Current Employment Law: May 2019 Updates and Cases

1. Rock the Employment Law Update!May 2019 Justin Pierce Pierce Coleman PLLC

3. Zetwick v. County of Yolo (9th Cir. November 2016) • A correctional officer alleged that the sheriff hugged her more than 100 times over the course of eight years and kissed her once on the cheek.  • The district court awarded summary judgment for the sheriff and the county.  It found that hugs and kisses on the cheek do not go beyond what is considered acceptable workplace behavior.  • The Ninth Circuit reversed. A jury must determine whether the hugs were so severe or pervasive as to create a hostile working environment. • January 2018 settlement conference. Case settled. So we’ll never know….

4. EEOC Update • Employees may not waive the right to file a charge of discrimination. • EEOC’s Phoenix field office has taken the position that an employee may not condition an employee’s severance on an agreement waive the right to recovery if the EEOC pursues a released claim on the employee’s behalf.

5. Lawsuit filed July 2017 • Allegations: • HR Director nibbled on her subordinate’s ear and whispered romantically, “I hope you’re not going to sue me.” • HR Director began oversharing about her swinger lifestyle.

6. February 2019Restaurant Settles EEOC Harassment/Retaliation Lawsuit for $700,000 Albuquerque Sports Bar Subjected Employees, Including Teenagers, to Sexual Misconduct And Punished Those Who Complained, Federal Agency Charged Ojos Locos Sports Cantina in Albuquerque will pay $700,000 and furnish other relief to settle a lawsuit charging sex-based harassment and retaliation filed by the EEOC, the federal agency announced today. According to the EEOC, at least 12 women at the Albuquerque Ojos Cantina were forced to endure pervasive, egregious and unwelcome conduct, including requests that some show more cleavage in their uniforms; comments about their breasts and buttocks; comments by male employees about their private parts; text requests for sex; and unwelcome touching of their bodies. All of this created a sexu­ally hostile work environ­ment for the victims. In at least one case, a managerial official texted employee Shyanne Hyde a photo of his penis. He was fired only after Hyde filed her complaint with the EEOC. (Phoenix EEOC in charge here)

7. Where are we headed? “Nice Boots,” “Nice Hair,” and One Touch =Sexual Harassment Under NYC Law Suri v. Grey Global Group, Inc.: The employee alleged a hostile work environment based on gender due to three incidents: (1) the supervisor/alleged harasser said the employee had nice hair; (2) had nice boots; and (3) once touched her knee and squeezed lightly for a few seconds when they sat next to each other in a meeting.  The employee admitted she did not say anything to the alleged harasser when he touched her leg and it never happened again.  However, in light of the “nice boots” and “nice hair” comments, she considered the touching a sexual advance.  After this incident, the employee claimed her work life was miserable until she was fired as part of a reduction in force.  Trial court dismissed, court of appeals reversed in March 2019 (3-2 decision with strong dissent). Obviously not controlling in AZ, but not hard to imagine 9th Circuit leaning this direction.

8. Chipotle Harassment Case • Sixteen year-old Chipotle restaurant worker was groomed and encouraged to participated in unprotected sex while at the business and other places. The teen quit her job because of the sexual abuse, a representative of the teen said. • The jury agreed with the plaintiff that Chipotle and its supervisors had knowledge of the sexual assaults occurring and did nothing about it. • Jury awarded over $8 million in compensatory and punitive damages, and attorneys’ fees. • Plaintiff’s Lawyer: "If you're gonna hire 16-year-olds, you damn sure better have good policy enforcement to make sure they're protected."

9. Another Chipotle Case Filed in March 2018

11. EEOC Lawsuit Settled (January 2019) • The store manager, Nick Kelly, texted the first applicant “Hi how badly do you need a job?”  and later asked “Would you sleep with the manager to get this job?”  Upon receiving a response, the manager texted back “Bang my brains out and the job is yours.”  Kelly texted another applicant and asked if she would have sex with him.  When the applicants complained to the company, it promptly investigated and fired the manager. • EEOC still sued and required an $80K settlement.

