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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.
Meet Brenda Smelter. She is a black woman that was hired by Southern Home Care Services, Inc. d/b/a/ ResCare Homecare in July 2013 as a Customer Service Supervisor. She was the only black person who worked in her office, she replaced a white employee who was away from the office on maternity leave. Brenda struggled with performing her job but most distressing at work was that she often overheard co-workers making racist comments about black people; sometimes these comments were made directly to her face and in the presence of others, including members of management.
The severity of these racist comments peaked on the last day of her employment when a co-worker called her a “dumb black nigger” during an argument. According to Smelter, she was fired for reporting this epithet, along with her co-workers’ other racist comments, to her direct supervisor. The reason Southern Care provided for the termination was “poor fit” citing performance concerns and chaos. After her termination, she was replaced by a white employee, in addition to the return of her predecessor, also white, from maternity leave.
Brenda sued Southern Home under Title VII and 42 U.S.C. § 1981, asserting claims for discriminatory termination, hostile work environment, and retaliation. Smelter contends that Southern Home (1) discriminated against her by permitting a hostile work environment to exist at the office, (2) discriminated against her by terminating her because of her race, and (3) retaliated against her for reporting her co-workers’ racist comments.
After the case was dismissed by the District Court, the 11th Circuit Court of Appeals agreed with the district court that Smelter’s discriminatory termination and retaliation claims fail because she provided insufficient evidence of pretext in response to Southern Home’s legitimate, nondiscriminatory reasons for terminating her. But the 11th Circuit Court disagreed that, as a matter of law, the harassment Smelter suffered was not severe or pervasive and Southern Home lacked notice of that harassment.
Thus, in October 2018, the 11th Circuit Court gave us a recent window into the elements required to establish a racially based hostile work environment claim.
To prove a hostile work environment claim, an employee must show that “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.” When the employee’s harassment claim is based on her race, she must prove five elements: (1) she belongs to a protected class, (2) she was subjected to unwelcome harassment, (3) the harassment was based on her race, (4) the harassment was sufficiently severe or pervasive to alter the terms of her employment and create a discriminatorily abusive working environment, and (5) the employer is responsible for the environment.
Typically at issue, as was the case here, is the “severe and pervasive” threshold. To establish that harassment was sufficiently severe or pervasive to alter the terms or conditions of her employment, an employee must prove that her work environment was both subjectively and objectively hostile. In other words, the employee must first establish that she “subjectively perceive[d] the environment to be abusive.” Then she also must satisfy the objective component by showing that her work environment was one “that a reasonable person would find hostile or abusive.”
Beginning with Smelter’s subjective perception of her work environment. Smelter repeatedly testified that enduring her co-workers’ racist comments was stressful and hurtful. She also explained that it felt like the harassment “never stopp[ed],” as though her co-workers were pushing her to “see how much she [could] take” in the hopes that she would “just quit and leave.” The Court found this testimony sufficient to demonstrate subjective belief in the severity and pervasiveness of the conduct.
The employer objected that Smelter’s failure to report the incidents indicate a lack of subjective believe in the harassment. Precedent recognizes, however, that an employee’s failure to report harassment is not dispositive of whether the employee perceived the environment created by the harassment as hostile or abusive.
Regarding objectivity, the facts sufficient to meet this threshold were:
1. Pervasiveness, also known as Frequency
Smelter endured racist remarks by her co-workers nearly every day that she worked in that office. There were at least 8 racist comments in 2 months that Smelter could recall with specificity.
2. Severity
Brenda endured the following comments: black men were “lazy” and “the scum of the earth; “black women[] ha[d] babies on welfare,” President Barack Obama’s “big ears” made him “look[] like a monkey,” and she did not know that black people could be buried on Sundays; Smelter’s hair made her look like a “mixed monkey” from the movie Planet of the Apes; an occasion when black people were exiting a bus at a Wal-Mart store was described as looking like they were “chained together.”; and a desire expressed to “send them all back . . . to Africa.”. A co-worker “jumped up . . in a rage” and said “get out of my office . . . you dumb black nigger.” in doing so she “hit the desk” like she was about “to charge at” Smelter.
