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January, 2007
Supreme Court Expands Scope of Retaliation ClaimsA U. S. Supreme Court opinion from the Court's last term expanded the scope of Title VII retaliation claims and may expose employers to liability for more actions, including even actions they take outside the workplace. While traditional Title VII discrimination cases have long required proof that the employee suffered an adverse employment action at work, in Burlington Northern & Santa Fe Railway Co. v. White, a unanimous court held that Title VII's retaliation provision was not similarly limited. Instead, the Court held that any action taken by an employer which would be materially adverse to a reasonable employee or applicant is actionable, if the employee contends that the action was taken in retaliation for opposing an unlawful employment practice. As examples of actions outside the workplace which would constitute actionable retaliation, the Court pointed to cases of an employer who filed false criminal charges against its employee, and of an employer's failure to investigate - contrary to its policy - a threat against an employee. Actions at the workplace continue to also support retaliation claims. However, the seemingly objective standard that only actions which a reasonable employee or applicant would have found materially adverse may be softened somewhat by the Court's comment that "context matters." Thus, the Court said that a change in an employee's schedule may be more adverse to a young mother with a school age child and that a supervisor's seemingly innocuous failure to invite an employee to lunch may become actionable if it involves a failure to invite an employee to a training lunch which would contribute significantly to the employee's professional development. The Court reasoned that this was the case because such a failure might well deter a reasonable employee from complaining of discrimination. In White, the plaintiff - a track laborer for the defendant railroad - claimed she had been retaliated against when she was requested to perform job duties which were part of her job duties description as a track laborer, but which she had not previously been required to do. While the Court noted that a reassignment of job duties was not automatically actionable, it reviewed evidence that White's "new" duties were dirtier, more arduous, and of lesser prestige than her initial duties. Thus, the Court found her reassignment actionable. The plaintiff also complained that she had been suspended without pay for 37 days, allegedly for insubordination, but that her suspension in fact was retaliatory. Following an internal investigation, which found she had not been insubordinate, she was reinstated with full back pay. The Court held that her unpaid suspension constituted compensable retaliation because many reasonable employees would find a month without a paycheck to be a serious hardship. In light of White, what can employees do to guard against retaliation suits? First, document everything. Second, be cognizant of the fact that even acts outside work may serve as the basis for employment retaliation discrimination complaints. Finally, for positions which have a number of job duties, insure that everyone in those positions performs those duties with some regularity. For more information on steps you can take to prevent such suits, or for guidance in defending against a charge of retaliation, please contact the lawyers at Elliott Lawson & Minor. R. Lucas Hobbs EEOC's New Cause: National Origin DiscriminationAn employer interviews a prospective receptionist. The applicant seems personable enough during her face-to-face interview. Her application reveals that she previously worked as a receptionist, both in the United States and in the Caribbean, and that she has administrative experience. Accordingly, she is offered the receptionist job without a "dry run" on the employer's telephone system, and without being asked to pronounce the names of co-workers or clients. After her interview, she is directed to a temporary (temp) staffing agency that handles payroll for the employer, at least until the employer decides to hire the temp into a full-time position. The temp reports to work. After her work begins, she finds it difficult to use the telephone/intercom system. She drops calls and puts callers on endless "hold." Moreover, she begins speaking so fast, and with such a thick accent, that callers have a difficult time understanding her. She has a difficult time pronouncing not only the names of co-workers and clients, but the name of the employer as well. Improper grammar usage surfaces, and this annoys several the employer's officers, who believe that incorrect grammar leaves a wrong impression with clients and others doing business with the employer. After a few days of concentrated training (of telling her how to pronounce names and use proper grammar), management decides that the receptionist will not succeed at the job. The employer tells the receptionist that she is being let go, and this is later confirmed to the temp agency. Believing that it can do nothing to change the result, the temp agency offers to reassign the employee, which she declines, contending that both the employer and the temp agency have discriminated against her on account of her race (black) and national origin/accent (Virgin Islands). She files a charge with the Equal Employment Opportunity Commission. After an investigation, the EEOC does more than issue a right-to-sue letter: it decides to sue the employer and the temp agency (as joint employers) for discrimination under Title VII of the Civil Rights Act. The EEOC has been more "politically correct" since December 2002, when it published its "Compliance Manual on National Origin Discrimination." According to the EEOC, "Congress recognized that whether an individual's ancestry is Mexican, Ukrainian, Filipino, Arab, American Indian, or any other nationality, he or she is entitled to the same employment opportunities as anyone else." At the same time, the EEOC provided lip service to "an employer's freedom of choice to make sound business decisions" affecting employment. The EEOC makes the following points on its web site: Speak English-Only Rule. A rule requiring employees to speak only English at all times on the job may violate Title VII, unless an employer shows it is necessary for conducting business. If an employer believes the English-only rule is critical for business purposes, employees have to be told when they must speak English and the consequences for violating the rule. Any