Mission Impossible: 11th Circuit “Clarifies” Comparator Standard

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The Eleventh Circuit recently tried to “clarify” when a comparator is “similarly situated” to other employees.

What does it mean for something or someone to be “similar”? That was the existential question recently confronted by the Eleventh Circuit Court of Appeals in a race discrimination case: Lewis v. City of Union City, No. 15-11362, 2019 WL 1285058 (11th Cir. Mar. 21, 2019.) In particular, the Court was concerned with comparators in discrimination cases.

In a typical discrimination case, an employee in a protected class (race, gender, disability, age) will claim that another employee, outside the protected class, was treated better. For example, a female employee who was terminated for tardiness will claim that a male employee was tardy but not fired. In legal jargon, the male employee is considered a “comparator.”

But, comparators need to be similar. A business can have legitimate reasons for excusing the tardiness of a high-level, salaried manager, but not a lower-level, hourly employee. I have discussed the importance of comparators in other discrimination cases Here and Here.  Courts can’t compare “apples and oranges.”  So, Lewis is an effort by the Eleventh Circuit to provide lower courts with a better analysis for reaching an “apples to apples” comparison.

The United States Supreme Court has previously held that comparators must be “similarly situated.”  But, the Eleventh Circuit, and other courts, have struggled with question of just how “similarly situated” a plaintiff and her comparators must be.  Different groups of Judges in the Eleventh Circuit have announced different standards to the point that the Lewis court concluded:  “It’s a mess.”

Therefore, the Court announced a new standard to be used in all cases going forward:  a plaintiff and her proffered comparators must be “similarly situated in all material respects.”  Great!  But, what does that mean?

At one point in the opinion, the Court suggests that “essential sameness” is a requirement.  Yet, the Court also states that the standard “must be worked out on a case-by-case basis.”  The Court also identifies four “sorts of similarities” that will underlie a valid comparison:

  1.  The compartor will have engaged in the same basic conduct (or misconduct) as the plaintiff.
  2. The comparator will have been subject to the same employment policy, guideline or rule as the plaintiff.
  3. The comparator will ordinarily (although not invariably) have been under the jurisdiction of the same supervisor as the plaintiff.
  4. The comparator will share the plaintiff’s employment or disciplinary status.

The Lewis Court concludes by stating that “a valid comparison will turn not on formal labels, but rather on substantive likenesses.”  Moreover, “comparators must be sufficiently similar, in an objective sense, that they ‘cannot be reasonably distinguished.'”

So, what does this mean for Alabama employers?  Generally, I think this standard is good for employers.  By using phrases like “substantial sameness” and “substantive likenesses,” the Court appears to be signalling that the standard for similarity is high.  Nevertheless, the new standard is not effective in helping employers in determining “how high” the bar is.  I feel that, in many ways, we are left with Justice Potter Stewart’s famous saying:  “I know it when I see it.”  As a result, employers in Alabama and the rest of the Eleventh Circuit must simply do their best while the Eleventh Circuit continues to flesh-out the standard on a “case-by-case” basis.

 

 

Employment Law, Sexual Harassment, and a Piping Hot Cup of Tea

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Sexual consent can be comparable to tea. The tea video isn’t a great source for sexual harassment training, but does remind employees that a past relationship does not justify ongoing sexual advances.

Apparently, I live in a cave.  I was at a dinner party last week, and everybody started talking about “The Tea Video.”  I was oblivious.

I was quickly informed that one of the largest employers in North Alabama recently made their workforce watch “The Tea Video.”  Employees were told that the video was required as part of sexual harassment training.  You may have already seen this video.  My wife was quite familiar with it, and told me that it made the rounds on social media at some point in the past.  The purpose of the video is to educate the masses on the concept of sexual consent in a relationship.  For those who are likewise ignorant, here’s the video:

From a mass marketing perspective, this video is perfect.  It’s short, simple, funny and gets its point across.  Nevertheless, I don’t think it’s a great source for sexual harassment training.  Consent can be one factor to consider in a sexual harassment claim.  But, the two most important factors that an employer must stress in training are:  (1) sexual harassment will not be tolerated; and, (2) employees should immediately report any conduct that they believe is sexual harassment.

Employers should try to discourage sexual relationships between employees as much as possible.  In fact, some employers have “no fraternization” policies.  There are pluses and minuses to such policies.  If co-workers are in a sexual relationship, the Tea Video might provide some assistance to prevent future sexual harassment claims.