The Court held that these comments were directed at Brenda to humiliate her and were egregious even just once because it was preceded by two months of related abuse, thus, they were severe.
3. “Physically threatening or humiliating”
See point number 2; the comments were severely humiliating. The Court stated that “physical threat” is not always a dispositive requirement.
4. Altered job performance is optional in light of totality of other circumstances
Indeed, “[t]he Supreme Court has cautioned that harassment need not be . . . so extreme that it produces tangible effects on job performance in order to be actionable.”
5. Because the comments were made by co-workers, management needed to be aware or made aware of the harassing conduct and must also have failed to take prompt remedial action
Here, there was a concession that no report was made until the day of termination but there might have been actual notice because Smelter testified that everyone thought the slurs were funny and that others, including management, overheard the slurs. Smelter also testified that members of management overheard these comments and were amused by them, but she never made a formal report until the day of her termination.
Take away for employees making this claim: this case demonstrates the type of hostility that makes the threshold for a hostile work environment claim.
Take away for employers defending such a claim: the company must take prompt remedial action if any members of management have actual or constructive notice of this type of hostility.
John Doe is a manager who attempts to be efficient at his job. He understands that personnel management requires a certain diplomacy and finesse. But when he speaks to in-house counsel Jane Smith about a recent EEOC charge filed against their company she is quick to give him several rigid rules to avoid the perilous pitfalls of performance appraisals:
If it’s bad, say so
A performance appraisal is immediately evidence in an employment law case. Thus, whenever, and I mean each and every time that a performance appraisal is being conducted, managers must give their honest assessment. If performance is bad, then managers must make that clear in writing during the appraisal. This writing should state the standard to be attained, should delineate how the employee has failed to meet the requisite standard and lastly, what the employee must do to cure the error.
For instance, during unemployment insurance benefit appeals before the Georgia Department of Labor, where misconduct is alleged, the evaluations if done properly could demonstrate that the employee was aware of the standard to be met, did not meet the standard, was given an opportunity to cure the deficiency and did not do so.
2. Don’t ignore a litigation hold notice
A litigation hold is a written directive advising custodians of certain documents and electronically-stored information (“ESI”) to preserve potentially relevant evidence in anticipation of future litigation. Performance appraisals are frequently relevant in wrongful termination cases, especially those cases in which the employer alleges poor performance as the non-discriminatory or non-retaliatory reason for termination of employment. These evaluations are thus frequently the subject of discovery requests. Medical records are another class of usually relevant documents especially in a disability discrimination case. Several types of documents fit the bill depending on the issues raised in the suit.
Once an employer receives notice of a potential legal claim, it does have a duty to preserve the relevant documents, failing to do so could trigger an adverse inference that the documents would have favored the employee. Also, sanctions could be levied against the employer and its legal counsel.
3. Educate managers to apply objective standards uniformly
Performance appraisals are generally governed by employer policies; there are no federal or state laws determining how or when a performance appraisal must be conducted. However, there are laws implicated by the manner in which employers carry out performance appraisals. For instance, Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, national origin, sex, etc., the Age Discrimination in Employment Act prohibits discrimination on the basis of age, the Americans with Disabilities Act prohibits discrimination on the basis of a real or perceived disability. Each of these laws could be violated if the employer scores the employee negatively because of one or more of these protected categories.
All told, employers need good counsel to create performance appraisal templates, to educate supervisors and managers on its use and to maintain compliance in the event of a dispute.
How do I complete a background check?
There are several ways for employers to gather information on the background of an applicant for employment. An employer can embark upon the task solo, with the prevalence of online data contact information for alleged previous employers, social media posts, previous and pending civil actions, are all available online. Most frequently however due to the convenience, accuracy and time constraints, employers hire third-party vendors to conduct background checks on applicants.
