By Kevin Green and Jesse Coleman

Seyfarth Synopsis:  A recent editorial authored by two female doctors in the Canadian Medical Association Journal proclaims that, “in the era of #MeToo, it is time for physicians to acknowledge that the medical profession is not immune to bullying, harassment and discrimination, and act to abolish these behaviours.”  #MeToo and the Medical Profession (Aug. 20, 2018).  While the #MeToo movement had unprecedented success increasing accountability for sexual misconduct among entertainment, political, and academic institutions, the healthcare industry did not receive the same attention. Recent findings demonstrate, however, that the #MeToo movement will soon leave its mark on health care as well.

Perception of Historic Tolerance of the Medical Profession

A 2018 report issued by the National Academies of Sciences, Engineering, and Medicine (NASEM) documents the problem of sexual harassment in the medical field in significant detail.  Sexual Harassment of Women: Climate, Culture, and Consequences in Academic Sciences, Engineering, and Medicine.  Among other things, the NASEM report demonstrates that the academic environments in medicine exhibit characteristics that create high risk levels for the occurrence of sexual harassment.  The report finds that, by far, the greatest predictor of sexual harassment is the organizational climate across an institution (also referred to as the perceptions of organizational tolerance).  In short, women are more likely to be directly harassed and to witness the harassment of others in environments that are perceived as more tolerant or permissive of sexual harassment.

According to a recent AP investigation, the medical industry has traditionally been more forgiving of sexual harassment allegations within its own ranks. The AP found that “when doctors are disciplined, the punishment often consists of a short suspension paired with mandatory therapy that treats sexually abusive behavior as a symptom of an illness or an addiction” and that decades of complaints regarding the leniency of the physician disciplinary system for sexual misconduct toward patients or co-workers has produced little change in the practices of state medical boards.  AP Investigation: Doctors Keep Licenses Despite Sex Abuse (Apr. 14, 2018). The AP report details that the causes underlying these issues are complex and varied, including:

  • Failure of the medical community to take a stand against the issue;
  • Institutional bias on part of medical review boards to rehabilitate instead of revoke licensure;
  • Perceived tolerance for sexual harassment through precedent of lenient penalties for sexually abusive doctors which inhibits current disciplinary actions;
  • Interference from administrative law judges who reduce stricter punishment sought by medical boards against sexually abusive doctors (though medicine boards may seek to override administrative decisions they disagree with);
  • Hospital disinclination to report abusive doctors;
  • Rehabilitative physician health programs that are either ineffective in addressing sexual misbehavior or ignore it altogether; and
  • Patient and employee reluctance to challenge a medical professional or employers.

Regardless of the causes, the days of organizational tolerance of sexual harassment in the medical profession appear numbered as more and more individuals and institutions search for solutions to these historical challenges.

The #MeToo Movement is Here to Stay

Though perhaps not subject to the same media coverage initially afforded, the #MeToo movement remains an active force in the workplace. Title VII filings accounted for 56 percent of all filings with the Equal Employment Opportunity Commission (EEOC) in FY 2018. Perhaps the most striking trend of all is the substantial increase in sex-based discrimination filings, primarily the number of sexual harassment filings.  See EEOC Puts The Pedal To The Metal: FY 2018 Results.

#MeToo added fuel to this area of the EEOC’s agenda, with 74 percent of the EEOC’s Title VII filings this year targeting sex-based discrimination.  Compare this to FY 2017, where sex based discrimination accounted for 65 percent of Title VII filings. Of the FY 2018 sex discrimination filings, 41 filings included claims of sexual harassment. 11 of those filings were brought in the last three days of the fiscal year alone. The total number of sexual harassment filings was notably more than FY 2017, where sexual harassment claims accounted for 33 filings.

How Medical Employers Can Challenge Perceptions of Organizational Tolerance

The #MeToo movement presents myriad challenges that defy one-size-fits-all solutions. However, there are practices that can assist employers in their quest to create harassment free workplaces. As the research suggests, creating an anti-harassment culture begins with company leadership and then can permeate the entire organization. Beyond simple compliance, legal measures should be implemented with the goal of improving accountability and reducing the occurrence of sexual harassment. Some measures include:

  • Update company policies to clarify protections and conduct, emphasize non-retaliation provisions, and ensure multiple reporting channels and robust response protocols;
  • Conduct proper, substantive investigations that are not outcome determinative; and
  • Enhance and refresh sexual harassment training from the top down and reinforce through communication and modeling.

Identifying and implementing active measures to challenge the perception of tolerance for any harassing or abusive behavior within an organization is an essential step toward meeting the #MeToo movement’s call for a respectful work environment for all.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Labor & Employment Team.

By Andrew H. Perellis, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: In another business-friendly move, the U.S. Department of Justice (DOJ) recently updated its Justice Manual to clarify that it “should not treat a party’s noncompliance with a guidance document as itself a violation of applicable statutes or regulations [or to] establish a violation by reference to statutes and regulations.”

We had blogged in early 2018 regarding Associate Attorney General Rachel Brand’s memorandum “Limiting Use of Agency Guidance Documents In Affirmative Civil Enforcement Cases.” (Brand Memo), which indicated that the Department would no longer prosecute cases based solely on violations of various agencies’ “guidance documents”. Now DOJ has taken it a step further by adding a section to its Justice Manual (Manual) titled: “Limitation on Use of Guidance Documents in Litigation..” The new section was effective in December 2018.

Under the updated Manual, DOJ (which effectively acts as “outside counsel” to departments and agencies including the DOL, EPA, OSHA, ATF and DEA, among others, in cases exceeding certain penalty thresholds and other criteria) may no longer prosecute cases against alleged violators unless the violations are of properly promulgated (through “notice and comment” rulemaking) regulatory requirements, not agency guidance documents or policies.