negative employment decision based on breaking the English-only rule will be considered evidence of discrimination if the employer did not tell employees of the rule. Accent. An employer must show a legitimate nondiscriminatory reason for the denial of employment opportunity because of an individual's accent or manner of speaking. Investigations will focus on the qualifications of the person and whether his or her accent or manner of speaking had a detrimental effect on job performance. Requiring employees or applicants to be fluent in English may violate Title VII if the rule is adopted to exclude individuals of a particular national origin and is not related to job performance. Harassment. Harassment on the basis of national origin is a violation of Title VII. An ethnic slur or other verbal or physical conduct because of an individual's nationality constitute harassment if they create an intimidating, hostile or offensive working environment, unreasonably interfere with work performance or negatively affect an individual's employment opportunities. Employers have a responsibility to maintain a workplace free of national origin harassment. Employers may be responsible for any on-the-job harassment by their agents and supervisory employees, regardless of whether the acts were authorized or specifically forbidden by the employer. Under certain circumstances, an employer may be responsible for the acts of non-employees who harass their employees at work. Immigration-Related Practices Which May Be Discriminatory. The Immigration Reform and Control Act of 1986 (IRCA) requires employers to prove all employees hired after November 6, 1986, are legally authorized to work in the United States. IRCA also prohibits discrimination based on national origin or citizenship. An employer who singles out individuals of a particular national origin or individuals who appear to be foreign to provide employment verification may have violated both IRCA and Title VII. Employers who impose citizenship requirements or give preference to U.S. citizens in hiring or employment opportunities may have violated IRCA, unless these are legal or contractual requirements for particular jobs. Employers also may have violated Title VII if a requirement or preference has the purpose or effect of discriminating against individuals of a particular national origin. Mark M. Lawson National Labor Relations Board Issues New Guidance on Who is a "Supervisor" For Purposes of The National Labor Relations ActIn 2001, the United States Supreme Court issued its decision in National Labor Relations Board v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001). That case held that the National Labor Relations Board's (the "Board") previous test for determining supervisory status was inconsistent with the National Labor Relations Act (the "Act"). Since that decision, we have been awaiting a ruling from the Board in response. Finally, on September 29, 2006, the Board issued a trio of cases refining the analysis to be applied in assessing supervisory status. Whether an individual is classified as a supervisor is important, because supervisors cannot be part of a bargaining unit of employees, cannot be union members, and are not protected by the Act. Rather, supervisors are part of management who must act in the best interests of the employer. Section 2(11) of the Act defines "supervisor" as
Pursuant to this definition,
Kentucky River Community Care, Inc., 532 U.S. at 713. In Oakwood Healthcare, Inc., 348 NLRB No. 37 (2006), the lead case of the three released by the Board in September, the Board held that the permanent charge nurses at Oakwood Heritage Hospital in Michigan, but not the temporary charge nurses, were supervisors under the Act. In so doing, it clarified the terms "assign," "responsibly to direct," and "independent judgment," as those terms are used in the Section 2(11) definition of "supervisor." The Board construed "the term 'assign' to refer to the act of designating an employee to a place (such as a location, department, or wing), appointing an employee to a time (such as a shift or overtime period), or giving significant overall duties, i.e., tasks, to an employee." However, the Board stressed that "to 'assign' for purposes of Section 2(11) refers to the [putative supervisor's] designation of significant overall duties to an employee, not to the [putative supervisor's] ad hoc instruction that the employee perform a discrete task."
The Board stressed that the injection of the concept of accountability into the "responsibly to direct" analysis creates the "distinction between those employees whose interests, in directing other employees' tasks, align with management from those whose interests, in directing other employees, is simply the completion of a certain task." Finally, in clarifying the term "independent judgment," the Board noted that in determining its meaning one "must assess the degree of discretion exercised by the putative supervisor" (emphasis in original). For example,
Furthermore, in contrast to the Board's earlier rulings, and in response to the Supreme Court's Kentucky River case, the Board held that judgments exercised using professional or technical expertise can involve the use of independent judgment "if they involve on of the 12 supervisory function of Section 2(11)." One thing the Board did not do is depart from its precedent regarding how to treat individuals who only perform supervisory functions part of the time. The legal standard remains "whether the individual spends a regular and substantial portion of his/her work time performing supervisory functions" (emphasis added). The Board refused to adopt a strict numerical definition of substantiality, and noted that in the past it "has found supervisory status where the individuals have served in a supervisory role for at least 10-15 percent of their total work time." Many view the Board's Oakwood Healthcare, Inc. decision as a victory for employers and a defeat for unions. Union advocates claim the decision may strip employees of their ability to join a union, by reclassifying them as supervisors. Whether the decision will have a significant impact on workers remains unseen. Regardless, the Board's guidance on who is a "supervisor" for purposes of the Act will help employers and their counsel, during union organizing campaigns, more accurately classify their supervisors and bargaining unit employees. With that knowledge, the employer can more effectively counter union organizing efforts. Eric W. Reecher
Elliott Lawson & Minor, P.C.
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