12. Quick Hypothetical • Employee comes to you and says, “Hey, did you see my co-worker Emily’s twitter feed?” • You respond, “What’s a twitter feed?” Just kidding…I think…. • You really say, “no, because I don’t follow employee twitter feeds.” • Employee says, “She posted #MeToo with no other information.”

13. Huffington Post Editor

14. I want my…$1? • “When a plaintiff recovers only nominal damages because of his failure to prove an essential element of his claim for monetary relief, the only reasonable fee is usually no fee at all.” But, “[p]reventing sexual harassment to enable broad participation of all genders in the workforce is an important public goal.” Also, “Regardless of the form of relief he [or she] actually obtains, a successful civil rights plaintiff often secures important social benefits that are not reflected in nominal or relatively small damages awards.” • Court awarded approximately $305,000 in attorneys’ fees to the plaintiff. • Jenkins v. The University of Minnesota et al., No. 13-CV-1548 (D. Minn. Oct. 13, 2017)

15. Can’t Make This Stuff Up • In late 2017 Gene Simmons showed up at a national news network to do a book-plugging interview, but instead went into a staff meeting uninvited. • “Hey chicks, sue me!” he shouted, and then pulled open his red velvet shirt to reveal his chest and belly, starting telling Michael Jackson pedophilia jokes, and then bopped two employees on the head with his book, making derisive comments about their comparative intelligence according to the sound their heads made when struck. • A person present reported, “It was pretty severe.” • Simmons banned for life from the network.

16. EEOC Settlement Announced January 2018 GEO GROUP TO PAY $550,000 TO SETTLE EEOC SEXUAL HARASSMENT AND RETALIATION LAWSUIT Class of Female Staffers Abused at Private Correctional Facilities in AZ The EEOC’s and ACRD’s allegations involved many forms of sexual harassment and retaliation occurring in the years between 2006 and 2012. The EEOC and ACRD charged that the harassment included sexual assault, a male manager grabbing and pinching the breasts and crotch of a female correctional officer, and a male employee forcing a female employee onto a desk, shoving her legs apart, and kissing her. The EEOC and ACRD also alleged a wide variety of verbal harassment, including male officers asking female officers for sex, a male officer calling a female officer the “B” word daily, and supervisors and officers making sexually explicit comments to female officers. The EEOC and ACRD said that these comments included offensive remarks such as “All I want to see of you is the top of your head bobbing up and down while you are on your knees,” and a supervisor frequently saying that women should be barefoot and pregnant. The EEOC and ACRD also charged that GEO retaliated against female employees when they complained of the harassment. The EEOC and ACRD charged that when women complained or sought help from GEO, the company would discipline the women, force them to quit, fire them, or place them in unsafe conditions in the prison.

17. 9th Circuit Guidance • District Court dismissed lawsuit; 9th Cir. REVERSED and remanded for trial • The 9th Circ. reversed because the cumulative effects the alleged misconduct has on a woman -- such as unwanted physical contact, a male employee making gestures while talking dirty, officers using profanity, and officers saying that her bra set off the metal detector -- were enough to go to trial.

18. Consent Decree • $550,000 for 16 women who had been dismissed from this case in 2012. • GEO also must send letters of regret to the women and provide employment references for them. • In addition, GEO will review its equal employment opportunity (EEO) policies, ensure that all complaints of sexual harassment and retaliation are immediately and thor­oughly investigated by a neutral employee, and ensure that the complainant is informed of the results of the investigation. GEO is also required to designate certain alleged harassers as ineligible for rehire, post notices of the consent decree in its Florence facilities, conduct anti-discrimination training, and include EEO compliance when evaluating its managers. • “Sexual harassment has no place in the work environment,” said EEOC Phoenix District Office Regional Attorney Mary Jo O’Neill. “This kind of misconduct is degrading and inexcusable and violates federal anti-discrimination laws. • “…Sexually harassed women can experience de­pres­sion, stress, anxiety, and post-traumatic stress disorder. We are proud of these women for standing up and helping to end this sexually hostile work environment.”