The Brand Memo itself was a follow-up to an earlier memo issued by Attorney General Jeff Sessions on November 16, 2017 (Sessions Memo), which instituted a new policy that prohibits the Department of Justice from using its civil enforcement authority to convert agency guidance documents into binding rules. The Sessions Memo “prevent[ed] the Department of Justice from evading required rulemaking processes by using guidance memos to create de facto regulations. In the past, the Department of Justice and other agencies had blurred the distinction between regulations and guidance documents.”

Under the DOJ’s new policy, DOJ civil litigators are “prohibited from using guidance documents—or noncompliance with guidance documents—to establish violations of law in affirmative civil enforcement actions.” The Brand Memo also indicates that “the [Sessions Memo]. . . prohibits the Department from using its guidance documents to coerce regulated parties into taking any action or refraining from taking any action beyond what is required by the terms of the applicable statute or lawful regulation.” Finally, the Brand Memo confirms that the DOJ “…should not treat a party’s noncompliance with an agency guidance document as presumptively or conclusively establishing that the party violated the applicable statute or regulation.”

While the Brand Memo applied only to affirmative civil enforcement actions brought by the DOJ, we see the updated Manual, Sessions Memo and the Brand Memo as welcome relief from arbitrary use of guidance by departments and agencies such as the DOL, OSHA, or EPA in enforcement proceedings of regulated industry.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth OSHA Compliance, Enforcement & Litigation Team or the Environmental Compliance, Enforcement & Permitting Team.

By Samantha L. Brooks and Karla Grossenbacher

Seyfarth Synopsis: Employees’ use of their personal social media accounts in ways that could impact an employer’s business present challenges to employers.

In this case, a Maryland state government employee claimed that she was retaliated against for a Facebook post where she referred to a Maryland gubernatorial candidate as an “a**clown.” In granting a preliminary injunction and reinstating an employee’s job duties, the U.S. District Court for the District of Maryland held that reassignment of the employee’s duties three days after the Facebook post was retaliation for protected speech, particularly where the employer could not demonstrate how the post harmed the employer. Thomson v. Belton, No. ELH-18-3116, 2018 WL 6173443 (D. Md. Nov. 26, 2018).

The plaintiff served as the public information officer for the Natural Resources Police (NRP), a subdivision of the Maryland Department of Natural Resources (DNR). She was a public employee and not a political appointee. As the public information officer, plaintiff acted as a spokesperson for the DNR, responded to media inquiries, administered the NRP’s social media accounts, and issued press releases, among other duties.

On September 17, 2018, while in her home, using her own electronic device and her own Facebook account, she responded to a Facebook post of a colleague by referring to Maryland gubernatorial candidate Ben Jealous as an “a**clown.” Plaintiff’s comment was prompted by Mr. Jealous’ decision to veto a reporter’s participation as a panelist in the only gubernatorial debate with Governor Larry Hogan. The following day, plaintiff’s supervisor asked her whether she had posted “*a**clown” on Facebook. She acknowledged that she had, offered to delete the post, and immediately did so of her own volition. Of note, plaintiff’s Facebook post did not violate the DNR’s social medial policy. Less than one week after the post, plaintiff was stripped of the majority of her media-related duties and they were reassigned, although she was permitted to draft press releases. Neither her title nor salary were changed.

On October 9, 2018, plaintiff filed suit against Mark Belton, Secretary of the DNR, in his individual and official capacity alleging violations of plaintiff’s rights under the First and Fourteenth Amendments. She also filed a Motion for a Temporary Restraining Order and/or Preliminary Injunction which, upon agreement by the parties, was treated as a Motion for Preliminary Injunction.

The defendant argued that plaintiff was demoted because of protracted performance issues, and not because of the Facebook post. Specifically, the defendant highlighted three instances where plaintiff had failed to communicate the happening of newsworthy events, including the discovery of a chest containing human bones at a beach in Ocean City, Maryland, the drowning death of a child, and a news article that reported a motor vehicle accident involving an NRP officer which resulted in the death of a family pet.

Since plaintiff was a public employee, the Court considered plaintiff’s claim under the Connick/Pickering standard, i.e. (1) whether there was an adverse action, (2) whether the employee was speaking as a citizen on a matter of public concern, (3) whether the employee’s interest in speaking on the matter of public concern outweighed the government’s interest in managing the workplace, (4) and whether the employee’s speech was a substantial factor in the adverse action. Thomson, 2018 WL 6173443 at *15. See Pickering v. Board of Education, 391 U.S. 563 (1968) and Connick v. Myers, 461 U.S. 138 (1983).

Adverse Action

The Court found that the plaintiff was subject to an adverse action. Prior to the reassignment of her media-related duties, plaintiff’s most important and most significant duties involved direct contact with the media. After reassignment, she was prohibited from such direct contact. The Court found that her new role — without the media duties — was less prestigious and less interesting. Id. at 21. The Court also noted plaintiff’s reassignment was neither trivial nor de minimus solely because plaintiff’s pay and some responsibilities remained unchanged.

Matter of Public Concern

The Court noted that plaintiff’s comment pertained to a matter of public concern. The Court further noted that discussion about political candidates — including plaintiff’s one word Facebook comment — fell within the realm of First Amended protected speech. The Court held that plaintiff’s comment was “in response to the posts of others on the issue of the candidate’s decision to veto a reporter from serving on the panel for a key election debate. This suggests that she was participating in an online public discussion . . . .” Id. at *22. Finally, the Court noted that plaintiff was speaking as a private citizen and not in the course of her official duties.

Employer’s Interest in Managing the Workplace

Defendant did not provide any evidence that plaintiff’s speech harmed NRP or DNR operations. The only harm the defendant could identify was that calling a political candidate a derogatory name and using inappropriate language was contrary to goals of the NRP. The Court held, however, that “inappropriate language unrelated to the employee’s employment, and spoken outside the workplace, does not intrinsically harm the employer’s interests.” Id. at 27.

