at page 16 of a 20 page booklet primarily dedicated to a variety of ethical matters. In my view, it is arbitrary and capricious, if not just plain bizarre, to interpret this language as conveying any limitation on employees’ Section 7 rights.

ARTICLE BY

Keith Paul Bishop

Allen Matkins Leck Gamble Mallory & Natsis LLP

Difficult Situation Know-How: What To Do If an Employee Seems Suicidal

As people in the world, we face difficult situations all the time. If someone seems sad or depressed, we may want to help but not know how. When it’s your employee who is going through tough times, you may have legal concerns to worry about too. It’s good to be as prepared as possible beforehand. For example, let’s imagine that one of your employees seems depressed and starts making comments around the workplace about hurting him or herself.

A condition causing an employee to become suicidal may be covered under the Americans with Disabilities Act (“ADA”). In that case, it would be an unlawful discriminatory practice to take adverse employment actions based on the employee’s condition, and the employee may be entitled to a reasonable accommodation. If an employee makes a statement or does something that causes you to think that he or she may be suicidal, it is best to initially address the situation under the assumption that the employee has a condition covered under the ADA.

The first thing to do is to have a private conversation with the employee. Do not ask if the employee has a medical condition. Rather, ask the employee if there is anything you or the company can do to help. You can also ask if anything at work is causing or contributing to the employee’s problem and ask if the employee has any ideas for what could change at work to help. If the employee has reasonable requests for accommodation, then accommodate the employee. Later, follow up with the employee to ensure that the accommodation helped the problem. If not, it may be time to seek advice from your attorney to determine whether the employee is suffering from a condition covered by the ADA.

Be sure to document this entire process: keep written documentation of (1) the employee’s complaint(s), (2) that you asked how you could help, (3) that you did not ask whether the employee has any medical conditions, (4) that the employee suggested a certain accommodation, (5) that you provided the accommodation, and (6) that you followed up with the employee to see if the accommodation worked. Keep this documentation confidential.

Although you generally do not want to ask about whether the employee has a medical condition (such as depression), you can listen if the employee brings personal problems up and wishes to talk about them. It’s better not to offer advice, but you can offer hope that the employee will find a solution to his or her problems. You can also let the employee know that counseling is available, for instance, through an Employee Assistance Program, a crisis intervention or suicide prevention resource in your community, or a suicide-prevention hotline. Be careful not to pressure the employee or to imply that counseling is required or in any way a penalty. Again, keep your conversation confidential.

As a final note, the only time it may be alright to ask your employee whether they have a medical condition is when asking is job-related and consistent with business necessity. For example, this may be the case when the employee’s ability to perform essential job functions is impaired because of the condition or when the employee poses a direct threat. However, it is a good idea to consult your attorney before making such an inquiry as it can be fraught with legal perils.

ARTICLE BY

Kaitlin L. Hillenbrand

Steptoe & Johnson PLLC

Second Circuit Finds that Entry-Level Audit Associates at Accounting Firm are Exempt from Federal Overtime Requirements

In Pippins v. KPMG LLP, No. 13-889 (2d Cir. July 22, 2014), the Second Circuit Court of Appeals unanimously held that entry-level audit associates (“Plaintiffs”) at KPMG LLP qualify for the Fair Labor Standards Act’s (“FLSA”) “learned professionals” overtime exemption. The Second Circuit explained that, while the closely-supervised employees were “the most junior members” of the KPMG accountancy team and did not “make high-level decisions,” their work still required sufficient knowledge and judgment to qualify for the exemption.

The FLSA exempts employers from paying overtime to workers whose “primary duty” is “the performance of work requiring advanced knowledge in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction.” Such workers may qualify for the FLSA’s “learned professional” exemption provided that their work is: (i) “predominantly intellectual in character, and requires the consistent exercise of discretion and judgment”; (ii) in a “field of science or learning,” such as accounting; and (iii) of a type where “specialized academic training is a standard prerequisite for entrance into the profession.”

While the parties in Pippins agreed that accounting qualifies as a field of “science or learning” under the FLSA, the Second Circuit’s decision provides guidance for employers seeking to determine whether an employee’s position may meet the other two necessary elements for the learned professional overtime exemption to apply.

The “Discretion and Judgment” Prong

Noting the lack of guidance in the FLSA’s regulations expounding on the “discretion and judgment” prong, the Court held that, in the learned professionals context, employees need not “exercise management authority,” particularly where they work for firms that provide professional services to other businesses, such as KPMG. Rather, “what matters is whether [employees] exercise intellectual judgment within the domain of their particular expertise.” As applied to the field of accounting, the Court explained that accounting requires the consistent application of a “professional skepticism” throughout the process of collecting and analyzing data in order to ensure that audits expose potential financial irregularities or accounting improprieties.

