MENU

Tag: retaliation

It’s Not What It Looks Like: Retaliation 101

July 31, 2019

With the inclusion of anti-retaliation provisions, Congress protected the rights granted in several employment related statues. An anti-retaliation provision prohibits any adverse employment action taken against an employee because that employee either opposed a practice prohibited by law or participated in the enforcement of a right provided by law. Some statutes provide both “opposition” and “participation” protections such as the Americans with Disabilities Act (ADA) 42 U.S.C. § 12203(a), 42 U.S.C § 1981, USERRA 38 USC § 4311(b), American Discrimination in Employment Act (ADEA), Federal Labor Standards Act (FLSA) and Title VII of the Civil Rights Act of 1964. Some statutes include only a “participation” protection such as the Family Medical Leave Act 29 U.S.C. § 2615(a)(1)-(2).

To prove retaliation, an employee can either present overt (also known as direct) evidence of the employer’s intent to retaliate. Or, the employee can provide circumstantial (also known as indirect) evidence, which can then be rebutted by the employer. In order to establish the basis or “prima facie” circumstances, an employee must prove the following: (1) that she engaged in statutorily protected conduct, (2) that she suffered an adverse employment action, and (3) that a causal connection exists between the two.

The ADEA, ADA, FMLA and Title VII require a “but for” causal connection not just the lesser “motivating factor”. For FMLA claims, the employee must first prove that he was eligible and entitled to FMLA leave before proving the remaining parts of the prima facie case.

Once the employee has established a prima facie case, the burden shifts to the employer to articulate a non-discriminatory reason for the adverse action. If the employer does so, the burden shifts back to the employee to demonstrate that the employer’s proffered reason was pretextual by presenting evidence sufficient to permit a reasonable factfinder to conclude that the reasons given by the employer were not the real reasons for the adverse employment decision.

An “adverse employment action” is any type of action that would have made a reasonable employee reluctant oppose the practice or participate in the enforcement of the law. Adverse actions take many forms. These include, but are not limited to, termination of employment, demotion, failure to hire or rehire, failure to promote, reduction or denial of benefits, etc. While valid business decisions will necessarily require some of these adverse actions, the employer must demonstrate that its reasons are indeed valid and not pretext for retaliation.

The devil is really in the details when it comes to pretext. Some of the most common tell-tale signs are: suspicious timing, inconsistent reasons, comments that call stated reason into question, conflicting evidence such as citing poor performance but having no record of discipline, among others.

Remedies available to an employee who is successful on a claim of retaliation would be entitled to extensive damages.

Does Title VII Include Discrimination Based on Sexual Orientation?

May 23, 2019

By Hauwa Adamu

In Bostock v Clayton County and Evans v Georgia Regional Hospital, the US Court of Appeals for the Eleventh Circuit held that reliance on Title VII of the Civil Rights Act of 1964 as prohibiting discrimination on the basis of sexual orientation failed to state a claim recognizable under law. 

Background

Evans v Georgia Regional Hospital

Jameka Evans worked at the Hospital as a Security Officer from August 2012 to October 11, 2013. During her time at the Hospital, she was discriminated against on the basis of her sex and targeted for termination for failing to carry herself in a “traditional womanly” manner. She experienced a hostile work environment. She was denied equal pay or work, harassed and physically assaulted.

Although she was a gay woman, she did not broadcast her sexuality. However, it was evident that she identified with the male gender, because of how she represented herself. Evans was punished because her status as a gay female did not comport with the Hospital’s gender stereotypes.

Evans lodged a complaint with the Human Resource department about some adverse treatment at work. Shortly thereafter she also complained that she was harassed and retaliated against because of her complaint. HR indicated that the Hospital had investigated Evans’ complaint, and had found no evidence that she had been singled out or targeted. Evans voluntarily resigned.

Bostock v Clayton County

Gerald Bostock, a gay man, began working for Clayton County, Georgia, as a child welfare service coordinator in 2003. During his 10-year tenure at Clayton County, Bostock received positive performance evaluations and numerous accolades. In 2013, Bostock began participating in a gay recreational softball league. 

During a meeting in which Bostock’s supervisor was present, at least one individual openly made disparaging remarks about Bostock’s sexual orientation and his participation in the softball league. Around the same time, Clayton County informed Bostock that it would be conducting an internal audit of the program funds he managed as part of his job.