Speech was a Substantial Factor in Adverse Action

The Court held that the reassignment of plaintiff’s duties was in retaliation for her Facebook post. The temporal proximity of plaintiff’s job assignment, just three days after Facebook post, clearly demonstrated that plaintiff’s protected speech was a substantial factor in the reassignment of her duties. Id. at 24. Of note, the Court noted that the record did not corroborate defendant’s claims that plaintiff had performance issues.

The court ultimately held that plaintiff was entitled to a preliminary injunction requiring the immediate reinstatement of plaintiff’s job duties.

Private Employer Takeaways

Have a social media policy! Employees who work for private, non-governmental employers do not generally have First Amendment protection for their speech in the workplace. Before taking any action based on an employee’s speech on social media, employers should first consult their social media policies to determine whether there has been a violation of the policy. Employers should also determine if the employee has some other interest at issue, such as speech that could implicate the protections of Title VII, speech that could violate the employer’s EEO or anti-harassment policy, or speech that implicates an employee’s rights under various union regulations, before taking any action.

Document, document, document! Employers must remember to document performance deficiencies or mistakes. If employers need to justify a personnel action or if litigation ever arises, it will be important to have a contemporaneous record of performance issues.

Those with questions or concerns about any of these issues or topics are encouraged to reach out to the authors, your Seyfarth attorney, or any member of the Labor & Employee Relations, Social Media Practice Group, or Workplace Policies and Handbooks teams.

By Danielle M. Kays and Erin Dougherty Foley

Seyfarth Synopsis: For the first time since the enactment in 2008 of the ADA Amendments Act (ADAAA), which broadened the definition of a disability under the Americans with Disabilities Act (ADA), the Ninth Circuit addressed, and expanded, the definition of an individual who is “regarded-as” disabled under the act. The court held that a plaintiff establishes he is “regarded-as” disabled if he shows “an actual or perceived physical or mental impairment,” regardless of whether the impairment actually limits, or the employer perceives the impairment to limit, a major life activity. The decision reminds employers to proceed carefully when making personnel decisions regarding employees with injuries or impairments, even if they may not rise to the level of a disability.

Case Background

In Nunies v. HIE Holdings, Inc., the plaintiff Herman Nunies was a former delivery driver for HIE Holdings in Honolulu, who had requested a transfer to a part-time warehouse position. The parties disputed the plaintiff’s stated reason for his transfer request, but the plaintiff claimed he requested the transfer to a less-physical position because he had developed shoulder pain. Plaintiff alleged that the Company initially approved the transfer but subsequently denied it and forced him to resign after he reported his shoulder pain to his employer. The employer cited budget cuts as the reason for denying the transfer and advised plaintiff that his position no longer existed, but evidence showed the employer had an open warehouse position at the time of plaintiff’s termination.

Plaintiff filed a lawsuit asserting disability discrimination under the ADA and state law, alleging that his employer forced him to resign because of his shoulder injury. The employer moved for summary judgment, arguing that plaintiff could not assert a prima facie case of disability discrimination because he was not disabled under the ADA, among other arguments. The district court agreed, granting summary judgment to the employer. In its decision, the district court held that plaintiff did not have a disability and was not “regarded-as” having a disability under the ADAAA, because plaintiff did not provide any evidence that the employer subjectively believed that plaintiff “was substantially limited in a major life activity.” The district court further held that the plaintiff did not establish an actual disability because he “did not identify any major life activities that were affected by his impairment” — indeed, plaintiff had continued to work without apparent issue or limitation. As further evidence that plaintiff was not disabled, the district court held that plaintiff had not demonstrated that his shoulder pain substantially limited any activity compared to most people in the general population.

The plaintiff appealed, joined by the Equal Employment Opportunity Commission (“EEOC”) as amicus curiae. The EEOC explained it offered its position to the appellate court because other district courts in the circuit had “failed to heed” the broader “regarded-as” disability definition promulgated by the ADAAA.

The Ninth Circuit’s Ruling

The Ninth Circuit agreed that the ADAAA expanded the scope of the ADA’s “regarded-as” definition and that some district courts continued to rely on pre-ADAAA case law to apply the older, narrower “regarded-as” disabled definition. Specifically, the district court in the Nunies case had erroneously concluded that Plaintiff had failed to meet his burden of presenting evidence that his employer “subjectively believed that Plaintiff is substantially limited in a major life activity.” Based on the plain language of the ADAAA, the appellate court held that plaintiff was not required to present evidence that the employer believed that plaintiff was substantially limited in a major life activity. Instead, the plaintiff could simply show that the employer terminated plaintiff “because of” his knowledge of the shoulder pain, regardless of whether the employer actually perceived the shoulder pain as a disability, and regardless of whether or not the shoulder pain amounted to an actual disability. Notably, the Ninth Circuit’s expansion of the scope of the “regarded-as” disability definition follows decisions in the First, Fifth, Sixth and Tenth Circuits which similarly defined the definition under the ADAAA.

Additionally, although the employer had argued that the ADAAA “regarded-as” disabled definition does not apply to “transitory and minor impairments,” the appellate court noted that this exception is an affirmative defense with the burden of proof on the defendant, and not the plaintiff. The court held that the employer had not set forth evidence to establish plaintiff’s shoulder pain was transitory and minor.

Therefore, the appellate court held that Plaintiff had established a genuine issue of material fact as to whether the employer regarded him as having a disability.

The Ninth Circuit further reversed the circuit court’s holding that the plaintiff could not establish his shoulder pain was an actual disability. Specifically, the appellate court found that because plaintiff could neither work nor lift more than 25 pounds nor lift his arm above chest height without pain, he had identified two major life activities affected by his impairment. The court noted an impairment “need not prevent, or significantly or severely restrict the activity” in order to substantially affect a major life activity. Therefore, the court found an issue of fact as to whether plaintiff had an actual disability.

Takeaways for Employers

The protections under the ADA, the ADAAA, and state law are ever-evolving and sometimes nebulous. As disability-related issues continue to increase in the workplace, employers should proceed carefully when considering personnel decisions involving individuals with potential injuries or impairments, as they may meet the “regarded-as” disabled definition. This decision is an important reminder to employers to ensure that any adverse actions taken against such employees are based on legitimate, non-discriminatory and non-retaliatory reasons, and to carefully document the business reasons for those adverse actions.