The Plaintiffs maintained that they merely exercised simple “common sense,” made only “obvious” observations, followed strict templates and guidelines, and exclusively conducted routine work that was reviewed by supervisors before being assimilated into final audit reports.

However, the Court largely characterized Plaintiffs’ contentions as “confus[ing] being an entry-level member of a profession with not being a professional at all.” Indeed, the Court observed that the existence of guidelines and supervision is characteristic of professional firms and organizations and is simply intended to provide training and ensure quality work. The fact that junior professionals are subject to close supervision and must adhere to guidelines “does not relegate [them] to the role or status of non-professional staff.” The Court further explained that employees can “exercise professional judgment when their discretion in performing core duties is constrained by formal guidelines or when ultimate judgment is deferred to higher authorities.”

With respect to Plaintiffs, the Court found that their use of templates, the specific guidelines they were required to follow and the supervision of their work, did not deprive them of the need to exercise professional skepticism throughout the auditing process. In the Court’s view, the Plaintiffs were still required to exercise their specialized knowledge of accounting in order to determine when to deviate from such guidelines, or when to bring questions to superiors. “It is a hallmark of informed professional judgment,” the Second Circuit explained, “to understand when a problem can be dealt with by the professional herself, and when the issue needs to be brought to the attention of a senior colleague with greater experience, wisdom, or authority.”

The “Specialized Academic Training” Prong

With respect to the “specialized academic training” prong of the learned professional exemption, the Court held that “the requirement will usually be satisfied by a few years of relevant, specialized training,” and that “a bachelor’s degree in a germane field [often] suffices.” By contrast, the Second Circuit observed that generic, non-specialized educational requirements, such as a requirement that an employee possess a general bachelor’s degree in “any field,” are insufficient to establish the prerequisite. Finally, the Court explained that to determine whether the exemption applies, the educational prerequisites for entry into the particular profession must be customary. Because the audit associates were generally required to either be eligible or nearly eligible to become licensed Certified Public Accountants (“CPAs”) and the “vast majority” of them possessed accounting degrees and could take the CPA exam, the Court held that the Plaintiffs work required specialized educational instruction.

Plaintiffs contended, however, that they did not meet the specialized academic training requirement because their job duties didn’t actually call on them to employ the knowledge they acquired in the course of their studies. The Court acknowledged the potential merit of this argument in the case of a well-educated professional who is never expected to draw on her education in practice. However, the Court quickly dispatched the argument as it pertained to Plaintiffs, finding that the “average classics or biochemistry major” would not be able to adequately perform or fully understand the auditors’ work functions.

Conclusion

The Pippins decision offers greater clarity to employers in applying the “learned professional” exemption. The decision establishes that, even where low-level employees are closely supervised, regularly perform routine tasks, and follow established templates and guidelines, their work can still demand enough professional judgment to qualify them as learned professionals.

ARTICLE BY

Kevin J. Smith

Jonathan Sokolowski

Of:

Sheppard, Mullin, Richter & Hampton LLP

Inflexible Leave Policies under the ADA since Hwang

Since 2009, the EEOC has sued numerous employers who have terminated employeespursuant to an inflexible leave policy, a policy that provides a defined amount of leave and results in an employee’s termination once the employee exhausts that leave. The EEOC argues that such policies are unlawful because they do not allow for additional leave to be provided as a reasonable accommodation.

And then along came Hwang. Hwang had used all of the six months of leave under her employer’s inflexible leave policy. When her request for additional leave was denied, she sued, arguing that her employer needed to provide additional leave as a reasonable accommodation. The Tenth Circuit held that the very policy decried as blatantly unlawful by the EEOC was fair, lawful and actually protects employees with disabilities. Hwang v. Kansas State University (10th Cir. May 29, 2014). “After all,” the court said, “reasonable accommodations … are all about enabling employees to work, not to not work.” (Emphasis added). See our Hwang post here.

What has happened since Hwang? One month after Hwang, on June 30, 2014, according to an EEOC press release, Princeton Health Care System settled an inflexible leave policy lawsuit brought by the EEOC by paying $1.35 million. The System also agreed, among other things, not to adopt an inflexible leave policy, i.e., that type of policy found lawful in Hwang. PCHS had provided its employees up to 12 weeks of leave, the maximum amount provided by the FMLA, according to the EEOC. The EEOC’s press release also notes that employers have paid more than $34 million to resolve lawsuits the EEOC has brought concerning leave and attendance policies.

More recently, on July 10, 2014, the EEOC sued Dialysis Clinic, Inc. for terminating a nurse who had exhausted her employer’s inflexible leave policy (four months of leave). EEOC v. Dialysis Clinic, Inc. (E.D.CA). At the time of termination, according to the EEOC press release, the employee had been “cleared by her doctor to return to work without restrictions in less than two months.”

