The Fourth Circuit recently issued an excellent decision in Okoli v. City of Baltimore.  This case presents claims under Title VII action for sexual harassment and retaliation (termination) for reporting the harassment.  Amazingly, the trial court dismissed the case.  The Fourth Circuit reversed, concluding that the plaintiff’s allegations that her boss forcibly kissed her, fondled her leg, propositioned her, asked sexually explicit questions, described sexual activities he wished to perform, and then, after she spurned the advances and filed a harassment complaint, fired her are sufficient to support claims of hostile work environment, quid pro quo sex harassment, and retaliation.

Categories: Judicial Decisions Tags: Appeals, Articles, Case Commentary, Discrimination, Fourth Circuit, Labor and Employment, Retaliation, Sexual Harassment, Title VII

In Staub v. Proctor Hospital, the US Supreme Court just issued an important unanimous decision in this military-service-based discrimination case.  This case concerns the so-called “cat’s paw” theory of liability, under which one supervisor acts with discriminatory intent against the plaintiff, but the plaintiff is actually fired by another supervisor.  The case arose under the Uniformed Services Employment and Reemployment Rights Act (USERRA), which protects members of the military from workplace discrimination based on their military position or service.  The Court held that “if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.”

Because the language of USERRA is very similar to Title VII, this principal likely also applies to cases of race and sex discrimination at least.  (More coverage here, here.)

Categories: Judicial Decisions Tags: Case Commentary, Cat's Paw, Discrimination, Labor and Employment, Military Discrimination, Race Discrimination, Sex Discrimination, Title VII, US Supreme Court, USERRA

In the case of Pascoe v. Furniture Brands International, Judge Frank Whitney in the Western District of North Carolina denied the defendants’ motion for summary judgment on plaintiff’s claims of sexual harassment today.  The case will now proceed to trial, which is scheduled for later this month.  Ann Groninger and Joshua Van Kampen represent the plaintiffs, Pam Pascoe and Margaret Tambling, against their former employers in this case.

Judge Whitney did not issue a written decision, but plaintiff’s memorandum in opposition to summary judgment well describes this case:

This case raises a very poignant and present question, which is the extent of an employer’s liability under state and federal law for the conduct of a seemingly mentally unstable supervisor who tormented his female employees with threats of violence, including gun violence, surveillance of their homes, and numerous bizarre sexual comments. Regrettably, the conduct at issue in this case is a cautionary tale of an employer that flubbed the handling of a potentially dangerous situation by initially ignoring glaring warning signs, subsequently severely under-reacting to them, and which ultimately chose to circle the wagons around the proverbial outlaw, rather than act as a responsible member of our corporate community. Thankfully, Spicer did not turn his guns on these women as he said he might, but plaintiffs feared that he was fully capable of physically harming them. They have carried emotional scars left by Mr. Spicer’s conduct; injuries made worse by their employer’s betrayal of them. Defendants may aim to use their summary judgment motions to establish a low water mark of the protections afforded women in the workplace in North Carolina; however, plaintiffs respectfully submit that they have marshaled sufficient facts to permit a jury to answer that question.

Categories: Judicial Decisions, News of the Firm Tags: Ann Groninger, Briefs, Discrimination, Joshua Van Kampen, Judge Whitney, Labor and Employment, Results, Sexual Harassment, Summary Judgment, Title VII, Western District of North Carolina

In a recent unpublished opinion, Bunting v. Town of Ocean City, the Fourth Circuit partially overturned a grant of summary judgment and allowed the plaintiff to proceed to trial on his USERRA retaliation claim.   USERRA is a federal statute that protects armed service members from being discriminated in employment because of their service.  Like other anti-discrimination laws, USERRA also protects against employer retaliation because of filing a USERRA complaint.

In this case, a police sergeant filed a USERRA complaint about service-based discrimination and was subsequently denied promotions that he applied for.  While the Fourth Circuit agreed there was not enough evidence to substantiate the initial USERRA complaint, the plaintiff had produced strong evidence of the subsequent retaliation by his employer.   Thus, summary judgment was partially reversed, allowing the retaliation claim to proceed to trial.

Categories: Judicial Decisions Tags: Case Commentary, Discrimination, Fourth Circuit, Labor and Employment, Police, Retaliation, Summary Judgment, USERRA

On November 9, 2010, the Equal Employment Opportunity Commission (EEOC) issued its final regulations implementing the employment-related provisions in Title II of the Genetic Information Non-Discrimination Act of 2008 (GINA).  Details on the new regulations can be found at the Federal Register and at the EEOC.

Under Title II of GINA, it is illegal to discriminate against employees or applicants because of genetic information. Title II of GINA prohibits the use of genetic information in making employment decisions, restricts employers and other entities from requesting, requiring or purchasing genetic information, and strictly limits the disclosure of genetic information.  More details on GINA can be found at the EEOC.

Categories: Legislative Action Tags: Discrimination, EEOC, Equal Employment Opportunity Commission, Genetic Information Non-Discrimination Act, GINA, Labor and Employment, Regulations

This New York Times article discusses an important employment issue that may become more prevelant: whether and how employers may test and discipline employees for using legal prescription drugs.  As the article relates, drug testing like this is regulated in part by the Americans with Disabilities Act (ADA).