If you have any questions regarding this area or need assistance evaluating personnel decisions relating to employees with medical afflictions, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Absence Management and Accommodations or Workplace Policies and Handbooks Teams.

 

By Brent I. ClarkJames L. CurtisAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: Last month at the 2018 National Safety Council (NSC) Congress the speakers noted that “safety programs shouldn’t end when employees walk out the door and get into a vehicle to drive.”  The session was presented by Karen Puckett, the Director for the Center for Environmental Excellence Division of Enterprise Development at the University of Texas at Arlington, and Lisa Robinson, Senior Program Manager for Employer Transportation Safety, for the NSC. 

National Highway Traffic Safety Administration statistics provided that in 2017 transportation deaths from crashes were the leading cause of workplace deaths in the USA.  These statistics are often lost on safety professionals because OSHA has no jurisdiction over transportation incidents on public roads.  Additionally, 2016 Bureau of Labor Statistics data show that 40% of employment fatalities were due to transportation incidents.

Puckett noted that the goal for the NSC’s program was to have considered the best practices for employees who drive for work.  This employment-based driving included not just fleet trucks and other vehicles, which are normally considered in company employee driving policies and training programs, but also any personally-owned employee vehicles and rental cars, vans, and other trucks that employees may use while doing company business.  Puckett explained that vehicles outside of the regular company fleet are often overlooked.

Puckett’s key takeaway was that the company’s personnel policy on driving and accident prevention and the related training materials and systems need to incorporate a recognition of these powerful statistics.  Employers need to build a workplace that promotes responsible driver behaviors, maintenance procedures and records, and effective training programs.

Robinson noted that the employer may also face considerable liability for any fatalities that come from employees driving on company business, however that is demanded by state law in the many states and localities the company may operate in.  Perhaps common sense behaviors for employee drivers to know are company policies prohibiting driving impaired by drugs or alcohol, driving while using a cellphone such as checking email, texting, or using the phone.  Many company policies do not incorporate these kinds of prohibitions.

Robinson concluded by illustrating numerous multi-million dollar jury verdicts and settlement agreements where employers were held responsible — even some where the employee was involved in activities or behaviors that some might reasonably suggest were not in the line of their employment.

For your further information, we have previously blogged on these related issues, including Drive Much? NIOSH Focus on Workplace Safety for Employees Who Drive for Their Job, President Declares “National Impaired Driving Prevention Month”, Asleep at the Wheel: Trucking Company’s Sleep Apnea Policy and Procedures Reviewed by Federal Courts, Impact of Driver Compensation on Commercial Motor Vehicle Safety, Eleventh Circuit Finds Insurance Carrier Responsible In Georgia For Harm Done by Intoxicated Employee, Employees Driving In Illinois? What Employers Need to Know, and Distracted Driving Leads to Employee Accidents and Fatalities.

Employer Takaway

For employers the key points from this session are that employee behavior on public roadways could have a big impact on the workplace.  The employer should have appropriate policies and training systems in place as part of a comprehensive safety program, with an aim to “improve your workplace driving safety culture.”

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) or Workplace Policies and Handbooks Teams.

By Paul Galligan and Tara Ellis

Seyfarth Synopsis: Employers Continue to Labor over Pregnancy Accommodations.

Earlier this month, Plaintiff Caroline Ruiz filed suit in the Southern District of New York against her former employer New Avon LLC, contending that Avon failed to accommodate her high risk pregnancy, and instead hastily terminated her employment upon learning she was pregnant. Caroline Ruiz v. New Avon LLC, et al., 1:18-cv-09033. Ruiz, the former Global Head of North America Indirect Procurement at New Avon LLC, contends that she requested to work from home after her doctor recommended bed-rest for a week, because Ruiz had a high risk pregnancy. However, according to Ruiz’s complaint, Avon callously disregarded this recommendation, forced Ruiz to come into the office, and terminated her, due to fabricated performance issues.

The case raises some interesting questions, including, whether a pregnant employee’s request to work from home due to her doctor’s recommendation of bed rest is a reasonable accommodation, and whether the answer to this question changes based upon the nature of the employee’s job, the length of the anticipated bed-rest and the classification of the employee’s pregnancy as high risk.

We will continue to watch this case, and will keep you posted of any developments.

If you have any questions regarding this area or need assistance evaluating whether to grant or deny long-term or indefinite leave requests, please contact the authors, your Seyfarth Attorney, or a member of the Firm’s Absence Management and Accommodations or Workplace Policies and Handbooks Teams.

By Linda Schoonmaker and John P. Phillips

Seyfarth Synopsis: In a recent decision, the Eleventh Circuit Court of Appeals held that the use of the N-Word in the workplace one time is sufficient to trigger a hostile work environment. Additionally, the Eleventh Circuit held that an employer may be held liable for workplace harassment when the plaintiff admitted that she did not complain of harassment until her final day of employment (and when the employer alleged that the plaintiff never complained of harassment). In light of this decision, and in light of the increased focus on workplace harassment over the past year, employers should use this case as an opportunity to review their No Harassment Policies and update their employment law training—to proactively ensure that harassing conduct does not occur in their workplaces.

When faced with allegations of a hostile work environment, employers often rely on two defenses: First, in order to be actionable, a hostile work environment must be both “subjectively” and “objectively” hostile. In other words, the plaintiff must subjectively perceive the harassment to be abusive, and the work environment must be one “that a reasonable person would find hostile or abusive.” Over the years, courts have typically required multiple instances of inappropriate or harassing behavior, in order to meet this standard. Second, if the harassing behavior was committed by co-workers, the plaintiff must have complained of the harassment. In other words, the employer must have knowledge of the harassing conduct (either actual or implied—companies cannot hide their heads in the sand) before it can be held liable.

