Employment Law Update – Summer 2019
WORKPLACE SEX GOSSIP SUPPORTS BIAS CLAIM
Earlier this year, the Federal Court of Appeals sitting in Richmond ruled that a false rumor that a female employee “slept her way to the top” could lead to a valid sexual harassment claim in Parker v. Reema Consulting Services, Inc. This case involves the claims of a female warehouse manager, Evangeline Parker, who worked in RCS’s Sterling, Virginia warehouse for about 18 months. During that time, she received 6 promotions, eventually becoming Assistant Operations Manager of the Sterling warehouse. After her promotion to Assistant Operations Manager, Ms. Parker alleged that a male co-worker, Donte Jennings, who began working at about the same time she did, started a false rumor about Ms. Parker. Ms. Parker claims in her lawsuit that Jennings started the rumor out of jealousy because of Ms. Parker’s quicker advancement to a position where she supervised her former co-worker. Additionally, Ms. Parker alleged that Larry Moppins, the highest-ranking RCS employee in the warehouse, helped spread the false gossip. Once the rumor gained traction, Ms. Parker alleged that other male workers treated her with increased hostility and disrespect.
Ms. Parker ultimately filed a hostile work environment claim against Jennings and Moppins with RCS’s HR department. Ms. Parker alleged that the harassment did not stop despite HR being contacted. Weeks later, Jennings submitted a complaint to HR that Ms. Parker was the one creating a hostile work environment through her inappropriate conduct. Moppins ultimately gave Ms. Parker two written warnings- one based on Jennings’ complaint, and one for insubordination toward Moppins himself- and fired her during a May 2016 meeting. Ms. Parker alleged that the warnings were unfounded and that she had no prior warnings. She further alleged in her lawsuit that male employees with three or more warnings were not generally fired.
Ms. Parker filed a lawsuit in federal court which was initially dismissed because the Trial Judge determined that the rumor and the spreading of that kind of rumor were based upon conduct and not Ms. Parker’s gender. On appeal, the Fourth Circuit Judges disagreed with the Trial Judge and concluded that the rumor implied that Ms. Parker used her womanhood, rather than her merit, to obtain a promotion from a man or essentially used seduction to gain advantage in the workplace. They further stated that this invoked a “deeply rooted perception – one that unfortunately still persists – that generally women, not men, use sex to achieve success.” Accordingly, the Fourth Circuit Court of Appeals ruled that Ms. Parker’s allegations, taken as true, plausibly stated a claim that she suffered harassment because she is a woman. Accordingly, her lawsuit was allowed to proceed at the Trial Court level once again.
There is no guarantee that Ms. Parker will ultimately prevail with her lawsuit, but if her allegations are proven, the employer’s actions are not likely to cause a judge or a jury to be sympathetic with RCS. Whether or not Ms. Parker is successful, this situation has created an expensive headache for RCS. RCS clearly had a chance to resolve this internally, but HR and RCS management missed their chance to avoid litigation. Handling employee complaints internally to avoid costly litigation is one of the principal themes that will be presented to attendees of the July 25, 2019 showing of the 35th Annual Update at the Hampton Roads Convention Center. To register, visit http://www.kaufcan.com/events or call 757.624.3232.
K&C EMPLOYMENT TEAM ADDS NEW MEMBER
The Kaufman & Canoles Employment Team is pleased to welcome Neil Talegaonkar as a new member who will work out of K&C’s Richmond office. He joins Randy Sparks and long-time Employment Team member Bob Barry, who recently relocated his primary office from Norfolk to Richmond. Neil is a seasoned employment lawyer who will continue to provide litigation and counseling support for employers throughout Virginia.
EMPLOYERS MUST SUBMIT PAY DATA TO EEOC BY SEPTEMBER 30TH
Absent unexpected further judicial or government intervention, employers required to submit EEO-1 reports will have to submit employee pay data for 2017 and 2018 to the EEOC by September 30, 2019. The EEOC’s pay data collection rule was previously rescinded by the Trump administration; however, a federal judge recently ruled that the EEOC is required to reinstate the rule and collect the pay data no later than September 30th.
Generally, employers with 100 or more employees and federal contractors with 50 or more employees and a contract worth $50,000 or more must submit an annual EEO-1 report. This year, covered employers have two deadlines. The first deadline is May 31st for the reporting of the traditional demographic information required by the EEO-1 report. Employers may request a two-week extension – until June 14th — of this deadline by e-mailing the EEOC at firstname.lastname@example.org. The second deadline requires employers to report how much they paid employees of different sexes, races, and ethnicities in 2017 and 2018 by September 30th. The EEOC portal for pay data collection is not yet available, but the EEOC has announced that it expects the portal to be open in mid-July 2019.