19. Hypothetical • Employee comes to HR to complain that he has been communicating with a female co-worker for many months via text with no issues. Recently, though, she has been signing off with emojis that the male employee feels are inappropriate (like the one on this slide) Can this rise to the level of sexual harassment?

20. Yeah, it’s a thing • You find out that employees are sending, or signing off with, avatars of themselves. • Avatar policy?

21. This is what I’m talking about • Edited down from a “PG-13” image to a “PG” image – you’re welcome.

22. Pregnancy Discrimination Former police officer had great reviews for years until she left for maternity leave in 2012 for the birth of her first child. When she returned three months later, she had to pump breast milk in the locker room of the police station. Law requires employers to provide women with a break to pump and “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public.” Department didn’t do that. She got calls on the radio from coworkers telling her to “wrap those boobs up” and get back to work. Written up for minor issues and demoted. She also had to wear a bulletproof vest that hurt her milk production and made it tough to pump, but department didn’t accommodate.

23. Pregnancy Discrimination After her requests for a transfer to a desk job were denied, she quit just two months after returning from leave. She filed suit in 2013, and a federal jury ruled in her favor last year, agreeing that the department violated the Pregnancy Discrimination Act. The city appealed the ruling, but the 11th U.S. Circuit Court of Appeals upheld the verdict in September 2017.

24. In another female police officer gender discrimination/harassment case…. • Female officer applies for promotion late, male officers upset about it. • Department decides not to promote. • Female officer quits, claiming discrimination and harassment. • Jury finds in favor of officer.

25. Peterson v. City of Surprise, __ Ariz. __, __ P.3d __ (Ariz. App. 2018) We hold that an employee who fails to exhaust administrative remedies for an alleged constructive discharge based on sex discrimination may not sue for retaliation under the Employment Protection Act (“EPA”), Arizona Revised Statutes (“A.R.S.”) section 23–1501(A)(3)(c) (2018)2018 WL 710447, at *1

26. Constructive Discharge Under AZ Law “[A]lthough constructive discharge may transform a resignation into a discharge, by itself, it does not afford an employee a remedy. Id. (stating elements of constructive-discharge claim that may be alleged “[i]n any action under the statutes of this state or under common law”) (emphasis added). To prevail on a claim for constructive discharge, an employee also must prove a common-law or statutory claim for wrongful termination.”

27. Gender (reverse?) Discrimination • Parker v Reema Consulting (4th cir) • February 2019 • Gender discrimination allegations by men that woman was only promoted because she slept her way to the top can actually give rise to gender discrimination claim by the woman (harassment).

28. Oh SNAP, Ethics Credit?  • February 2010 – Ethics complaint that lawyer told prosecutor she ‘doesn’t know how to act like a young lady.’ • Lawyer challenged the prosecutor in March 2018 when she told him she could not offer a plea deal in his client’s traffic case without seeing the client’s driving record. • Lawyer “became aggressive” then ultimately started to leave. But he returned and pointed a finger in the prosecutor’s face and said something to the effect of: “Little girl, don’t talk to me and move out of my face,” and/or “You need to back up, little girl, and know your place.” • Lawyer was previously reprimanded in October 2017 after telling a probation agent that she had “angry black woman’s syndrome” and “that’s why you don’t have a husband.”