In a recent decision, however, the Eleventh Circuit Court of Appeals held that use of the N-Word on one occasion could create a hostile work environment, and the Court held that the employer could be held liable even though the plaintiff admitted that she never complained about alleged harassment until (allegedly) right before her termination. (In fact, the company denied that she ever complained at all.)

Given the increased media focus on workplace harassment, this case provides a good opportunity for employers to review their anti-harassment policies and procedures, in order to proactively ensure that harassment-related issues do not proliferate in the workplace.

Background on the Case

In Smelter v. Southern Home Care Services, Inc., the plaintiff had been hired by Southern Home Care Services in July 2013 as a customer service supervisor. As part of her job, the plaintiff was responsible for coordinating with caregivers and clients, scheduling in-home visits, and accurately recording all caregivers’ work time. There was no dispute that the plaintiff required extra training and committed many mistakes during her employment. In September 2013, she was terminated for poor performance, after a final incident in which she got in a heated argument with and yelled at a co-worker. Following her termination, the plaintiff asserted the following allegations:

  • She had endured racist remarks from her co-workers nearly every day during her employment.
  • During the argument with her co-worker on the last day of her employment, her co-worker had called her a “dumb black [N-Word].”
  • Her co-workers had made derogatory comments about black men, black women, President Obama, and compared the plaintiff with a monkey from the movie Planet of the Apes.
  • Her supervisor thought the racist comments were funny.

Although the plaintiff admitted that she had never complained about any of the comments prior to the final incident, the plaintiff alleged that she had told her supervisor about the harassment before she was terminated. Her supervisor claimed that she never complained about any race-related comments, and the plaintiff’s exit interview paperwork—which both the plaintiff and her supervisor signed—had no mention of any harassment-related complaints.

Ultimately, the district court granted summary judgment for the company, finding that the harassment the plaintiff allegedly experienced was not sufficiently severe or pervasive enough to constitute a hostile work environment, as a matter of law, and that the company had no knowledge of the alleged harassment. The plaintiff appealed to the Eleventh Circuit.

The Eleventh Circuit’s Opinion

On appeal, the Eleventh Circuit reversed the district court’s dismissal of the plaintiff’s hostile work environment claim. In doing so, the Eleventh Circuit made two significant holdings:

First, the Court held that even standing alone, the single use of the N-Word was sufficient to constitute severe harassment. The Court explained:

Southern Home argues that [the co-worker]’s “one-time use” of [the N-Word] was insufficient to establish severity as a matter of law. We strongly disagree. This Court has observed that the use of this word is particularly egregious when directed toward a person in an offensive or humiliating manner.

The Court also held that the other comments alleged by the plaintiffs were similarly sufficiently severe to create a hostile work environment, and consequently, the plaintiff had alleged a legally actionable hostile work environment claim.

Second, the Court disagreed with the district court that the employer did not have knowledge of the alleged harassment. Although it was undisputed that the plaintiff failed to report any harassment until the final day of her employment (and the company disputed whether she had even reported it then), the plaintiff had alleged that the racist slurs were “funny to everybody that worked in the . . . office,” including her supervisor. The Court found that this was sufficient evidence to hold that the supervisor had knowledge of the comments, since she could not have found the comments funny if she did not hear them.

Thus, the Court found that the plaintiff had alleged an actionable hostile work environment claim, and it remanded the case to the district court for trial.

Takeaways

In light of this decision and the increased awareness of improper workplace conduct stemming from the #MeToo movement, there are a number of proactive steps that employers can take to help ensure that their companies have the proper culture to avoid harassment complaints and allegations:

  • Review and revise, if necessary, the No Harassment Policy. Most companies have No Harassment Policies (and if your company doesn’t, it should). However, often those policies have not been updated in a number of years. Now is a good time to pull out the policy, review it, and make any necessary updates, including ensuring that there are clear, and multiple, avenues for employees to report harassment.
  • Train your managers and supervisors. Your supervisors are your most effective buffer against employment law-related allegations and lawsuits, and they serve as a conduit between the company and its employees. Managers and supervisors should get regular anti-harassment and other employment-law based training, in order to ensure that they will know when harassment is occurring and will know what to do if they spot inappropriate conduct.
  • Focus on proper documentation. In conjunction with training your supervisors and managers, documentation issues should be covered. To defend any lawsuit, you must have good documentation. Your supervisors should be trained on correctly documenting all employment actions.
  • Promptly investigate and correct any complaints of harassment. Once the company is aware of any improper harassment-related conduct, whether from a direct complaint or an observation in the workplace, the company must take prompt and appropriate action. In doing so, it is important to take all allegations and complaints of harassment in the workplace seriously, immediately perform a thorough and complete investigation of any harassment complaints, and implement swift, appropriate, and proportional remedial action, if necessary, including possible termination or suspension.

Over the past year, workplace harassment issues have increasingly grabbed headlines. While all employers can agree that use of the N-Word is especially egregious, employers must take steps to ensure that such conduct does not occur. More importantly, employers must ensure that they have the policies and procedures in place to prove that such conduct did not occur. This means having an up-to-date No Harassment Policy, and supervisors and managers who are well-trained on anti-harassment and proper investigation methods. By proactively addressing any workplace harassment issues head-on, employers can put themselves in the best possible position to defend any subsequent lawsuit.

By Anne R. DanaNila Merola, and Robert S. Whitman

Seyfarth Synopsis: In compliance with legislation passed earlier this year, New York State has released the final model sexual harassment policy and complaint form, the model training materials, and FAQs, which provide further guidance regarding the legislation. Two significant clarifications to the draft guidance issued several weeks ago are (1) the deadline for completion of employee anti-harassment training is October 2019, not January 2019, and (2) new employees must receive training “as soon as possible,” rather than within 30 days of hire.