Many sexual harassment claims arise from failed relationships.  Jilted lovers  continue to make advances at work, and even pursue their love interest at home.  Persistent sexual advances after the end of a relationship can lead to a sexual harassment claim.  Thus, the Tea Video provides some assistance in the sexual harassment area by reminding employees that a past relationship cannot serve as the basis for continuing to pursue a love interest.

Enjoy the video.  And, on cold winter days, enjoy a piping hot cup of tea!

 

Federal Courts Frown on “Shotgun Pleading.”

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“Shotgun Pleading” creates problems in employment litigation.

As I drafted today’s post, a couple of colloquialisms came to mind.  First:  “Shoot first and ask questions later.”  Second:  “Sometimes, less is more.”  Federal judges are more fond of the second saying.  Frequently, lawyers file complaints (the document that starts a lawsuit) in a broad manner — including all possible facts and all possible claims — without specifying which facts apply to which claims.  In the legal profession, this is called “shotgun pleading.”  Federal judges don’t like shotgun pleading and two of our judges in the Northern District of Alabama recently entered decisions related to shotgun pleading.

In Roney v. City of Huntsville, No. 5:18-cv-1482-CLS, 2018 WL 632483 (N.D. Ala. Dec. 4, 2018), Senior United States District Court Judge C. Lynwood Smith, Jr. provided a synopsis of the different types of shotgun pleading:

  1.  A complaint containing multiple counts/claims, where each count adopts the allegations of preceding counts.  This is a well-worn practice in Alabama, and I think it evolves from fears that a lawyer doesn’t want to accidentally omit something from a claim.  So, the lawyer will start each claim in a complaint with something like:  “Plaintiff incorporates all of the allegations and pleadings in the preceding paragraphs as if set forth fully herein.”
  2. A complaint “replete with conclusory, vague, and immaterial facts not obviously connected to any particular cause of action.”
  3. A complaint which fails to separate into a different count/claim each cause of action or claim for relief.
  4. A complaint which asserts multiple claims against multiple defendants, but fails to specify which defendants are responsible for which acts or omissions, or against which of the defendants the claim is brought.

Roney is a Title VII action in which Judge Smith granted a motion to dismiss the employee’s shotgun pleading.  He concluded that the complaint fell into the first and second types.  Most particularly, Judge Smith faulted conclusory pleading such as:  “she was subjected to a sexually hostile work environment by her supervisor ….”  Roney, 2018 WL 6326483 at *4.  It appears that a better pleading would have identified the specific actions of the supervisor that amounted to a hostile work environment.  While Judge Smith granted the motion to dismiss, he also gave the employee an opportunity to file a subsequent complaint that would not contain the same defects.

Judge Annemarie Carney Axon also found that the employee filed a shotgun pleading in Hawkins v. Holy Family Cristo Rey Catholic High School, No. 2:18-cv-00638-ACA, 2018 WL 6326485 (N.D. Ala. Dec. 4, 2018).  She found that the complaint filed by the employee in that Title VII case was a Type 1 and 3 shotgun pleading.  Nevertheless, she continued to review the complaint and found that a partial dismissal was warranted.

Employment litigation is a specialized field and litigating in federal court requires precision.  The Roney and Hawkins cases demonstrate that a lack of precision, and reliance upon a shotgun approach, can be detrimental to an employee’s case.

 

Is Your Christmas Party a Form of Religious Discrimination?

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Christmas celebrations can cause legal problems for employers.

Merry Christmas!!  December 25 is just around the corner.  Many employers hold a Christmas party to celebrate this time of the year.  But, not all employees are Christians.  Many don’t celebrate Christmas.  Could your Christmas party be a form of religious discrimination?

In summary, Title VII of the Civil Rights Act of 1964 prohibits discrimination in the workplace on the basis of religion. The word “religion” in Title VII includes “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate an employee’s … religious observance or practice without undue hardship on the conduct of the employer’s business.”  42 U.S.C. § 2000e(j).  Therefore, an employer has a statutory obligation to make reasonable accommodation for the religious observances of its employees, short of incurring an undue hardship.  Walden v. Ctrs. for Disease Control & Prevention, 669 F.3d 1277, 1293 (11th Cir. 2012).

