President Biden Implements Vaccine Mandate

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Biden President Vaccine Mandate COVID-19
The Biden administration is requiring COVID-19 vaccines for government contractors and employers with 100 or more employees.

On Thursday evening, President Joe Biden addressed the nation and announced his plan for a “Path Out of the Pandemic.”  A broad outline of President Biden’s plan can be found on the White House web site here:  Biden COVID Plan.  That outline includes a vaccine mandate for all government contractors and private employers with 100 or more employees.  After the President’s address, the White House released two Executive Orders.  Here’s what we know:

1.  FEDERAL CONTRACTOR VACCINE MANDATE

After President Biden’s press conference, the White House posted a copy of an “Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors.”  Here’s a link to that order:  Exec. Order Vaccine Protocols/Contractors.  Highlights of the order include:

  • Significantly, the Executive Order does not explicitly implement a vaccine mandate.  Instead, the Order defers to guidance from the Safer Federal Workforce Task Force.  Nevertheless, given the tone of President Biden’s comments, it is safe to assume that the Task Force will mandate vaccines for federal government contractors.
  • Federal agencies must include clauses in their contracts requiring  contractors to comply with guidance issued by the Task Force.  The requirements in those clauses must also be flowed-down to subcontractors.
  •   Here’s a link to the Task Force’s current discussion of vaccines:  Task Force Vaccine Discussion.  You should regularly check that link because it will almost certainly change in the coming days and weeks.
  • The Task Force shall issue guidance by September 24, 2021 which will essentially provide details for the requirements of the Executive Order.
  • The Federal Acquisition Regulation (“FAR”) will be amended to implement the Executive Order.
  • The new clause will be included in all new contracts, extensions, renewals or options of contracts on or after October 15, 2021.

2.  FEDERAL EMPLOYEE VACCINE MANDATE

President Biden’s second Executive Order explicitly mandates COVID-19 vaccines for federal employees.  That order can be found here:  Federal Employee Vaccine Mandate.  Here are the highlights:

  • The order repeatedly finds that the “best way” to combat COVID-19 is to “be vaccinated.”
  • Based on that finding, the order finds “it is necessary to require COVID-19 vaccination for all Federal employees, subject to such exceptions as required by law.”  I anticipate that those exceptions will be narrow and focus on people with disabilities and sincerely-held religious beliefs.
  • Once again, the Safer Federal Workforce Task Force will lead the way.  “The Task Force shall issue guidance within 7 days of the date of this order on agency implementation of this requirement for all agencies covered by this order.”  So, we should have additional guidance by September 16, 2021.

3.  PRIVATE EMPLOYER MANDATE???? Employers with 100+ Employees

The Executive Orders do not address a vaccine mandate for private employers.  Nevertheless, the White House’s broad outline says that OSHA will be issuing an emergency standard mandating vaccines and/or testing for private employers with 100 or more employees:

The Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement. This requirement will impact over 80 million workers in private sector businesses with 100+ employees.

The process for issuing an Emergency Temporary Standard (“ETS”) is governed by 29 U.S.C. § 655(c).  Under that statute an ETS will become effective immediately when it’s published in the Federal Register.  Prior to publication, however, the ETS will likely identify compliance dates and deadlines for when certain actions must occur. The ETS will also allow for a public comment period prior to publication.

4.  CONCLUSION

In large part, today’s news is:  “Hurry up and wait!”  We know that the federal government is going to implement a vaccine mandate.  But, we don’t know the exact contours of that mandate.  We should have more guidance from the Task Force in the near future.

I plan to provide regular updates on this issue.  I also maintain an e-mail distribution list for clients, friends and generally anybody interested in employment law issues.  If you would like for me to include you on that list, please send me an e-mail at:  rlockwood@wilmerlee.com

 

 

Transgender Rights and Employee Bathrooms

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Employers should proceed cautiously if they want to deny transgender employees the right to use the bathroom of their choice.