29. Lawsuit filed in August 2018 For approximately 6 months, employee’s (sales associate at car dealership) general manager, a Caucasian male, called him a “good boy,” and called other African American males “boy” on multiple occasions. January 20, 2017 – Employee told his manager that his African American employees were uncomfortable with his use of the word “boy” to describe them. The manager asked for the names of the other employees, but the employee refused. Later that day, the general manager called the employee into his office and told him if anyone thinks his use of the word “boy” is racist, then “F— them all.” The next day, at a sales meeting, the manager stated that he had been using the word “boy” all his life and would not change: “This is probably not the right job” for employees who had a problem with it.  Another manager at the meeting then said that those employees should quit, and that “we don’t want you here. You should leave right now… Do me a favor and get the f— out of here now, please.”  The complaining employee told the group he had researched the word, and the consensus was it was a derogatory way of speaking to African Americans. Two days later the employee was handed a document entitled “Exit Interview” advising him that he was being terminated for his “attitude.”

31. Hively v. Ivy Tech Community College Kimberly Hively began working as a part-time adjunct professor for Ivy Tech in South Bend, Indiana in 2000. Her part-time employment contract was not renewed in 2014. During her 14 years with Ivy Tech, she applied for six full-time positions but claims never to have been offered an interview. Hively filed a federal lawsuit alleging sexual orientation discrimination under Title VII. The trial court dismissed her case. She appealed to the 7th Circuit. On April 4, 2017, the court ruled that “discrimination on the basis of sexual orientation is a form of discrimination.”

32. Gay Sky Dive Instructor • Altitude Express v. Zarda • Seven years ago sky-diving instructor told a woman he was gay when she seemed uncomfortable with the close physical contact. Her boyfriend was watching and a friend had been teasing her about being strapped in so tightly to another man. • After the woman’s boyfriend called the sky-diving school to complain about the encounter, instructor was fired. • Litigation for 7 years resulting most recently in 2nd Circuit oral argument on appeal where the federal government was on both sides (no pun intended) of the issue. • The rest of the story: Plaintiff died in 2014 on a wingsuit BASE jumping trip in Europe. The lawsuit is being pushed forward by his sister and Bill Moore, a close friend and former partner.

33. Circuit Split Continues • 2nd Circuit decides that sexual orientation is protected under Title VII. 10-3 en banc decision.

34. Employer Sued by EEOC for Failure to Hire Transgender Applicant Applicant applied for a services manager position at A&E Tire. Offered position pending a drug test and background check. The application and background screening paperwork asked for his sex and for any other names he used in the past. In completing the applic­ation and paperwork, he identified his assigned sex at birth and indicated he used another name typically associated with the female sex in the past. Less than an hour after A&E Tire extended the job offer, he received a call from a manager asking him if there was a mistake in his paperwork. He said there was not, A&E never got back to him about completing the screenings or a start date and ultimately hired someone else for the position. “Despite the significant legal and cultural progress we have made as a country in recent years re­specting the rights of transgender workers, a lot of work remains to be done in rooting out stereotypes and prejudice,” said the regional attorney for the EEOC’s Phoenix District Office, Mary O’Neill. Elizabeth Cadle, district director for the Phoenix District Office, said, “Transgender individuals want to work and give to the economy, sharing their skills and ideas just like anyone else,” They should not be deprived of the right and ability to do so just because of unfounded fears, misconcep­tions, and biases.”

35. On the heels of…. • 6th Cir decision on March 7, 2018 holding that Title VII protects gender identity/transgender • Funeral home fired transgender worker after worker told owner that he was transitioning to female and would begin dressing as a female to work. Lawsuit filed by EEOC dismissed on RFRA grounds, and 6th Cir. reversed.