Background checks reveal important information. However, there are legal limitations on employers obtaining and using this type of information. When employers hire a third party to conduct a background check, or obtain reports from outside agencies, such reports are subject to the federal Fair Credit Reporting Act (FCRA) and state laws. Also, in Georgia, employers must comply with laws concerning criminal background checks and driver’s record information.
The Fair Credit and Reporting Act (FCRA) sets the standards for employment screening for non-public information. Prior to doing a background or credit check, employers must request and receive written permission from the applicant to complete a background check. In the event the employer elects not hire the applicant, the employer is required to provide the applicant with a copy of the report(s) that were utilized in the employer’s decision not to offer employment.
Title VII of the Civil Rights Act prohibits discrimination in employment on the basis of several grounds, including race. Thus, employers must request background checks of all applicants equally and employers are prohibited from utilizing the information to discriminate against applicants.
Under Georgia law, private individuals and businesses may request criminal history records by submitting fingerprints of the person whose records are requested or a signed consent form with the person’s full name, address, Social Security number, and date of birth to the Georgia Crime Information Center (GCIC). Except as specifically authorized by law for certain offenses, the GCIC will not release records of arrest or charges that did not result in a conviction, or sentences for certain first offender crimes, or for crimes where the individual was later exonerated, or the charges were discharged without court adjudication of guilt O.C.G.A. 35-3-34 (2010).
What is a background check and why do I need one?
A background check is a review of an employment candidate’s social, criminal, and financial records. Background checks have become standard practice in the employment setting; in fact, up to 70 percent of employers require employees to undergo background checks prior to hiring.
The reasons employers utilize background checks are numerous and varied. Utilizing background checks allows the employer to find the best candidate by looking into the applicant’s criminal background, education, employment history, civil records, references, among other sources of information. A pre-employment background check has become a matter of necessity as some applicants will “lie, steal and cheat” to impress a prospective employer. For example, an employer may want to ensure that the applicant is telling the truth about their qualifications: to determine if the applicant graduated from college, or worked for a previous employer performing the duties as stated on the application. Background checks can also protect the employer from liability, both civil and criminal. For instance, an employer would want to ensure that the applicant has no record of misconduct pertinent to the business as this could be grounds for a negligent hiring Georgia state law tort claim. Or, the employer may want to verify the age of the applicant to be complaint with child labor laws. An employer must also consider immigration laws and seek to verify the immigration status of its employee.
All in all, the benefits of a comprehensive employment background include:
· increased applicant and new hire quality,
· reduced workplace violence,
· reduced negligent hiring liability,
· reduced losses from employee dishonesty,
· making the right hire the first time, and
· avoiding negative publicity, among others.
Most importantly, employers have a moral and legal obligation to provide a safe work environment pursuant to state and federal laws like the Occupational Safety and Health Act (OSHA). The bottom line is that pre-employment background checks help an organization be more successful; that means greater profits to for-profit organizations and greater impact for non-profits.
Employer requirements for the Family Medical Leave Act (FMLA) may seem straightforward, but managing them, including keeping up with current government regulations and handling all the necessary administration is challenging and overwhelming. The FMLA is filled with legal implications that companies must completely understand. The paperwork alone can be overwhelming for the human resources and benefits departments. Moreover, federal and state laws often overlap, which further complicates the administration of the FMLA. A company that fails to comply with the FMLA subjects itself to costly litigation. Furthermore, there have been cases in which a direct supervisor was personally sued by an employee for failing to comply with FMLA laws.
Therefore, it is important to have the knowledge and resources to monitor and understand the applicable laws to ensure that the company is in compliance with the FMLA. The following ten best practices will help your company ensure compliance with the FMLA.
1. Stay updated on the laws.If a company operates in more than one state, the company must ensure that in addition to being in compliance with the federal version of the FMLA, the company must also be in compliance with the state law version of the FMLA.
