September 28, 2018
Author: Timothy F. McCormack
Organization: Ballard Spahr LLP
TITLE VII OF THE CIVIL RIGHTS ACT OF 1964
Discrimination, Harassment & Retaliation
Federal and state laws make it illegal for employers to discriminate against employees or applicants for employment because of race, color, religion, sex, national origin, age, handicap or disability, pregnancy and veteran status. These are known as “protected classes.” Maryland also affords protection sexual orientation and transgendered status. These laws are wide-reaching and affect almost every aspect of the employment relationship, from applying for a job to on-the-job conduct, work assignments, discipline, and interactions between employees and between employees and managers.
Why Take This Seriously?
Preventing discrimination, harassment and retaliation against employees is obviously the right thing to do to create the type of work environment that we all want. Not doing so can have significant economic consequences. Some recent examples:
• A jury awarded a gay Los Angeles police officer more than $ 1 million in a retaliation case.
• A state court jury hit UBS with a verdict of $10.6 million where a female employee claimed that a stockbroker sexually harassed her, the company did not properly respond to her complaints and eventually fired her in retaliation for her complaints.
• A Georgia county settled a race bias lawsuit brought by four white managers for $1.3 million.
• $1 Million judgment in sex and race harassment suit against Whirlpool affirmed by a court based on 2 months of abuse against black female worker by white male coworker resulting in physical assault and serious permanent mental injuries preventing her from working again.
• International Profit Associates agreed to pay $8 Million for sexual harassment of 82 women including a pattern and practice of sexual assaults and propositions, inappropriate touching and crude sexual comments both fostered by and participated in by highest ranking officers.
• A jury awarded over $1.5 Million in a sexual harassment and retaliation case against Mid-American Specialties.
• Supervalu/Jewel-Osco paid $3.2 Million and agreed to a number of policy changes under a federal consent decree in disability bias suit alleging discrimination in practice of terminating employees with disabilities at the end of medical leaves of absence rather than bringing them back to work with reasonable accommodation.
• Paul’s Big M was hit with a $1.3 million jury verdict in a sexual harassment case brought by female employees, many teens still in high school, found to have been subjected to hostile work environment by the general manager for more than 10 years: he suggested sexual threesome with teenage cashiers mother, he stuck his tongue in teenage cashier’s mouth, he grabbed and touched breasts and buttocks, he made sexual propositions and lewd gestures.
• A state jury awarded $5.8 million to a white plaintiff in a national origin discrimination lawsuit.
• ABM Industries settled a sexual harassment suit by 21 Hispanic female janitorial workers for $5.8 Million in a suit alleging unwelcome touching, explicit sexual comments, exposure, requests for sex, groping, and at least one rape.
• Republic Services paid nearly $3 Million for firing 21 workers who were over 40 because of age.
• Elmer W. Davis paid $1 Million to settle a race discrimination lawsuit in August 2010 alleging pattern of race discrimination against black employees including: racial slurs by white foremen (“niggers,” “lazy niggers,” “sambo,” “slave,” “monkey,” “all niggers should get on a boat and go back to Africa,”); nooses; offensive graffiti (“dirty nigger,” “KKK,” swastikas); disparate treatment in job assignments (most difficult, dirty and less desirable jobs reserved for black workers); and routine laying off of black workers first and rehiring of them last.
• Alabama KFC owner paid more than $1 Million to settle a sexual harassment suit brought by 19 female employees, some teens, subjected to a hostile work environment that included open description of sexual desires and interests, sexual touching, groping, gestures, demonstrations, open discussion of genitals, and female characteristics.
Common Questions about Discrimination
(a) Who is protected?
Almost everyone is protected by the anti-discrimination laws. The categories the laws mention – including race, color, religion, sex, national origin, age, handicap or disability and veteran status -- are broad enough to encompass virtually any applicant or employee. Men can be victims of discrimination and even sexual harassment. White employees can be discriminated against just as Hispanics, African Americans, or other minorities can be. The victim can be the same race or gender as the discriminator as well. This means every employee or applicant is a potential discriminator and a potential victim of discrimination.
(b) What constitutes discrimination?
Failing or refusing to hire an individual because of his or her membership in a protected class, firing an individual on that basis, or discriminating in any way with respect to pay, hours, assignments, privileges, and discipline because of that status constitutes discrimination. It is also illegal for an employer to retaliate against any applicant or employee because that person has complained about discrimination.
This means that an employee can complain that he has been discriminated against if he feels that decisions about work assignments, break times, pay, discipline, enforcement of attendance rules, preferential treatment, and other supervisory actions have been made on the basis of race, age, etc. In addition, employees may assert claims of discrimination if they have been subject to what is called “a hostile environment.” For example, if employees experience excessive criticism, ridicule, offensive remarks, and offensive treatment on the basis of their membership in a protected class, they may claim they have been discriminated against.