Generally, my advice is to make sure employees enjoy the holidays and Christmas celebrations.  You won’t violate Title VII merely by having a Christmas party.  But, you get closer to trouble if you require employees to attend a Christmas party, or take action against them because of their refusal to participate in Christmas activities.  If an employee has a reasonable religious objection to a holiday activity, try to work with them to resolve their objections and accommodate their beliefs.  If their religious objection puts an undue burden on your business, call your lawyer before taking any specific action.  Following is a discussion of a few cases involving allegations of religious discrimination at Christmas.

Close to home is the decision in Chandler v. Infinity Ins. Group, No. 2:12-cv-2870-TMP, 2014 WL 2547826 (N.D. Ala. Jun. 4, 2014).  In Chandler, the employee was a Jehovah’s Witness.  She alleged that her employer discriminated against her by forcing her to attend a Christmas party in violation of her religious beliefs.  Magistrate Judge T. Michael Putnam dismissed the employee’s claim, however, because she never informed anybody that attending a holiday party would conflict with her sincerely held religious beliefs.

A slightly different fact situation was presented in Mitchell v. American Eagle Airlines, Inc., No. 15-757-SDD-RLB, 2017 Wl 2588597 (M.D. La. Jun. 14, 2017).  In Mitchell, a Jehovah’s Witness employee claimed that she suffered religious discrimination when her employer made her work after she refused to attend a Christmas party.  The trial court dismissed that claim, primarily because the employee failed “to demonstrate how working during a Christmas party is a cognizable adverse employment action under the law.”

At least one court has found that an employer may refuse an employee’s request to attend Christmas social gatherings — even when those gatherings are closely tied to Christmas mass.  See Duran v. Select Medical Corp., No. 08-cv-2328-JPM-tmp, 2010 WL 11493117 (W.D. Tenn. Mar. 19, 2010).  In Duran, the employee was scheduled to work as a charge nurse on Christmas day.   She made multiple requests to be off-work that day, including a letter to the CEO that concluded:  “I would like to remind you that I and my family are Catholic and Christmas day is a very special holy day for us.”  Despite those requests, the employee was still required to work on Christmas day.  The evidence showed that the employee celebrated Christmas mass from midnight to 1:00 a.m. on December 25.  Then, she participated in a family meal and exchange of gifts at home until approximately 5:00 a.m.  She was required to be at work at 7:00 a.m.  The Court concluded that “the family meal and gift exchange that followed Christmas Mass are not religious practices or observances protected by Title VII.  …. Title VII does not protect purely social events.”  The Court found that attendance at Christmas Mass is a protected religious observance, but there was no conflict between a mass that ended at 1:00 a.m. and a work schedule beginning at 7:00 a.m.

In at least one case, an employer was required to endure a trial to decide whether an employee was compelled to wear a Santa hat during the holiday season.  Velez-Sotomayor v. Progresso Cash & Carry, Inc., No. 01-1678, 279 F.Supp.2d 65 (D.P.R. 2003).  The employer required all employees to wear Christmas hats, and the employee refused because of her Jehovah’s Witness beliefs.  The employer then suspended her with pay during the Christmas season.  The employer’s main defense was that the employee could not explain why wearing a Christmas hat violated a sincerely held religious belief.  The trial court found that a jury should resolve that issue.

I hope that all of your days are merry and bright during this Holiday Season!!

 

 

 

Does a Termination to Avoid “Racial Tension” Violate Title VII?

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Arguably, a termination to avoid racial tension could violate Title VII of the Civil Rights Act of 1964.

This is not a post about race relations in America.  Instead, this post is focused on the following issue:  What happens if an employer terminates an employee to avoid racial tension caused by  that employee’s conduct?

That was one of the underlying issues in Burton v. Gwinnett County School Dist., No. 18-10904, 2018 WL 6259631 (11th Cir. Nov. 28, 2018).  Lauri Burton was a Principal at B.B. Harris Elementary School in the Gwinnett County School District.  She is white.  She and two African-American Assistant Principals removed a disruptive African-American student to a conference room.  The student then repeatedly slammed a chair against a wall, causing a small indentation.  When Burton met with the student’s family, she lied and claimed that the student made a hole in the wall.  After that meeting, Burton ordered one of the Assistant Principals to take a hammer and make a hole in the wall.  She then e-mailed pictures to the student’s family.