In June, the United States Supreme Court issued its landmark decision in Bostock v. Clayton County, 140 S.Ct. 1731 (Jun. 15, 2020).  In Bostock, the Court found that discrimination against employees on the basis of sexual orientation or transgender status violates the sex discrimination prohibitions of Title VII of the Civil Rights Act of 1964.  Here is a more-detailed blog that I wrote on Bostock: Bostock – LGBTQ+ Decision.  A recent decision from the Eleventh Circuit Court of Appeals suggests that it might also be discriminatory to deny transgender individuals access to the bathroom of their chosen gender.  See Adams. v. School Board of St. Johns County, No. 18-13592, 2020 WL 4561817 (11th Cir. Aug. 7, 2020).

Adams Involves Schools and Students, Not Employers

Importantly, Adams is not a Title VII case.  Instead, it concerned the rights of a transgender student to be free from discrimination in a public school.  As a result, the student pursued discrimination claims under the Equal Protection Clause of the United States Constitution and Title IX of the Civil Rights Act.

The sole issue in Adams was the use of restrooms.  Drew Adams was assigned the female gender at birth but began to transition to the male gender.  He commenced ninth grade and presented as a boy.  For his first six weeks as a ninth grader, he used the boys’ restroom.  However, he was told that he could no longer use the boys’ restroom when two unidentified girls complained.  There were no complaints from boy students who shared the bathroom with Adams.  Nevertheless, the school system offered Adams two choices:  (1) use a single-stall gender-neutral bathroom; or, (2) use the girls’ facilities.  The school board believed that offering single-stall restrooms reconciled accommodations for transgender students with privacy concerns for non-transgender students.  Yet, Mr. Adams felt “alienated and humiliated” every time he was required to use the gender-neutral bathroom.

This is a case where facts played a huge role because the school board presented no facts indicating that any male student complained or that any “untoward” activities occurred in the bathroom.  As a result, two judges of the Eleventh Circuit repeatedly criticized the “hypothetical” dangers of allowing transgender students to use their chosen restrooms.

The majority also relied heavily upon Bostock when deciding Mr. Adams’s Title IX claim:  “Bostock confirmed that workplace discrimination against transgender people is contrary to the law.  Neither should this discrimination be tolerated in schools.  The School Board’s bathroom policy, as applied to Mr. Adams, singled him out for differential treatment because of his transgender status.  It caused him psychological and dignitary harm.  We affirm the District Court’s ruling that maintaining this policy violated Title IX.”  Adams, 2020 WL 4561817 at *16.

Lessons for Employers

Adams is extremely important for employers, even though it explicitly applies only to the relationship of schools and students.  At least two judges of the Eleventh Circuit believe that denial of access to a chosen bathroom is discriminatory.  As a result, if employers deny transgender employees the right to utilize their chosen bathroom, their risk-level under Title VII increases.

In my opinion, however, a mere denial of a chosen restroom should not amount to a violation of Title VII.  Usually, an employee can only succeed in proving discrimination under Title VII if he or she suffers an “adverse job action.”  And, a job action must be “materially” adverse.  In other words, if there is monetary risk associated with an action, it will probably be adverse.  Since denial of a bathroom doesn’t logically involve denial of money, it should not be enough, by itself, to support a successful Title VII claim.

Despite my views, the EEOC has on at least one occasion found that requiring a transgender woman to use a single-stall bathroom violated Title VII.  See Lusardi v. McHugh, EEOC Doc. 0120133395, 2015 WL 1607756 (Apr. 1, 2015).  The Lusardi decision originated on Redstone Arsenal in Huntsville.   Among other things, a transgender female Army employee was required to use a single-stall “executive” restroom rather than the restroom assigned to women.  The EEOC reviews discrimination complaints from federal agencies and determined that the bathroom assignment sufficiently altered the terms and conditions of Ms. Lusardi’s employment to violate Title VII.  A copy of the Lusardi opinion can be found here:  Lusardi Opinion

Viewed in tandem, the Lusardi and Adams cases should cause employers to think carefully if they decide to deny a transgender employee the opportunity to use their chosen bathroom.  Even if I am right, and denial of a bathroom does not, by itself violate Title VII, the denial could still be used against an employer.  For example, I think that denial of a chosen bathroom could be one piece of evidence to use in a sexual harassment/hostile work environment claim under Title VII.  Typically, an employee must show that their workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.  Denial of a bathroom might be one factor in finding a “severe or pervasive” work environment.