SICK DAY LEADS TO EMPLOYEE DISCHARGE
The Fourth Circuit Federal Court of Appeals, in the case of Haynes v. Waste Connections Inc., recently considered the claims of an employee discharged for taking one sick day. Mr. Haynes, an African-American man, worked for Waste Connections since 2006 and was responsible for driving a trash truck in South Carolina. On the day in question, Mr. Haynes arrived at work two hours before his normal start time. While he was waiting for his truck, he texted his supervisor, Mr. Fountain, that he would be unable to work due to a stomach virus. Mr. Haynes then left for the day. Later that day, Mr. Haynes called Mr. Fountain to say he was feeling better and could return to work the next day. Waste Connections then terminated Mr. Haynes’ employment for job abandonment.
After Mr. Haynes filed suit, Waste Connections claimed that the real reason for Mr. Haynes’ discharge was that he had three prior infractions related to his driving. However, Mr. Fountain previously told Mr. Haynes that he had “nothing to worry about” when they discussed his upcoming annual performance review. Also, Waste Connections had permitted a Caucasian employee who had committed four infractions to return to work after the employee yelled at Mr. Fountain and quit his position. On the other hand, Mr. Haynes was terminated even though he had only missed one day of work. Mr. Haynes claimed, and the Court agreed, that these facts implied that Waste Connections’ decision was motivated by race discrimination because they had treated the employees differently.
As a practical matter, this case teaches an important lesson about consistency. Waste Connections ultimately got into trouble because they were inconsistent in how they applied their discipline and job abandonment policies to the detriment of the member of a protected class. This inconsistency led to the appellate court ruling that the employee’s claims of illegal discrimination could go forward. Remember, consistency is one of the best ways to avoid discrimination claims.
TOP EMPLOYEE LAWYER TO SPEAK AT K&C SEMINAR
Lisa Bertini makes her living by suing employers on behalf of employees. . . and she is very good at it. That is why she was selected by Coastal Virginia Business Magazine as its top labor and employment lawyer for 2018.
Her experience suing employers also makes Lisa the perfect luncheon speaker to provide employers at the July 25th showing of the 35th Annual Employment Update with a candid view of what a savvy employee’s lawyer looks for when deciding whether to sue a company. The goal of this luncheon presentation will be to provide guidance on how to avoid being sued by lawyers like Lisa.
EEOC CHARGES FALL TO 12-YEAR LOW
In April, the Equal Employment Opportunity Commission (“EEOC”) released statistics about the number of discrimination charges that were filed in fiscal year 2018. This report revealed that, overall, the number of discrimination charges fell to a 12-year low of 76,418. This total was down about 8,000 charges from the total for FY 2017 and is the lowest tally since 2006. The most commonly filed charge in 2018 remained retaliation, but like most types of discrimination charges, there were fewer retaliation claims filed in FY 2018 as well. The exception to the downward trend was that there were about 900 more sexual harassment complaints filed with the EEOC in fiscal year 2018 than the previous year.
The experts point to the #MeToo Movement as the possible reason for a surge in sexual harassment charges while fewer job rejections and firings due to high demand for workers and a low unemployment rate may have led to the overall decline in charges. Even with a drop in charges handled, the EEOC reported that it secured about $505 million for workers in FY 2018.
35TH ANNUAL EMPLOYMENT LAW UPDATE RETURNS TO HAMPTON
On July 25, 2019, K&C’s 35th Annual Employment Law Update returns to the Hampton Roads Convention Center. Over the years, social media has triggered some interesting legal questions about its effect on the workplace. From posts, to photos, to comments that can be interpreted as vulgar, obscene, threatening, intimidating or even harassing – social media can make the employment law arena quite confusing. The 35th Annual Employment Law Update will highlight social media in the workplace and other employment law risks while providing practical suggestions on risk avoidance.
The seminar will include an entertaining/educational mock scenario featuring problem employee “Antoine Merriweather” and his inadvertent disclosure of confidential employee information to a cybercriminal. Topics to be presented at this Hampton showing of the 35th ELU include a timely wage-hour update, dealing with cyber-bullying, ADA compliance, discipline and discharge, and more. In keeping with this year’s social media theme, there will also be a workshop on regulating social media in the workplace.
Dynamic diversity trainer, Mauricio Velasquez, will also be on hand to present topics that should help HR professionals deal with cyber-bullying and HR’s role as a change agent in most organizations. Representatives from key employment law agencies will be in attendance to provide an agency perspective while helping to update attendees. As always, the ever popular “Answer Booth” will be available to help provide practical answers to all employment law questions. Attendees can also earn up to 6 credit hours toward PHR and SPHR recertification through the Human Resource Certification Institute (HRCI) and 5 PDCs toward the SHRM-CP or SHRM-SCP. And finally, one lucky attendee will win an Apple® iPad Wi-Fi 32GB at the end of the day. To register, visit www.kaufcan.com/events or call 757.624.3232.
The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances. Copyright 2019.