When Burton’s actions were discovered, she was terminated from employment by the system’s Superintendent.  After she was terminated, an Associate Superintendent told Burton:  “This could look like you framed children.  This is a little black boy.  This is two black APs.”  Additionally, the School District submitted a report to the Georgia Professional Standards Commission.  In the course of making that report, the District’s Executive Director of Human Resources and Staffing made statements to an investigator indicating that concerns about race relations in the community were a factor.

Burton sued under Title VII of the Civil Rights Act of 1964 claiming that her race was a factor in termination of her employment. Her lawsuit was a “mixed motive” claim.  Burton effectively acknowledged that her actions were improper but argued that race was also a factor in the termination decision.  Without any discussion, the Eleventh Circuit appeared to assume that Burton might be able to succeed on a mixed motive theory — if she could prove that avoiding racial tension motivated her termination.

But, the court sidestepped the issue by finding that Burton provided no evidence regarding the Superintendent’s motives.  The Superintendent was the decision-maker, and the Superintendent denied that race was a factor.  Burton’s evidence consisted solely of statements made by non-decision-makers after the termination decision.  Thus, the court found that she could not meet her burden of proving that race motivated her termination.

But, what if the Superintendent made the statements?  What if an admitted reason for termination was to avoid the potential for racial tension in the community?  Could Burton have succeeded in her race discrimination claim?

I did some quick, but by no means exhaustive, research and I could not find any other cases discussing termination of employees as part of an effort to avoid racial tension.  Title VII expressly prohibits termination “because of” an employee’s race.  See 42 U.S.C. § 2000e-2.  And, in a mixed-motive case, the employee only must show that race was “a motivating factor” for the employer in making the employment decision.  At least one Eleventh Circuit case holds that a employee can “succeed on a mixed-motive claim if she demonstrates that ‘discriminatory input,’ such as [race or gender] bias, factored into the board’s ‘decisional process.'” Quigg v. Thomas Cty. Sch. Dist., 814 F.3d 1227, 1241 (11th Cir. 2016)

In short, I think that an employee like Ms. Burton could at least make an argument that Title VII forbids termination where a motivating factor is avoiding racial tension.  Under that argument, Ms. Burton would show that race factored into her employer’s decisional process.  A counter-argument would stress that racial bias is the deciding factor — not merely the presence of race.  While race relations in the workplace or the community were considered, the employer will argue that it was not biased against Ms. Burton because of the color of her skin.  Instead, it acted to avoid discord.

I wouldn’t want to be the Judge deciding that case, and I wouldn’t want to be the employer being sued for such a claim.  Therefore, my advice is to avoid even the suggestion that race plays any role factor whatsoever in an employment decision.

Every Wrong Does Not Create a Legal Right

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Employees who have been “done wrong” do not automatically have a legal right to sue their employers.

In preparing for today’s blog post, I tried to figure out a way to incorporate the lyrics from:  “If Loving You Is Wrong, I Don’t Wanna Be Right.”  I couldn’t do it.  Instead, the real message of today’s post is a maxim that I learned back in law school:  “The law does not provide a remedy for every wrong.”  In other words, an employee who has been “done wrong” does not automatically possess a legal right to sue his employer.   Two Alabama employees recently learned that lesson when they tried to sue their employers for discrimination.

In Stubbs v. Compass Bank, No. 2:18-cv-00661-RDP, 2018 WL 5084860 (N.D. Ala. Oct. 18, 2018), Pamela Stubbs sued Regions Bank for gender discrimination because she was “treated differently and dealt with more harshly than one of her male coworkers.”  At the time of her lawsuit, she remained a current employee of Regions. Nevertheless, she was suing because she took sick leave, and then was “pulled into meetings” about her attendance, but a male employee was not subjected to scrutiny for his sick leave.  United States District Judge David Proctor found that Ms. Stubbs’s allegation did not satisfy a crucial requirement of a gender discrimination claim:  an “adverse employment action.”  Title VII of the Civil Rights Act of 1964 only provides a remedy to employees who suffer “a serious and material change in the terms and conditions, or privileges of employment.”  Generally, there must be “a significant change in employment status such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.”  Judge Proctor found that getting “pulled into meetings” did not satisfy that standard.