Earlier this year, New York State enacted comprehensive legislation targeting workplace sexual harassment. Our previous Management Alerts outlining the various requirements under the law are linked here and here. On August 23, 2018, Governor Andrew Cuomo released a draft model policy and draft model internal complaint form, a draft training script, and draft FAQs. All of those draft documents were subject to public comment. On October 1, 2018, the State issued the final documents. This Alert highlights the key differences between the drafts and the final versions and consolidates the new requirements under the State law in one place.

As background, the law requires the Department of Labor and Division of Human Rights to create a model sexual harassment prevention policy and a model sexual harassment prevention training program. Those agencies have now done so: the model policy and the model training program is available here. Employers must either adopt the model policy and training program, or establish a policy and training program that equals or exceeds the minimum standards provided by the models. The sexual harassment policy must also include a complaint form for employees to report internally alleged incidents of sexual harassment (the model is available here). Below are further details about these requirements.

Policy and Complaint Form

Beginning on October 9, 2018, all employers must distribute to all New York State employees a sexual harassment prevention policy and a complaint form that employees can use to report inappropriate conduct.

For employers that opt to create their own policies, the policy must: (1) prohibit sexual harassment consistent with guidance issued by New York State; (2) provide examples of conduct that constitutes sexual harassment; (3) clearly state that sexual harassment is considered a form of employee misconduct and that disciplinary action will be taken against individuals engaging in sexual harassment and against supervisors or managers who knowingly allow such behavior to continue; (4) clearly state that retaliation against individuals who complain of sexual harassment or who testify or assist in any investigation or proceeding involving sexual harassment is unlawful; (5) include an internal complaint form that employees can use to report conduct that they believe is sexual harassment; (6) explain that complaints of sexual harassment will be investigated promptly and that the investigations will be as confidential as possible and that the rights and interests of all parties will be protected; (7) include information concerning the federal and state laws that prohibit sexual harassment, remedies available to victims of sexual harassment, and a statement that there may be applicable local laws; and (8) inform employees of their right to file a complaint with the New York State Division of Human Rights, the Equal Employment Opportunity Commission, federal or state court, or a local police department.

The final FAQs (available here) offer additional guidance for employers. Specifically,

  • Distribution: The policy must be provided to employees in writing or electronically. If the policy is made available on a work computer, employees must be able to print a copy.
  • Contractors & Non-Employees: The policy does not have to be distributed to contractors and other non-employees. However, because the State Human Rights Law has been extended to cover non-employees who bring sexual harassment claims, employers are “encouraged” to provide the policy to non-employees and anyone providing services in the workplace.
  • Complaint Form: The complaint form does not need to be included in full in the policy, but the policy should be clear about where the form may be found (g., on an internal website).
  • Investigation Procedure: The policy must describe the employer’s internal investigation procedure. The investigation procedure does not, however, have to be identical to the investigation procedure set forth in the State’s model policy.
  • Acknowledgment of Receipt: Employers are not required to obtain or keep a signed acknowledgment that an employee has read the policy, but are encouraged to do so.
  • Languages: The policy must be provided to employees “in the language spoken by their employees.” The State will publish additional model policy and complaint forms in Spanish, Chinese, Korean, Bengali, Russian, Italian, Polish and Haitian-Creole. When a model is not available in an employee’s language, employers may provide that employee with an English version.
  • New Employees: New employees should receive a copy of the policy prior to commencing work.
  • Optional Poster: The State also issued an optional Sexual Harassment Prevention Policy Notice, which is a poster that employers may display in the workplace. The poster simply directs employees and non-employees to the employer’s sexual harassment prevention policy. Posting the State’s Notice is optional. A Microsoft Word version is available here.

Training

The New York State law also requires employers to provide all employees with annual, interactive sexual harassment prevention training. In a key difference between the draft and the final FAQs, the deadline for complying with the training requirement has been extended to October 9, 2019 (previously, it was January 1, 2019). Moreover, employers are no longer required to train new employees within 30 days of hire, but rather are encouraged to provide training “as soon as possible.” The practical effect of these changes is that many employers will likely want to wait to conduct sexual harassment training until after the New York City law goes into effect on April 1, 2019. Our prior Alerts on the New York City law are available here and here.

For employers that choose to create their own training rather than adopt the State’s model, the training must be interactive and include all of the following: (1) an explanation of sexual harassment consistent with State guidance; (2) examples of conduct that is considered unlawful sexual harassment; (3) information about federal and state laws covering sexual harassment and available remedies; (4) information regarding the employer’s procedure for the timely and confidential investigation of complaints, including the specific name(s) of appropriate personnel and location to submit complaints; (5) information addressing supervisor conduct and additional responsibilities of supervisors; (6) an explanation of how to raise sexual harassment complaints with government agencies and courts; and (7) prohibitions on retaliation with examples.

Additional guidance as set forth in the final FAQs regarding sexual harassment training is as follows:

  • Annual: Employees must receive training annually, which can be based either on the calendar year, anniversary date of each employee’s start date, or any other date the employer chooses.
  • Who must be trained: All workers, regardless of immigration status, including exempt and non-exempt employees, part-time workers, seasonal workers, and temporary workers, must be trained. Non-employees, such as third-party vendors, contractors, volunteers, or consultants do not need to be trained. Employers may deem the training requirement satisfied for new employees who received compliant training from a prior employer in the past year if the new employee can verify completion through a previous employer or a temporary help firm.
  • Interactive: The FAQs offer the following examples of trainings that would meet the “interactive” requirement: (i) if the training is web-based, it has questions at the end of a section and the employee must select the right answer; (ii) if the training is web-based, the employees have an option to submit a question online and receive an answer immediately or in a timely manner; (iii) for in-person training, if the presenter asks the employees questions or gives them time throughout the presentation to ask questions; and (iv) the training provides a Feedback Survey for employees to turn in after they have completed the training. An training in which the individual only watches a video or reads a document, with no feedback mechanism or interaction, is not considered interactive.
  • Languages: Employers must provide training to employees “in the language spoken by their employees.” The State will publish model training materials in Spanish, Chinese, Korean, Bengali, Russian, Italian, Polish and Haitian-Creole. When a model is not available in an employee’s language, employers may provide that employee with training in English.
  • Records: Employers are not required to maintain copies of training records, but are encouraged to do so.
  • Duration: There is no specific time requirement for the length of the training.
  • Time and Payment for Training: Any training time must be counted as regular work hours.