In North Carolina, two other state statutes can come into play.  First is the Controlled Substance Examination Regulation, N.C. Gen. Stat. 95-230 et seq., which specifies some of the required procedures for drug testing.

Second is the statute protecting against workplace discrimination against persons for the lawful use of lawful products, N.C. Gen. Stat. 95-28.2.  Under the law, an employer generally may not discriminate based on an employee’s “lawful use of lawful products if the activity occurs off the premises of the employer during nonworking hours and does not adversely affect the employee’s job performance or the person’s ability to properly fulfill the responsibilities of the position in question or the safety of other employees.”

Categories: General News Tags: ADA, Americans with Disabilities Act, Controlled Substances, Discrimination, Drug Testing, Labor and Employment, New York Times, North Carolina

The Fourth Circuit has issued another good decision in favor of employees who are sexually harassed in EEOC v. Fairbrook Medical Clinic. This case involves a family medicine practice in Hickory, North Carolina.  Here’s the summary: “The Equal Employment Opportunity Commission brought this suit on behalf of Dr. Deborah Waechter against her former employer, Fairbrook Medical Clinic. The agency alleges that Dr. John Kessel, the sole owner of the clinic, subjected Waechter to a hostile work environment because of her sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The district court held that Kessel’s conduct was not sufficiently severe or pervasive to constitute a hostile work environment. What happened here, however, was not merely general crudity but a series of graphic remarks of a highly personal nature directed at a female employee by the sole owner of an establishment. After carefully considering these circumstances, we conclude that the EEOC has presented an issue of triable fact and accordingly reverse.” Here’s more from the opinion: Read more…

Categories: Judicial Decisions Tags: Case Commentary, Discrimination, EEOC, Fourth Circuit, Hostile Work Environment, Labor and Employment, North Carolina, Severe and Pervasive Conduct, Sexual Harassment

The Fourth Circuit Court of Appeals recently issued a ringing opinion for employees in Merritt v. Old Dominion Freight Lines, a gender discrimination case until Title VII.  The Court’s discussion of gender discrimination, sex stereotyping, and a corporate culture of discrimination is excellent and will make very useful precedent.  A long-ish discussion is therefore in order.  As the Court stated though, the quick summary is that plaintiff “Deborah Merritt’s story is one of a certain grit and perseverance.”

Old Dominion is a nationwide trucking firm that employs thousands as “line haul” drivers and “pickup and delivery” drivers.  Line haul drivers travel across state lines and often spend nights and weekends away from home, while pickup and delivery drivers work locally and rarely work nights or weekends.  The pickup and delivery job requires more lifting and therefore is more physically demanding than line haul driver.

Merritt worked for Old Dominion for six years as a line haul driver based in Greensboro, North Carolina, before she sought a travel and pickup delivery driver job so she could spend more time at home. Beginning in 2002, Merritt applied for several open pickup and delivery positions at Old Dominion’s Lynchburg, Va., facility, but initially was turned down for jobs that went to less-experienced male drivers.  Various managers alleged stated that women were not suited to be pickup drivers.

Read more…

Categories: Judicial Decisions Tags: Case Commentary, Discrimination, Fourth Circuit, Gender, Greensboro, Labor and Employment, Pretext, Sex Stereotyping, Title VII, Trucking

The federal D.C. Circuit Court of Appeals issued a decision last month, in Shuler v. PriceWaterhouseCoopers, sharply restricting the scope of the Lilly Ledbetter Fair Pay Act, which President Obama signed into law soon after entering office.  The Fair Pay Act extends the timely filing deadlines for certain discriminatory employment actions, specifically those involving “discrimination in compensation.”  The case involved a plaintiff who was denied a promotion in 1999 and 2000 and who claimed that those decisions, which were made because of age discrimination, had continuing effects on his compensation because the promotions would have come with raises.  With little analysis, the Court held that “discrimination in compensation” means “paying different wages or providing different benefits to similarly situated employees, not promoting one employee but not another to a more remunerative position.”  A close reading of the statute’s language, purpose, and legislative history might challenge the Court’s conclusion, and hopefully other courts will consider the question more carefully.

Categories: Judicial Decisions Tags: ADEA, Case Commentary, DC Circuit, Discrimination, Labor and Employment, Lilly Ledbetter Fair Pay Act, Statute of Limitations

In King v. McMillan, the Fourth Circuit affirmed a jury verdict and the court’s rulings in a sexual harassment case.  The plaintiff, a former deputy in a sheriff’s office, had been sexually harassed by the sheriff over several years.   A jury awarded her compensatory and punitive damages on her claims of battery and sexual harassment under Title VII.  The Court upheld the awards, the substitution of the correct defendant, and the admission of testimony of other female employees who had been sexually harassed by the same sheriff.

Categories: Judicial Decisions Tags: Battery, Case Commentary, Discrimination, Fourth Circuit, Labor and Employment, Punitive Damages, Sexual Harassment, Title VII