Magistrate Judge John Ott reached a similar conclusion on Martinez v. City of Birmingham, No. 2:18-cv-0465-JEO, 2018 WL 5013861 (N.D. Ala. Oct. 16, 2018).  In that case, Randy Martinez sued under Title VII for race and national origin discrimination.  His claim was based upon a litany of conduct, including: (1) unjust discipline by placing a letter of reprimand in his employee file; (2) transfer or reassignment to different departments within a short amount of time; (3) working in an area segregated/isolated from other employees; (4) failure to train and/or offer the Martinez continuing education opportunities; (5) unreasonable workload expectations; and (6) falsely investigating Martinez for failure to follow rules and regulations.  Judge Ott noted that “not all conduct by an employer negatively affecting an employee constitutes an adverse employment action capable of supporting liability under Title VII.”  He then reviewed Mr. Martinez’s allegations and concluded that none of the “wrongs” gave him a legal right to sue under Title VII.

The Stubbs and Martinez decisions don’t give employers carte blanche authority to treat their employees like dirt.  From a practical perspective, employers should want their employees to have some level of job satisfaction.  From a legal perspective, Stubbs and Martinez also demonstrate that employers can get sued for differential treatment, and spend legal fees defending that treatment, even if they ultimately win.  So, the true lesson to be learned is:  treat your employees right, and  you hopefully won’t get sued.  But, if an employee sues you just for being “done wrong,” you will probably have a good defense.

 

 

An Employee’s Insistence on Enforcing “Rules” Can Be Insubordination.

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Employees who disregard workplace directives in favor of their interpretation of the “rules” may be insubordinate.

I frequently encounter employees who think that workplace rules make them bulletproof.  Usually, these employees have memorized their employer’s handbook and know it better than the Human Resources staff.  They then insist that any workplace action must be taken in compliance with the “rules.”  And, they think that any action which contradicts the “rules” must be invalid.  One employee recently learned the hard way that his insistence upon the “rules” amounted to insubordination, which justified termination of his employment.  Veasy v. Sheriff of Palm Beach County, No. 17-13174, 2018 WL 3868674 (11th Cir. Aug. 14, 2018).

Wilbur Veasy was employed as a corrections officer by the Palm Beach County Sheriff for 25 years.  Over the course of those 25 years, he was written-up for insubordination six times.  He is African-American.  On February 5, 2013, Mr. Veasy was directed to submit to a random urine drug screen.  In accordance with written policy, Mr. Veasy appeared at the Sheriff’s Internal Affairs Office to submit his urine sample.  But, despite the language of the written policy, the Sheriff’s Office had not accepted urine samples at Internal Affairs for more than four (4) years.  Thus, upon arrival, Mr. Veasy was directed to drive his personal car to a third-party contractor’s office to submit a sample.

Mr. Veasy refused.  He insisted that the Sheriff Department’s policy did not require him to drive his personal vehicle to a testing facility.  Mr. Veasy requested an “official vehicle” to drive to the testing facility.  A sergeant denied Mr. Veasy’s request, and ordered that Mr. Veasy drive to the testing facility.  When Mr. Veasy refused, the matter was referred to the Sheriff.    The Sheriff gave Mr. Veasy two options: either drive to the test site in his personal vehicle or be placed on administrative leave.  Mr. Veasy responded that his “2007 red four door Tacoma is not going,” and the  Sheriff placed him on administrative leave.  Mr. Veasy was ultimately terminated for refusing to comply with a direct order and for refusing to submit to a random drug screen.

Mr. Veasy sued for race discrimination.  The Eleventh Circuit assumed that he could prove a basic (prima facie) case of discrimination.  But, Mr. Veasy could not rebut the Sheriff’s legitimate nondiscriminatory reason for termination:  insubordination.  Mr. Veasy tried to argue that he had not actually violated a work rule.  After all, the Sheriff’s written policy said to arrive at Internal Affairs ready to submit a sample, and he did just that.  The Eleventh Circuit was not persuaded.  The issue was not whether Mr. Veasy violated the written rule, but whether he was insubordinate when he refused two direct orders to travel to the third-party contractor’s office.  The Eleventh Circuit found he was insubordinate, and affirmed dismissal of his discrimination claim.

Overzealous employers might be tempted to read Veazy to permit them to terminate an employee for insubordination any time the employee refuses a direct order.  To quote Lee Corso:  “Not so fast, my friend.”  There are numerous factors that need to be considered before any employee is terminated.  Probably, the most important factor is treatment of other similar employees who refuse direct orders.  So, if an employer only terminates insubordinate employees in a protected class, then the termination might be impermissible.  Veazy is more of a cautionary tale for employees to be careful about their insistence on work rules.