As I noted in the discussion of Adams, above:  facts matter.  It’s possible that a different result might be reached in a case where an employer can show that other employees using the restroom complained or that “untoward” conduct occurred.  In any case, employers need to consult with their attorneys before taking any action that treats a transgender employee differently.

Groundbreaking Decision on LGBTQ Employee Rights

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On Monday, the United States Supreme Court ruled that Title VII of the Civil Rights Act of 1964 prohibits employers from taking adverse employment actions based upon the sexual orientation or gender identity of an employee.  See Bostock v. Clayton County, Ga., 2020 WL 3146686 (Jun. 15, 2020).  The Bostock decision is a groundbreaking reversal of longstanding precedent in the Eleventh Circuit, which includes Alabama.  In the past, gay and lesbian employees have enjoyed very limited employment rights, while transgender employees enjoyed some protection.  Here is an old blog post providing a good overview of prior law for LGBTQ employees:  Emerging LGBT Issues in the Workplace

The Bostock case was initially decided by the Eleventh Circuit Court of Appeals.  Gerald Bostock worked as a child welfare advocate for Clayton County, Georgia.  After a decade of working for the county, and winning numerous awards, he began participating in a gay recreational softball league.  Shortly thereafter, community members made disparaging comments about Mr. Bostock’s sexual orientation and he was ultimately terminated for conduct “unbecoming” a county employee.  Mr. Bostock sued, and lost, in the United States District Court for the Northern District of Georgia.  On appeal, a panel of the Eleventh Circuit issued a one-page opinion upholding dismissal and adhering to longstanding precedent that “[d]ischarge for homosexuality is not prohibited by Title VII.” Bostock v. Clayton County Bd. of Comms., 723 Fed.Appx. 964 (2018) (quoting Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979).)

The Supreme Court reversed the Eleventh Circuit in a decision authored by Justice Neil Gorsuch.  Title VII prohibits discrimination on the basis of “sex.”  And, in the first paragraph of his opinion Justice Gorsuch concluded:  “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.  Sex necessarily plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

Justice Samuel Alito, writing for a three-justice minority, argued that employers do not discriminate against LGBTQ employees on the basis of their “sex,” but on the basis of their conduct, which would not be prohibited by Title VII.  According to Justice Alito, if an employer terminates both men and women for being gay, it draws no distinction on the basis of sex.  But, Justice Gorsuch responded to that argument: “[I]t doesn’t matter if the employer treated women as a group the same when compared to men as a group.  If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee — put differently, if changing the employee’s sex would have yielded a different choice by the employer — a statutory violation has occurred.”

While Bostock is a huge win for LGBTQ employees, it has not resolved all issues involving LGBTQ rights.  After all, Justice Gorsuch is a conservative.  Thus, he noted that employers with strong religious objections to LGBTQ employees might be protected by the Religious Freedom Restoration Act of 1993.  In fact, Justice Gorsuch noted that “[b]ecause the RFRA operates as a kind of super statute, displacing the normal operation of other federal laws, it might supercede Title VII’s commands in appropriate cases.”  But, because the RFRA was not before the Court, he made no express ruling on that issue.  As a result, there is a strong likelihood that we will see further decisions involving employers like Hobby Lobby whose religious beliefs influence their business plans.

Justice Gorsuch also declined to say whether an employer violates Title VII by requiring sex-segregated bathrooms, locker rooms and dress codes.  Instead, he expressly limited his opinion to a situation where an employer fires an individual merely for being gay or transgender.

 

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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Rules insubordination Alabama Employment Law 11th Circuit insubordinate
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.