2. Establish FMLA procedures and consistently apply them.One of the biggest mistakes companies make is delegate several people within the company to administer the company’s family medical leave practices. Therefore, ongoing training and having specific procedures in place for how your company will manage the FMLA can help alleviate these issues.
3. Require medical certification from the health care provider to validate that the leave is necessary. Under the FMLA laws, employers have the right to require that the employee secure a medical certification. Employers must allow employees at least 15 days to obtain the proper medical certification and provide it to the employer. Without a completed medical certificate, FMLA requested leave can be denied.
4. Document everything.Every interaction, including every telephone call with the employee who is out on leave should be documented. This practice reduces confusion as to policies and sets forth what information has been shared with the employee.
5. Educate management.The company supervisors must understand their role when one of their employees’ requests leave under the FMLA. Companies should also consider “just in time knowledge.” This just in time practice requires that supervisors immediately notify the benefits manager when an employee requests FMLA.
6. Consider allowing supervisors to directly communicate with employees while they are on leave.Allowing a supervisor to reach out to an employee who is out on FMLA has huge benefits. For example, it builds morale as this practice demonstrates that the manger cares about the well being of the employee and their situation. Consequently, this sets up the employee to feel good about returning to work.
7. Gather the stakeholders. The company is responsible for following FMLA laws. Although the responsibility primarily falls within the duties of the human resources and legal teams, payroll, finance and benefits also have an important role and all of these teams should meet periodically to assess how the program is being administered.
8. Review your company’s leave policies regularly. At least once per year, the company needs to review their policies and the relevant paperwork associated with the administration of the FMLA.
9. Maintain confidentiality. It is illegal for employers to share any information about the employee’s medical condition.
10. Consider outsourcing. An outside firm can assist your company determine employee eligibility and to review the associated paperwork.
The United States of America is one of the few wealthy countries that do not require an employer to offer and pay a departing employee some sort of a severance payment. Were there such a federal requirement, it would most likely be couched in the Fair Labor Standards Act (FLSA) which governs wage and hour issues in all workplaces engaged in interstate commerce. But the FLSA includes no rules that entitle an employee to severance pay.
Instead, severance pay is a contractual arrangement. Thus, as long as no discrimination is made based on prohibited grounds, who gets severance pay and how it is paid is generally at the discretion of the parties.
When a company has a formal severance pay policy, it will include the purpose of the severance plan and conditions for paying severance. Eligibility for and the amount of pay and/or benefits will be included therein and is primarily calculated by the length of employment or service tenure. Other factors are frequently considered such as:
Reason for termination of employment (often termination for cause such as poor performance or misconduct will disentitle an employee from severance pay),
Re-employment of the employee by the same employer or its affiliates (this frequently triggers a claw back or termination of severance benefits), among other factors
Class of workers, for example, salaried workers may receive severance pay, but hourly employees may not. Executives are almost always offered some form of severance pay.
Company succession: severance agreement may stipulate that in the event the company is sold, acquired, mergers, etc. severance will not be paid unless an employee is involuntarily terminated.
Severance pay can be paid in a lump sum, or via regular pay periods for a specified duration, this is known as salary continuation. Depending on the circumstances, one or the other payment method might be preferred, for instance, if the separation arose from hostile circumstances it would be ideal to offer a lump sum and part ways with the departing employee immediately or if there are concerns about funding a large severance payment then salary continuation would be ideal. The payment method may affect the employee’s unemployment benefits and have tax liability consequences, so this is an important consideration for both parties.
An employment attorney can assist an employee in negotiating a severance package, especially if termination of employment was involuntary due to a group reduction in force. Even if the employee was wrongfully terminated, an attorney can advise on potential grounds for a wrongful termination lawsuit before the right to sue is waived or released in a severance agreement.
Due to the consequences of accepting a severance agreement and the potential benefits of having entered into a severance agreement, it is advisable to have an experienced employment attorney review the policy prior to executing any documents.