 

 

Complaints About Homosexual Discrimination Not Protected by Title VII

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Employees who complain about homosexual discrimination are not protected by Title VII’s anti-retaliation provisions.

In some areas of the country, federal courts have interpreted Title VII of the Civil Rights Act of 1964 to prohibit discrimination on the base of sexual orientation, including homosexuality.  However, the Eleventh Circuit Court of Appeals, which interprets federal law for Alabama,  has held that sexual orientation is not protected by Title VII.  In December of 2017, the United States Supreme Court declined to review the Eleventh Circuit’s position on this issue.  Here’s a link to a post that I wrote on that decision:  Supreme Court Won’t Review 11th Circuit LGBT Decision.

Although sexual orientation is not protected in the Eleventh Circuit, the court has prohibited discrimination against employees for “failure to conform to gender stereotypes.”  Here’s a link to a previous post that discusses the issue:  LGBT Issues in the Workplace.  In short, employers in the Eleventh Circuit can discriminate based upon sexual orientation, but arguably can’t discriminate because an employee’s manner, attributes, attire, etc. don’t comply with gender stereotypes.  As a result, homosexual employees who suffer discrimination are forced to file claims alleging that they suffered discrimination, not because of their sexual orientation, but because of their failure to conform to gender stereotypes.

In Brakeman v. BBVA Compass, No. 2:16-01344-JEO, 2018 WL 3328909 (N.D. Ala. Jul. 6, 2018), Chief United States Magistrate Judge John Ott discussed these issues in the context of a retaliation claim.  Krystal Brakeman is gay and married to another woman.  She claimed that a co-worker made statements to the effect that Brakeman needed to “talk to Jesus” and “get a man in her life.”  Ms. Brakeman complained to a supervisor about those statements.  Two months later, she was terminated from employment.  Her employer asserted that the termination was based upon separate improper conduct by Ms. Brakeman and a lack of truthfulness during an investigation of that conduct.

Ms. Brakeman sued and asserted several theories, including a claim that she was fired in retaliation for complaining about the homosexual-oriented comments of her co-worker.  Because homosexual discrimination is not prohibited in the Eleventh Circuit, complaints about homosexual discrimination are not protected.  Therefore, Ms. Brakeman argued that she suffered retaliation for complaining about a failure to comply with gender stereotypes.  Judge Ott refused to accept that argument, finding that “a plaintiff cannot ‘bootstrap’ an invalid sexual orientation claim into a viable gender stereotyping claim by asserting that homosexuals failed to comply with gender stereotypes because of their homosexuality, real or perceived. …. To hold otherwise ‘would mean that every case of sexual orientation discrimination would translate into a triable case of gender stereotyping.'”

In short, Judge Ott found that Ms. Brakeman was really complaining to her supervisor about homosexual discrimination.  And, because homosexual discrimination is not prohibited in the Eleventh Circuit, Ms. Brakeman’s complaints were not protected by Title VII’s anti-retaliation provisions.

At this point, there do not appear to be any decisions from the Eleventh Circuit itself addressing retaliation and gender stereotyping.  Nevertheless, Judge Ott’s analysis appears to be a natural extension of the Eleventh Circuit’s position on sexual orientation discrimination.  As a result, at least in the Eleventh Circuit, complaints about sexual orientation discrimination are unlikely to be protected by Title VII’s anti-retaliation provisions.

Arbitration Agreements: The Gifts That Keep On Giving

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Arbitration agreements can be binding even if they were signed during a different period of employment.

Diamonds are forever — and so are employment arbitration agreements.  That’s the lesson to be learned from Gillian v. Cowabunga, Inc., No. 2-17-cv-01389-JEO, 2018 WL 2431345 (May 30, 2018).  (For fans of Teenage Mutant Ninja Turtles, I unsuccessfully tried to find a way to work “Cowabunga, Dude!” into the title of this blog post.)

Scarlett Gillian was first employed by Cowabunga from November 2015 to March 2016.  When she was first hired, Ms. Gillian signed an agreement to arbitrate any disputes relating to her employment.  Ms. Gillian quit her job on March 14, 2016, but was re-hired on May 4, 2016.  She did not sign an arbitration agreement when she was re-hired.  Ms. Gillian claimed that she was sexually harassed during her second period of employment and filed suit in federal court.  Cowabunga moved to dismiss that lawsuit and claimed that Ms. Gillian was required to arbitrate any claims because of her prior arbitration agreement.  Ms. Gillian argued that she should not be required to arbitrate because she did not sign a new arbitration agreement when she was re-hired.