Non-Disclosure Agreements Involving Claims of Sexual Harassment

As of July 11, 2018, New York employers have been prohibited from including an NDA in any settlement of a claim involving sexual harassment that would prevent the person who complained from disclosing the underlying facts and circumstances of the harassment, unless the complainant requests confidentiality.

The final FAQs clarify that the law will not operate like the analogous provisions of the Older Workers Benefit Protection Act. Specifically, waivers cannot be included in settlement agreements that can be presented and executed on the spot in a single document. Rather, if the complainant requests confidentiality, the terms must first be provided to all parties; the complainant must have 21 days to consider the provision; and, after 21 days, if confidentiality is still the complainant’s preference, the provision must be memorialized in a separate agreement signed by all parties. The complainant then has 7 days to revoke the agreement, which shall not be effective or enforceable until the revocation period expires. The 21-day review period is not waivable, so it cannot be shortened, even if the complainant so desires. The FAQs also clarify that there must be two agreements: (1) an agreement that memorializes the preference of the person who complained, and (2) the settlement agreement itself.

As always, Seyfarth Shaw attorneys are available to assist with any questions or concerns you have regarding the New York State Sexual Harassment Laws.

By Honore Hishamunda and Alex S. Drummond

Seyfarth Synopsis: Employers face a tough challenge in trying to balance their obligations under the ADA with efforts to enforce workplace rules. A recent decision out of the United States Court of Appeals for the Sixth Circuit, however, highlighted how employers can get that balance right.

The Americans with Disabilities Act (ADA), among other things, requires employers to provide reasonable accommodations to employees qualified to perform the essential functions of their jobs and prohibits employers from retaliating against employees for exercising their rights under the ADA. But what if, in the midst of attempting to comply with these obligations, employers have to enforce workplace rules against someone requesting a reasonable accommodation? A recent Sixth Circuit Court of Appeals decision – McDonald v. UAW-GM Center for Human Resources – highlighted how, with care, employers can balance these seemingly competing goals.

The plaintiff in the case was a receptionist, a union member, and suffered from a genetic disorder which, with the employer’s permission, she took time off from work to treat. During plaintiff’s time with the employer, the operative CBA required employees to take lunch breaks no earlier than 11:00 a.m., and to, once a year, select either a half-hour lunchbreak with separate additional 15-minute breaks or an hour long lunch break. Plaintiff, despite these policies and despite choosing a half hour break, began leaving for the gym at 10:30 a.m. and tacking on her 15-minute breaks to essentially take an hour long break. In addition, plaintiff was accused of sexually harassing another co-worker.

In the midst of the employer’s sexual harassment investigation, plaintiff asked if she could either switch to an hour long break or tack on breaks in order to continue to work out as it helped with the pain from her previous surgeries. Her supervisor rejected this request citing the CBA’s rules, and offered plaintiff the option of arriving early in the mornings to work out. In addition plaintiff’s supervisor warned plaintiff that continued violation of the early or extend lunch break policy could result in disciplinary action.

Plaintiff rejected her supervisor’s compromise, and contacted the company’s personnel manager regarding her requests, this time providing a doctor’s note stating that plaintiff needed to exercise daily for 30 to 60 minutes. The personnel manager stated that the request would need approval from other members of management. However, while plaintiff’s request was being processed and on the same day she received an update regarding the same, plaintiff left early to go to the gym without authorization. Plaintiff was caught and eventually suspended for violating workplace rules. Plaintiff never returned to work and instead took personal leave before submitting her voluntary resignation. The time between her initial accommodation request and her resignation was less than 2 months.

Plaintiff sued claiming a failure to accommodate. Further, plaintiff alleged that her employer suspended her in retaliation for requesting a reasonable accommodation, or, alternatively, that she was constructively discharged. The Sixth Circuit, affirming the District Court, granted employer’s motion for summary judgment on each of plaintiff’s claims.

The Sixth Circuit held that the employer met its obligations to reasonably accommodate plaintiff. Specifically, the court found that the employer listened to plaintiff’s initial request for an accommodation, provided alternatives, again listened to plaintiff’s second request for an accommodation, and was unable to process the request because plaintiff resigned. In doing so, the court noted that, in the ADA context, (i) an employer’s minimal delay due to internal processing or events outside of its control does not an ADA violation; (ii) an employer is not required to provide a specific accommodation if it identify other reasonable accommodations; and (iii) when an employee quits before their accommodation request is resolved, the employee, and not the employer, is typically at fault for the interactive process breaking down.

In addition, the Sixth Circuit held that the employer did not retaliate against plaintiff for asserting her ADA rights. Specifically, the court found that plaintiff was not retaliated against because she was suspended for violating workplace rules, not for requesting reasonable accommodations. In doing so, the court noted that an employee must show that their protected activity was the “but-for” cause of any adverse action. Further, the court found that plaintiff, and other employees, cannot make such a showing where “an intervening legitimate reason to take an adverse employment action [like insubordination] dispels an inference of retaliation based on temporal proximity.”

The Sixth Circuit also held that the employer did not constructively discharge plaintiff. Specifically, the court found that plaintiff’s complained of treatment – the employer investigating her for alleged sexual harassment, declining her preferred accommodation, and suspending her for insubordination – did not support her constructive discharge claim. In doing so, the court noted that a constructive discharge claim “is hard to prove” and requires a showing that “working conditions were objectively intolerable and that [the] employer deliberately created those conditions in hopes that they would force [the employee] to quit.” Further, the court noted that, in the instant case, plaintiff’s suspension was related to her “deliberate insubordination” and her investigation was “management simply… responding to a workplace complaint” such that “no reasonable jury could find that [employer] hoped [plaintiff] would quit because of these preferred reasons.”