Shortly after, Clayton County terminated Bostock allegedly for conduct unbecoming of its employees. Bostock filed a charge of discrimination with EEOC following which, he filed a pro se lawsuit against the County alleging discrimination based on sexual orientation, in violation of Title VII.

The Courts

In Evans, at the United States District Court for the Southern District of Georgia, Magistrate judge Smith issued a report and recommendation (R&R) dismissing Evans Complaint for failure to state a claim. The Judge concluded that while same-sex harassment can be actionable under Title VII, Title VII discrimination claims based upon the plaintiff’s sexual orientation or perceived sexual orientation is not. Judge Randall Hall concurred with Judge Smith’s R&R and dismissed Evan’s case. 

The Eleventh Circuit Court of Appeals rejected Evans request for an en banc rehearing, stating that Evans’ pro se Complaint failed to plead facts sufficient to create a plausible inference that she suffered discrimination. It stated: “Evans did not provide enough factual matter to plausibly suggest that her decision to present herself in a masculine manner led to the alleged adverse employment actions.” 

Evans then filed a petition for certiorari, requesting review from the SCOTUS. Regardless of the fact that several friends-of-the-court briefs were filed urging the SCOTUS to hear the case, including briefs from 79 businesses and organizations, the Court denied review of the case, leaving for another day resolution on whether Title VII prohibits discrimination based on sexual orientation.

In Bostock, the US District Court for the Northern District of Georgia and the Eleventh Circuit Court of Appeals dismissed the case in the same grounds.

After more than nine conferences during which the US Supreme Court could have acted on the petition for review, the SCOTUS has granted review in this case and two others that concern anti-LGBTQ employment discrimination. The cases will be heard in the Court’s 2019-2020 term to create a binding precedent and decide the issue for all courts.

My EEOC Charge is 1 in 90,000 – EEOC Fiscal Year 2018 Enforcement and Litigation Data

April 18, 2019

On April 10, 2019, the U.S. Equal Employment Opportunity Commission (EEOC) released detailed breakdowns of its work in fiscal year 2018 which ended on September 30, 2018. You can find details on its website but some remarkable statistics are as follows:

  • Received 76,418 charges of workplace discrimination

  • Resolved 90,558 charges of discrimination (including those filed in prior years)

  • Secured $505 million for victims in private sector, state and local government, and federal workplaces

  • Handled over 519,000 calls to its toll-free number, 34,600 emails and more than 200,000 inquiries in field offices

  • Filed 199 merits lawsuits alleging discrimination, including 117 individual suits and 45 suits involving multiple victims or discrimin­atory policies and 37 systemic discrimination cases

  • Achieved a successful outcome in 95.7 percent of all district court resolutions

Often, people inquire whether the #MeToo movement spurred more legal disputes. EEOC data demonstrates this was indeed the case. The agency also received 7,609 sexual harassment charges – a 13.6 percent increase from FY 2017 – and obtained $56.6 million in monetary benefits for victims of sexual harassment.

However, leading the pack as the most frequently alleged basis of discrimination with 51.6% of all charges filed, was “retaliation”, followed by “sex”, then “disability” then “race”, then “age”.

Multi-Million Dollar Awards for SEC Whistleblowers

April 6, 2018

The Securities and Exchange Commission announced on March 19, 2018, its highest-ever Dodd-Frank whistleblower awards:

– two whistleblowers shared a nearly $50 million award

– a single whistleblower received more than $33 million

These awards unseated the previous record high award of $30 million in 2014.

Monetary awards are available to whistleblowers who voluntarily provide the SEC with original, timely, credible and significant information that enables it to pursue and remedy serious violations that might otherwise go unnoticed. The information must result in a successful enforcement action.

The SEC has awarded more than $262 million to 53 whistleblowers since issuing its first award in 2012.  Whistleblower awards can range from 10 percent to 30 percent of the money collected when the monetary sanctions exceed $1 million. Also, whistleblowers can report jointly under the program and share an award.

By law, the SEC protects the confidentiality of whistleblowers and does not disclose information that might directly or indirectly reveal a whistleblower’s identity. Should a whistleblower’s identity become revealed through whatever means, the SEC and Dodd Frank include provisions to protect a whistleblowing employee from retaliation by an employer. Courts have enforced whistleblower protection against retaliation through the award of significant back pay, front pay and litigation costs and expenses.