Sexual Harassment
What is sexual harassment?
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature between members of the same or opposite sex constitute sexual harassment when:
• Such unwelcome behavior or conduct is persistent.
• Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment.
? Example: An employee is told that if she wants to keep her job, she must date her supervisor.
• Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individuals.
? Example: An employee who has rejected her supervisor’s sexual advances suddenly receives a poor performance evaluation.
• Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive work environment.
? Example: A work environment where sexual language or behavior is tolerated even though an employee finds it offensive and complains about it.
• Anyone can be a harasser regardless of gender. This means men can harass women, men can harass men, women can harass men, and women can harass women.
• Sexual orientation is not always relevant in same-sex sexual harassment cases. This means even “horseplay” and joking between men regardless of their sexual orientation can constitute sexual harassment.
• What one employee finds funny may be inappropriate or offensive to another. If you would not put a joke, story or comment in the newspaper with your name next to it, it probably is not appropriate for the workplace.
• Comments or conduct need not be sexual or sexually oriented to constitute harassment. Gender-based conduct also can be harassment.
• Work is a professional environment; even where employees are friendly, boundaries are important.
• Employers can be held liable if it does not address sexual harassment by third parties such as vendors, suppliers, and customers.
Other Types of Harassment
Sexual harassment is not the only type of harassment that can occur in the workplace. Under Title VII and the other discrimination laws, harassment based on membership in any protected class is illegal. Protected classes include:
• Race
• Religion
• National Origin
• Age
• Disability
• Gender
• Pregnancy
• Veteran Status
Any harassment based on membership in one of these classes (or any other class protected by state or local law) violates discrimination laws. Maryland law also forbids discrimination in employment, housing and public accommodation based on sexual orientation and, effective October 1, 2014, will bar discrimination based on transgender status.
Retaliation
Almost all federal and state labor and employment laws prohibit employer retaliation against an individual who complains about or provides evidence about an employer’s alleged improper practices.
The purpose of the retaliation provisions in discrimination statutes is to protect individuals who complain about discrimination or provide information about possible discriminatory practices in the workplace. The concept is that without individuals to file complaints or provide information about possible complaints, the goal of eliminating discrimination and harassment from the workplace would be difficult or impossible. These provisions protect employees from suffering any type of negative action as a result of having complained of harassment or discrimination or participating in an investigation into any such claim.
Until a few years ago, many courts required employees making a retaliation claim to show that they suffered a tangible harm as a result of their protected activity – for example, being fired or demoted. However, the United States Supreme Court made it much easier for employees to pursue retaliation claims, holding that illegal retaliation includes any action that would deter a reasonable employee from engaging in protected activity. This means that supervisors must be much more careful in how they treat employees during and following a harassment or discrimination claim, including an internal complaint.
Examples of conduct that may lead to a retaliation claim include: discipline, demotion, transfer to a different position, transfer to a different shift, change of job duties, change of job location and closer scrutiny.
FAMILY MEDICAL LEAVE ACT
• The Family Medical Leave Act (the “FMLA”) is a federal law granting leave to employees for the following:
• their own serious health condition
• the serious health condition of a family member
• to care for a new child
• for certain circumstances created by a family member’s military service.
• FMLA leave taken for any of these reasons, including multiple leaves during the year for different reasons, counts towards the employee’s total FMLA leave entitlement for the year – generally a total of 12 weeks, except in the case of leave to care for a family member injured as a result of active duty military service.
• To be eligible for FMLA leave, employees must:
• Have worked for Applegate for at least 12 months
• Have actually worked at least 1250 hours in the preceding 12 months and
• Work at a location with at least 50 employees within a 75 mile radius.
• Leave under the FMLA is unpaid, but employees can use any paid leave they have available while on FMLA (e.g., sick, vacation, etc.) and the employer can require that they do so.
• Employer must continue the employee’s health benefits while the employee is on leave on the same terms as if the employee was at work.
• Employees must be returned to the same or equivalent position with equivalent pay, benefits and responsibilities following the leave.
• Employees must provide certain notice of their need for leave.
• Once notice is given, Employer must designate leave provisionally as FMLA qualifying.
• Employees need not reference FMLA specifically when requesting leave, but must give enough information for the company to determine if the leave is FMLA-qualifying.
• Employer can request more information if the employee fails to offer enough for Applegate to determine if the leave is FMLA-qualifying.
• There are strict time limits for Employer’s response to the employee’s request for leave.