36. HERE IT COMES! April 22, 2019 – SCOTUS grants certiorari in three cases on the question of whether gay and transgender workers are protected under Title VII. Each case involves the question of whether Title VII’s protection against discrimination based on “sex” extends to employees who claim discrimination based on their sexual orientation or gender identity/transgender status: Altitude Express v. Zarda and Bostock v. Clayton County, Georgia (sexual orientation) R.G. & G.R. Funeral Homes Inc. v. EEOC (gender identity/transgender)

37. EEOC 2017 Data The agency received 6,696 sexual harassment charges and obtained $46.3 million in monetary benefits for victims of sexual harassment. Specifically, the charge numbers show the following breakdowns by bases alleged, in descending order: Retaliation: 41,097 (48.8 percent of all charges filed) Race: 28,528 (33.9 percent) Disability: 26,838 (31.9 percent) Sex: 25,605 (30.4 percent) Age: 18,376 (21.8 percent) National Origin: 8,299 (9.8 percent) Religion: 3,436 (4.1 percent) Color: 3,240 (3.8 percent) Equal Pay Act: 996 (1.2 percent) Genetic Information: 206 (.2 percent)

38. EEOC 2018 Data • Retaliation: 39,469 (51.6 percent of all charges filed) • Sex: 24,655 (32.3 percent) • Disability: 24,605 (32.2 percent) • Race: 24,600 (32.2 percent) • Age: 16,911 (22.1 percent) • National Origin: 7,106 (9.3 percent) • Color: 3,166 (4.1 percent) • Religion: 2,859 (3.7 percent) • Equal Pay Act: 1,066 (1.4 percent) • Genetic Information: 220 (.3 percent) • 7,609 sexual harassment charges - a 13.6 percent increase from FY 2017

39. ADA Update

40. AMERICAN AIRLINES AND ENVOY AIR TO PAY $9.8 MILLION TO SETTLE EEOC DISABILITY SUIT  From the EEOC’s Press Release: American Airlines and Envoy Air will pay $9.8 million in stock, which is worth over $14 million if cashed in today, and provide other signifi­cant relief to settle a nation­wide class disabil­ity discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC) in Phoenix. The EEOC’s suit said the airlines unlawfully denied reasonable accommodations to hundreds of employees.  The EEOC alleged that American and Envoy violated federal law by requiring their employees to have no restrictions before they could return to work following a medical leave. Under this policy, if an employee had restrictions, American and Envoy refused to allow them to return to work and failed to determine if there were reasonable accommodations that would allow the employee to return to work with restrictions. If employees with disabilities are not able to do their current job, even with a reasonable accommo­dation, employers are obligated to look for a reassignment to another position for those emp­loyees. Elizabeth Cadle, district director for the Phoenix office, added, “This settlement demon­strates the need for employers to have good ADA policies. That means policies which consider employers’ obligations to provide reassignment without competition as a reasonable accommoda­tion for employees with disabilities who become unable to do their current job even with accom­mo­dations.”

41. Fido Comes to Work • In March 2017 the EEOC filed a lawsuit against a freight company on behalf of a truck driver trainee who is a veteran. According to the EEOC, the employer violated the ADA by refusing to hire the trainee because he uses an emotional support dog to manage post-traumatic stress disorder. • Last December the EEOC issued a publication titled “Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights”, which brought more attention to accommodating mental health issues in the workplace.  • Treat an employee’s request to use a service animal just like any other accommodation request under the ADA.

42. Equal Access to Leave Employees with disabilities must be provided with access to leave on the same basis as all other similarly-situated employees. Many employers offer leave -- paid and unpaid -- as an employee benefit. Some employers provide a certain number of paid leave days for employees to use as they wish. Others provide a certain number of paid leave days designated as annual leave, sick leave, or "personal days." If an employer receives a request for leave for reasons related to a disability and the leave falls within the employer's existing leave policy, it should treat the employee requesting the leave the same as an employee who requests leave for reasons unrelated to a disability.

43. Leave as Reasonable Accommodation

44. Oh, but wait! • 7th Circuit in September and October 2017 says ADA is a discrimination law, not a leave law.

45. EEOC is Serious About This Stuff On July 12, 2017, the EEOC filed suit alleging that an employer violated the Americans with Disabilities Act (ADA) by refusing a request to telecommute from an employee with a sensitivity to workplace smells. Aggravated her asthma and COPD. Supervisor allegedly ignored the requests to telecommute, even though the employee worked as a case manager for patients requiring home services and could have performed her essential duties from home. EEOC asserts that the rejection of the request to telecommute, without first conducting an individualized assessment of the requested accommodation, violated the ADA.