Case Summary: Pregnancy Discrimination Act Protects Breastfeeding

September 27, 2017

In STEPHANIE HICKS v. CITY OF TUSCALOOSA, ALABAMA, the 11th Circuit Court held that the Pregnancy Discrimination Act (PDA) guarantees women the right to be free from discrimination in the workplace based on gender-specific physiological occurrences – including breastfeeding.

Stephanie Hicks brought this civil action against the Tuscaloosa Police Department under the Pregnancy Discrimination Act (PDA) and the Family and Medical Leave Act (FMLA). Ms. Hicks worked first as a patrol officer and then as an investigator on the narcotics task force. When she became pregnant she requested assignments that prevented late night work and weekend work, this was granted but only after being demoted only eight days after returning from FMLA leave. Hicks overheard multiple conversations in which officers of the police department used defamatory and sexist language about her. After the baby was born, Ms. Hicks requested accommodations that would have allowed her to breastfeed in the workplace and would have excused her from duties which required wearing a vest that according to her doctor could cause a breast disease that would inhibit breastfeeding. These accommodation requests were denied.  Ms. Hicks viewed these actions as a constructive discharge and filed suit.

Ms. Hicks prevailed at a jury trial wherein she was awarded $161,319.92 plus costs and attorney fees. The City appealed but the 11th Circuit Court, of which the State of Georgia is included, affirmed the decision.

The Court stated the important legal tests as follows:

  • The PDA amended Title VII to include discrimination “on the basis of pregnancy, childbirth, or related medical conditions.” – the ultimate question is “whether the evidence, when viewed as a whole, yields the reasonable inference that the employer engaged in the alleged discrimination.

  • Under the FMLA the ultimate questions are whether: “(1)Hicks availed herself of a protected right under the FMLA; (2) [s]he suffered an adverse employment decision; and (3) there is a causal connection between the protected activity and the adverse employment decision.

In application of these tests to the facts as summarized above, the Court concluded there was ample evidence that Hicks was both discriminated against on the basis of her pregnancy and that she was retaliated against for taking her FMLA leave. Furthermore, the Court found that the PDA covers discrimination against breastfeeding mothers and the City’s failure to accommodate Hicks’s requests, when it allowed accommodations to others similarly situated, constituted discriminatory constructive discharge, in violation of the PDA.

Quick Tips: Wrongful Termination

July 21, 2017

Due to the at-will employment doctrine in GA, an employer can fire an employee or independent contractor who is not hired on a fixed term contract for any reason (or for no reason) and without notice provided that the termination is as a result of discrimination on protected grounds or retaliation for exercising legislatively protected rights.

Newest on Whistleblower Protection

March 9, 2017


 

Plaintiffs seeking protection under the anti-retaliation provisions of the Georgia Whistleblowers Act (“GWA”) will applaud the Georgia Court of Appeals’ recent decision in West v City of Albany wherein it removed a fatal procedural obstacle. 

In this case, Ms. West claimed damages, attorney fees and litigation costs against the City for its decision to terminate her employment when she reported what was deemed to be financial irregularities in the City’s utility department. The City responded with a motion of dismiss the claim due to West’s failure to provide pre-litigation notice (known in latin as “ante litem notice”) six (6) months prior to filing her claim in Court and after the discovery of the adverse employment decision, as is required by the municipal ante litem notice statute. The Court reviewed the specific text of the GWA and concluded mainly that retaliation under the GWA is defined as an intentional act while the municipal ante litem notice statute specifically pertains to negligent acts; therefore, the six (6) month notice period does NOT apply to claims made pursuant to the GWA. 

The GWA is a powerful statute in that it creates a wrongful termination cause of action, even in the employment “at-will” state of Georgia, it waives sovereign immunity for municipalities such as the City in this case and, as the Court concluded: it establises a statute of limitations of up to three (3) years for a negligence claim that would otherwise provide only one (1) year. The Court would not have these powers truncated by ante litem requirements.

This decision, issued on March 6, 2017, highlights once again the importance of timely claims. If you have a legal issue, it probably has timeliness considerations in tow; therefore, speak to legal counsel sooner rather than later in order to preserve your rights!

S.O.