• Employer must notify employee of his or her eligibility within 5 business days of learning of the need for leave, absent extenuating circumstances.
• Employer must provide at least one reason for non-eligibility if applicable.
• At the same time, employer must provide employees with a statement of rights and responsibilities.
• Employer has 5 business days to certify leave as FMLA after employee returns medical certification or any other information requested.
• Notice must:
• Inform employ of any substitution of paid leave.
• Address any requirement present a fitness-for-duty certification upon return to work.
Leave for an Employee’s Own Medical Condition or That of Family Member
• Eligible employees are entitled to up to 12 weeks of leave for their own serious health condition each leave year, which will vary for each employee, or the serious health condition of a family member.
• The employee must be unable to perform “one or more essential functions” of the job to qualify for leave.
• Employer may provide statement of job functions to the health care provider and require health care provider to specify which functions employee cannot perform.
• Employer determines which functions are essential.
• Qualifying family members are an employee’s spouse, parent or child.
• Leave to care for a parent does not include in-laws, but includes adoptive parents and people who acted in loco parentis to the employee when he or she was a child.
• Child includes foster child and adoptive child, as well as a child to whom the employee stands in loco parentis.
• Child means only children under the age of 18, unless the adult child is rendered unable to engage in self-care as a result of a physical or mental disability.
• Providing psychological comfort and care is sufficient to be needed to care for a family member with a serious health condition.
• Serious Health Condition is an illness, injury, impairment or physical or mental condition that involves:
• Inpatient care
• Incapacity due to pregnancy or for prenatal care
• Incapacity because of long term condition (e.g., Alzheimer’s, severe stroke, terminal stage of a disease)
• Multiple treatments (and recovery therefrom) by a health care provider (e.g., cancer treatments, arthritis or kidney disease)
• Chronic serious health condition (e.g., asthma, diabetes, epilepsy)
• Incapacity for more than 3 days plus treatment 2 or more times by a healthcare provider or
• Treatment at least 1 time plus a regimen of continuing treatment (e.g., prescription medication or physical therapy) under the supervision of a healthcare provider.
• “Continuing treatment” does not include a regimen of over-the-counter medications, bed rest, etc., that can be started without a visit to a healthcare provider.
• Common cold, flu, upset stomach and routine dental problems do not qualify as serious health conditions.
• Conditions not currently incapacitating, but that require multiple treatments qualify as serious health conditions (e.g., chemotherapy or dialysis).
• Employer can request medical certification from the employee’s (or family member’s) doctor to determine:
• Whether condition is FMLA qualifying
• Whether intermittent leave is medically necessary
• Probable duration of leave schedule
• Likely duration and frequency of episodes of intermittent leave and
• If applicable, probable number and duration of treatments, actual or estimated dates, and period for recovery.
• Employer can also require employees returning from leave for their own serious health conditions to provide a doctor’s note declaring them fit for duty based on the reason the employee took FMLA leave.
Continuous and Intermittent Leave
• Leave for a serious health condition (the employee’s or a family member’s) may be taken in consecutive, full work weeks.
• Leave for a serious health condition may be taken on a reduced leave (part-time) schedule or intermittently when medically necessary for planned medical treatment or episodically when symptoms flare up.
• No requirement that employee be seeking treatment for each episodic absence.
• Intermittent leave can be used for an employee’s serious health condition or that of a family member.
• Intermittent Leave Examples
• Periodic treatment – chemotherapy
• Periodic symptoms – severe morning sickness
• Periodic flare-ups – severe asthma
• Reduced work capacity – part-time schedule while recuperating from surgery
• For planned medical treatment, the employee must:
• Advise employer, upon request, of reasons why intermittent/reduced leave schedule is necessary and the schedule for treatment
• Consult with employer before scheduling treatment and
• Make “reasonable effort” to schedule leave so as not to disrupt unduly employer’s operations.
• Employee’s health care provider must approve the schedule.
• Employer may require an employee to transfer temporarily during period of intermittent leave to:
• Available alternative position
• For which employee is qualified
• Which better accommodates recurring periods of leave and
• Does not violate terms of collective bargaining agreement, if applicable.
• However, employer cannot transfer or alter the duties of an employee who needs unscheduled or unforeseeable intermittent leave.
• For most employers, intermittent leave for chronic conditions (e.g., asthma attack, migraine headache) causes the most problems.
• Employee must satisfy any existing rules for calling out, but need only give as much notice as is practical under the circumstances.
• Employee can use leave in small increments (i.e., an hour or less) creating coverage problems and creating the likelihood that the employee’s leave entitlement will never be exhausted (e.g., an employee who uses intermittent leave once a week will never exhaust his or her leave entitlement).