46. Failure to Accommodate The plaintiff, Andrea Mosby-Meacham, an in-house lawyer for Memphis Light Gas & Water (MLGW), requested to work from home for ten weeks after she was placed on modified bed rest during pregnancy. MLGW’s ADA Committee conducted a telephonic meeting with Mosby-Meacham, but denied her request to telecommute, determining physical presence was an essential function of her job. Mosby-Meacham filed a lawsuit alleging failure to accommodate, pregnancy discrimination, and retaliation. The jury returned a verdict for Mosby-Meacham on the failure to accommodate claim and awarded her $92,000 in compensatory damages.

47. Telecommuting Can Be a Reasonable Accommodation • Several MLGW employees and outside counsel testified that Mosby-Meacham could have effectively performed her job from home. The evidence revealed Mosby-Meacham had never participated in a trial or taken a deposition, and that although those functions were included in the job description, the job description was based on a 20-year old questionnaire. • The Sixth Circuit upheld the jury verdict and distinguished the facts from prior decisions, which had held attendance was an essential function. Mosby-Meacham had performed her duties remotely in the past, her job was not tied to her office desk, and the requested accommodation was for a limited duration. The court held its previous opinions left open the possibility of telecommuting as a reasonable accommodation – particularly for a finite period of time.

48. More Failure to Accommodate A California jury, finding that her former employer had violated the ADA, awarded a former drug addiction counselor more than $4.5 million in damages. Hill v. Asian American Drug Abuse Program, Inc., No. BC582516 (Cal. Sup. Ct. Jan. 19, 2018). Della Hill, while out on protected medical leave after breaking her arm, was diagnosed with major depressive disorder. Her medical leave was set to expire on March 23, 2015, but prior to its expiration, she submitted additional medical information to her employer on her diagnosis and requested additional leave. Instead of granting the request, her employer, the Asian American Drug Abuse Program (AADAP), terminated her on March 31, 2015, for failing to return from medical leave. After determining that AADAP had failed to reasonably accommodate her disability, the jury awarded Hill $1.9 million in damages (approximately $550,000 in economic damages, and $1,350,000 in non-economic damages). The jury also determined that AADAP had acted with malice, oppression, and/or fraud, which allowed the jury to award another $2.6 million in punitive damages. No evidence in the record that AADAP did a thing to try and accommodate.  No interactive process.

49. Pre-Offer Medical Questions Another EEOC Lawsuit Filed in the Last Six Months: Phoenix staffing agency forced applicants to fill out an invasive medical questionnaire and answer medical questions before job offers and denied job opportunities to applicants based on their answers.  Questionnaire inquired into, among other things, the applicant’s use of medications, history of illnesses, and whether the applicant has or had any current or previous injuries to various parts of the body. Elizabeth Cadle, the EEOC's Phoenix District Office director: "The EEOC will continue to fight to protect applicants from being exposed to illegal medical questioning."

50. Recent Press Release ALL STAR PRIORITY STAFFING TO PAY $30,000 TO SETTLE EEOC DISABILITY SUIT Phoenix Staffing Agency’s Pre-Offer Policies Discriminated Against Employees, Federal Agency Charges PHOENIX — All Star Priority Staffing, LLC, a Phoenix-based staffing agency, agreed to pay $30,000 and provide other significant relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today. “Millions of workers rely on staffing agencies for employment in the United States,” said EEOC Phoenix District Office Regional Attorney Mary Jo O’Neill. “The EEOC is committed to ensuring that temporary workers and applicants to staffing agencies receive the full protections of the ADA and other civil rights laws. We are pleased that All Star worked cooperatively with us to resolve this case and to ensure their application process does not include pre-offer medical inquires.”