This decision highlights that, even when wrestling with their obligations under the ADA context, employers may and should enforce workplace rules.

If you have any questions regarding this area or need assistance evaluating whether to grant or deny long-term or indefinite leave requests, please contact the authors, your Seyfarth Attorney, or a member of the Firm’s Absence Management and Accommodations or Workplace Policies and Handbooks Teams.

By Jade M. Gilstrap and Alex S. Drummond

Seyfarth Synopsis: The D.C. Circuit recently revived a single-leg amputee’s claim that his former employer failed to accommodate his disability by refusing his request for a classroom aide. In reversing the lower court’s decision in part, the two-member panel found triable issues of fact existed regarding whether forcing the plaintiff to work with pain, when that pain could have been alleviated by his requested accommodation, violated The Americans with Disabilities Act (ADA).

Case Background

In Hill v. Associates for Renewal in Education, Inc., No. 15-7064 (D.C. Cir. 2018), the plaintiff, who wore a leg prosthesis, worked as a teacher and program aide for Associates for Renewal in Education, Inc. (“ARE”). Throughout his employment, Hill worked in a three-story building with no elevator and was responsible for instructing participants in the classroom, on field trips, and during outside activities; overall classroom management; counseling participants on academic and behavioral challenges; and providing administrative and/or clerical support to administrative personnel.

A year and a half before his termination, Hill injured his amputated leg and damaged his prosthesis while walking across ARE’s playground, which resulted in him experiencing severe pain and bruising after standing for long periods of time. As an accommodation, he requested and was assigned a classroom aide and was permitted to hold his classes on the second floor of the building.

A couple of months later, ARE reassigned Hill to a classroom on the third floor. Unlike the other teachers in his program, Hill was not assigned a classroom aide, despite having the largest classroom size among his peers. According to Hill, he contested the reassignment and requested to be moved back to a lower floor and with a teacher aide, but to no avail. Around the same time, Hill began to have disciplinary issues at work and was subsequently terminated.

Hill subsequently filed a pro se complaint against ARE alleging, inter alia, claims for disability discrimination and hostile work environment based on the non-profit’s denial of his requests for a classroom aide and to be reassigned to a classroom on a lower floor. The D.C. District Court denied summary judgment on Hill’s claim for failure to accommodate based on ARE’s refusal to assign him to a lower floor, but granted summary judgment on his claims for hostile work environment and failure to accommodate his request to be assigned a classroom aide. Specifically, with respect to his request for a classroom aide, the district court concluded that Hill “had not adduced any evidence to show that an [a]ide would have been an effective means of addressing the limitations imposed by his amputated leg,” despite Hill’s insistence that the aide was necessary because his disability substantially limited his ability the perform the essential functions of his job “without pain and bruises,” which required walking long distances, standing for long periods of time, and climbing consecutive flights of stairs.

Hill appealed. The Circuit court affirmed in part and denied in part.

The D.C. Circuit Court’s Reasoning

The D.C. Circuit Court concluded that the district court was right to grant summary judgment on Hill’s hostile work environment claim (agreeing that even if ARE had denied Hill a classroom aide and failed to assign him to a lower floor, such behavior did not amount to the type of “extreme” conditions sufficient to constitute a hostile work environment), but wrong to say that Hill had not proffered sufficient evidence for a reasonable jury to conclude that ARE violated the ADA when it refused his request for a classroom aide.

To prevail on a failure-to-accommodate claim brought under the ADA, a plaintiff is required to show that: 1) he suffered a qualifying disability, 2) his employer knew about the disability, 3) he could perform the essential functions of his job, with or without a reasonable accommodation, and 4) his employer refused to make the accommodation. An accommodation is only reasonable under the ADA if it “relate[s] to the disability that creates the employment barrier and, in fact, “address[es] that barrier.”

The Court found that Hill—who alleged he experienced “a hazard of pain and bruising” while standing for long periods of time, pain that resulted from him having to supervise his class without assistance from a classroom aide— had satisfied his burden of sufficiently connecting his disability with his request for a classroom aide and the assistance the aide could provide him in performing the essential functions of his job. The Court, however, found unpersuasive ARE’s argument that Hill did not need the accommodation of a classroom aide because he could perform the essential functions of his job without accommodation, albeit with a lot of pain, and, instead, held that “[a] reasonable jury could conclude that forcing Hill to work with pain when that pain could be alleviated by his requested accommodation violates the ADA” and that “if ARE [had] provided Hill a classroom aide as it did for his colleagues, that aide could help Hill supervise students in the classroom and during outdoor activities, reducing his need for prolonged standing and mitigating the alleged ‘hazard of pain and bruising.’”

While the Court expressed no opinion about whether the classroom aide would have, in fact, constituted a reasonable accommodation for Hill’s disability—leaving that for the jury to decide—it reminded employers and employees, alike, that while “the ADA does not make employers responsible for alleviating any and all challenges presented by an employee’s disability… an employer may be required to accommodate an employee’s disability by ‘reallocating or redistributing nonessential, marginal job functions,’ or by providing an aide to enable the employee to perform an essential function without replacing the employee in performing that function.”

Takeaways for Employers

The ADA continues to be a significant area of liability for employers, as disability-related issues continue permeating today’s workplace. The D.C. Circuit’s decision stands as a reminder to employers to carefully assess the reasonableness of an employee’s request for an accommodation and to strongly consider such requests in the absence of undue hardship. Employers should take care to remember that the “reasonableness” of any request for an accommodation will necessarily depend on the specific circumstances which must be evaluated on a case by case basis. The mere fact that a disabled employee can perform the essential functions of his or her job, albeit with pain or discomfort, may not, by itself, be sufficient to deny that employee a reasonable accommodation.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of the Firm’s Absence Management and Accommodations or Workplace Policies and Handbooks Teams.