• There is no hardship exception and no right to transfer the employee to a different schedule or different position to minimize the disruptions from the frequent call-outs.
• Because many of the most frequently problematic conditions are characterized by subjective symptoms (e.g., migraine headaches, back pain) that can be of short duration during each episode (e.g., asthma attack, migraine), abuse, when suspected, may be almost impossible to prove.
Leave for a New Child
• Eligible employees are entitled to up to 12 weeks of leave each leave year to care for a newly born or newly adopted child or a child newly placed with the family for adoption or foster care.
• FMLA leave taken to care for a new child counts towards the employee’s total FMLA leave entitlement for the year along with leave for taken for any other purpose.
• Leave to care for a new child must be completed within one year of the child’s birth or placement.
• Leave to care for a new child cannot be taken intermittently or on a reduced work schedule, except with employer’s permission.
• Spouses who are both employed by employer can take a combined 12 weeks of leave for this purpose.
Military Family Leave
There are now two types of FMLA leave that can apply to families involved in military deployments:
• An employee may take FMLA leave because of any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on active duty (or has been notified of an impending call or order to active duty) in support of a contingency operation.
• An employee may take FMLA leave to care for a covered service member with a serious injury or illness if the employee is the spouse, son, daughter, parent or next of kin of the service member.
AMERICANS WITH DISABILITIES ACT
• Generally, the Americans with Disabilities Act (the “ADA”) prevents employers from discriminating against employees or potential employees with disabilities if they can still perform the essential functions of their jobs.
• Under the ADA, a disability is some physical or mental impairment that substantially limits one or more major life activities or having been regarded as having such an impairment.
• A major life activity is something that the average person could do without any difficulty like walking or breathing.
• Less obvious examples of disabilities covered under the ADA include depression and learning disabilities.
• Pregnancy is not considered a disability (but discrimination because of pregnancy is illegal gender discrimination).
• A recovering drug or alcohol addict can be protected under the ADA. This means that you cannot discriminate against an employee because he or she was once in rehab.
• The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as –
• Medication
• Medical supplies, equipment or appliances
• Prosthetics, including limbs and devices
• Mobility devices
• Oxygen therapy equipment and supplies
• Assistive technology
• Reasonable accommodations or auxiliary aids or services
• Learned behavioral or adaptive neurological modifications.
• As long as the employer knows about the employee’s disability, the employer must provide the employee with a reasonable accommodation, if one exists, to allow the employee to perform his or her job. Examples include:
• Leave of absence beyond amount of leave granted by Applegate’s policies
• Return to work rights – same job
• Modifying policies (e.g., attendance policy)
• Modified Work
• Restructuring job
• Marginal functions only
• No need to remove essential functions
• Transfer to a vacant position as a last resort
• Employers do not have to provide accommodations if doing so would impose an undue hardship on the employer.
• If an employee cannot perform the essential functions of his or her position, even with a reasonable accommodation, the employee is not protected under the ADA.
Interplay of the ADA and FMLA
• Disability v. Serious Health Condition- The definition of a serious health condition is broader than that of a disability. Thus, virtually every medical condition that meets the definition of disability will be a serious health condition under the FMLA but the inverse is not true.
• Extending Leave Beyond 12 Weeks- Employers may be required to extend leave time beyond the 12 work weeks mandated by the FMLA as a form of reasonable accommodation. The FMLA regulations state that the ADA stands in contrast to the FMLA’s 12 week limit insofar as it allows an indeterminate amount of leave as a reasonable accommodation, as long as it does not place an undue hardship on the employer.
• Discipline or Discharge for Absenteeism- Discipline and discharge for attendance problems may implicate both the ADA and the FMLA. If the employee has a disability which requires FMLA leave, discipline for poor attendance may violate both of the laws.
• Job Restoration- Disabled employees may need to take FMLA leave from time to time. If the disabled employee takes an FMLA leave that is not considered an accommodation under the ADA, the employer can place him in his old job or an equivalent job without violating the FMLA. If the leave was an accommodation for the employee’s disability, the employee must be restored to his old job. An employer can refuse to return the employee to work following leave if the employee is unable to perform all of the essential functions of the job with or without accommodation.
• Reasonable accommodation/Interactive Process- Required under ADA, but not under the FMLA.
• Medical Examinations- Under both the FMLA and the ADA, an employer may ask for medical history information or may require the employee to undergo a medical examination as long as any information sought is necessary and related to the job. Such information is confidential and therefore must be kept in a separate file with restricted access.
• Light Duty Programs- Eligible employees have an absolute right to FMLA leave if they cannot perform any essential function of the job. Under the ADA, an employer can require participation in a light duty program.