United States Magistrate Judge John Ott agreed with Cowabunga.  There appears to be no authority from the Eleventh Circuit Court of Appeals on this issue.  Nevertheless, Judge Ott relied upon decisions from several United States District Court Judges.  His opinion hinged upon the following conclusion:  “Where an arbitration agreement contains express language indicating intent for the agreement to survive termination of employment, parties may be compelled to arbitrate claims arising during subsequent re-employment.”  Gillian, 2017 WL 2431345 at *2.  Ms. Gillian’s arbitration agreement contained an express provision stating that it survived termination of her employment.  Therefore, Judge Ott found that she could be compelled to arbitrate, even though she did not sign a new arbitration agreement when she was re-hired.

Gillian provides employers with another way to avoid lawsuits in federal court.  Of course, if you are a regular reader of my blog, you know that arbitration agreements aren’t always a perfect solution for employers:  Arbitration Isn’t Always Good for Employers.  Nevertheless, if you require your employees to sign an arbitration agreement, you should make sure that the agreement also contains a provision stating that the agreement survives termination of employment.

Title VII, Premarital Sex and the Religious Employer

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Employers who terminate employees for premarital sex risk violating Title VII’s rule against pregnancy discrimination.

Title VII of the Civil Rights Act of 1964 and the Pregnancy Discrimination Act prohibit termination of employees because they are pregnant.  But, what if pregnancy is irrefutable evidence of premarital sex?  And, what if a religious employer has beliefs prohibiting premarital sex?  Can that employer terminate the pregnant employee without violating Title VII?  Those are the issues that United States Magistrate Judge Herman Johnson struggled with recently in Kelley v. Decatur Baptist Church, No. 5:17-CV-1239-HNJ, 2018 WL 2130433 (N.D. Ala. May 9, 2018).

Alexandria Kelley was employed by Decatur Baptist Church as a maintenance and child care employee.  She notified her employer in the Summer of 2015 that she was pregnant, and she was terminated shortly thereafter.  When Ms. Kelley sued in federal court, Decatur Baptist moved to dismiss her complaint, and argued that she was terminated because she engaged in sexual conduct outside of marriage — which violates biblical standards.  Judge Johnson denied that motion to dismiss, while leaving open the possibility for dismissal at a later stage of the litigation.

Decatur Baptist provided Judge Johnson with two legal arguments in support of dismissal.  First, the church argued that the “ecclesiastical abstention doctrine” barred Ms. Kelley’s claims.  Under that doctrine, courts do not decide issues connected to “theological controversy, church discipline, ecclesiastical government, or conformity of members of the church to the standards of morals required of them.”  Myhre v. Seventh-Day Adventist Church, 719 Fed. Appx. 926 (11th Cir. 2018).  (I previously wrote about courts’ reluctance to engage in ecclesiastical disputes here:  Ecclesiastical Disputes In Alabama.) Second, Decatur Baptist argued that Ms. Kelley’s claims were prohibited by the “ministerial exception,” which “precludes application of [employment discrimination laws] to claims concerning the employment relationship between a religious institution and its ministers.”  Kelley, 2018 WL 2130433 at *4.

Judge Johnson found that both of the church’s arguments were premature.  While the church claimed that its decision was based upon religious principals, Ms. Kelley’s complaint (which Judge Johnson was required to accept as completely true) alleged that the termination was based solely upon her pregnancy, and had nothing to do with religion.  Therefore, Judge Johnson gave Ms. Kelley the opportunity to engage in discovery in an attempt to provide evidence in support of her claim.

Decatur Baptist will unquestionably move to dismiss Ms. Kelley’s claims after discovery by filing a motion for summary judgment.  At that point, the church will probably also assert an additional fact-based defense — that it terminated Ms. Kelley for engaging in premarital sex, not for getting pregnant.  “Title VII does not protect any right to engage in premarital sex, but as amended by the Pregnancy Discrimination Act of 1978, Title VII does protect the right to get pregnant.”  Hamilton v. Southland Christian School, Inc., 680 F.3d 1316, 1319-20 (11th Cir. 2012).