The apparent conflict between Hwang and the EEOC’s view that inflexible leave policies are indefensible exacerbates the challenge facing employers in search of the answer to the most vexing ADA question–how much job-protected leave must an employer provide under the ADA? More than three years have passed since the EEOC held a public hearing on leave as a reasonable accommodation under the ADA and suggested it might issue guidance on the topic. We posted previously that waiting for that guidance is like waiting for Beckett’s Godot, where those waiting come to the realization at the end of each day that he is not coming today, he might come tomorrow. Employers continue to wait. In the words of Beckett’s Estragon, “such is life.”

Article By:

Michael J. Soltis

Of:

Jackson Lewis P.C.

Donning & Doffing (Wage Disputes): Old Is New Again

Our Letter of the Law series is focused on current employment law developments, anddonning and doffing wage disputes are anything but “new” to the courts. The U.S. Supreme Court and Congress were dealing with donning and doffing work clothing and equipment in the 1940s. (Perhaps that is obvious given that nobody really says “donning” or “doffing” in recent years other than in this context.)

Donning and Doffing

But donning and doffing, and when employees must be paid for getting dressed for work, continues as an important and tricky wage/hour law issue. That and the 7th Circuit U.S. Court of Appeals’ “novel approach” to judicial curiosity in Mitchell v. JCG Industries, Inc. merits inclusion as this week’s letter D. The court in Mitchellrecently weighed in on the proper compensation for workers who are required to don and doff safety protective gear at work. Union workers in a poultry processing plant brought the suit, alleging violations of state and federal wage laws for the employer’s failure to pay wages for time spent donning and doffing protective work gear. Workers were required to put on jackets, aprons, gloves, hairnets, and other items at the start of every shift. In addition, they had to remove and put back on the gear at the start and end of lunch breaks. The principal issue was whether the employer had to compensate workers for the time spent changing in and out of gear.

Relying on Section 203(o) of the federal Fair Labor Standards Act, the court concluded that donning and doffing time is excluded from compensable time. In its opinion, the court noted that it took very little time to dress in the gear – and indeed noted that the court staff had done so. Additionally, the court noted that it would be overly burdensome to require employers to track such time for every employee.

Donning and doffing remains a tricky issue, a perfect example of what lawyers call “fact specific” cases. Compare DeKeyser v. Thyssenkrupp Waupaca, Inc., 735 F.3d 568 (7th Cir. 2013) (holding that summary judgment was improper to the employer in the case involving foundry employees who were required to shower and change after their shifts). Employers who require safety and other equipment or clothing must, decades after the law was first passed, continue to watch cases like Mitchell that might affect their decision making on what donning and doffing time must be paid.

Article By:

William A. Nolan

Of:

Barnes & Thornburg LLP

Hostile Work Environment Case Gets Additional Fourth Circuit Scrutiny

The Fourth Circuit Court of Appeals has agreed to an en banc rehearing (in which all judges on the court will hear the case) of Boyer-Liberto v. Fountainebleau Corp. after a three-judge panel of the court ruled in May 2014 that the factual allegations in the case did not rise to the level of a hostile work environment. The three-judge panel ruled that because a racial slur used inh the workplace was limited to two occasions arising from a single incident, the plaintiff had not been subjected to a hostile work environment based on her race.

Ms. Boyer-Liberto based her EEOC Charge of Discrimination and subsequent lawsuit against her former employer on two conversations she had with a coworker about an incident that occurred on September 14, 2010. During those conversations, which were on two consecutive days, the coworker twice directed a racial slur at Ms. Boyer-Liberto. One week after the incident, Ms. Boyer-Liberto was terminated from her job. The United States District Court for the District of Maryland granted summary judgment to the former employer, holding the offensive conduct was too isolated to support the plaintiff’s claims for discrimination and retaliation, and the three-judge panel of the Fourth Circuit affirmed that decision. Although the appeals court agreed the term used was “derogatory and highly offensive,” it held “a co-worker’s use of that term twice in a period of two days in discussions about a single incident was not, as a matter of law, so severe or pervasive as to change the terms and conditions of Liberto’s employment so as to be legally discriminatory.”

The Fourth Circuit has agreed to rehear the case, but it is not clear Ms. Boyer-Liberto will fare better on the rehearing although she argued in her petition for rehearing that the three-judge panel’s decision was inconsistent with other court rulings. That panel had specifically addressed the other cases Ms. Boyer-Liberto argued supported her claim and distinguished each as involving a greater number of incidents occurring over a longer time period or involving conduct having long-term, ongoing consequences.

As the panel noted in this case, a hostile work environment exists when “the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” The Fourth Circuit’s upcoming decision in this case bears watching to see if the court takes the opportunity to expand what has been a relatively narrow definition of hostile work environment. Regardless, employers should promptly investigate any claims of harassment or discrimination, document those investigations, and act quickly to address any harassment or discrimination uncovered in the investigations.

Article By:

Kevin M. Ceglowski

Of:

Poyner Spruill LLP

Tag: employment