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Four Times that March Madness Impacted Employment Law Suits

March 16, 2016Robert C. Lockwood

In Alabama, we love football. Nevertheless, at this time of year, even die hard football fans can appreciate the drama of March Madness – the NCAA Basketball Tournament. To celebrate March Madness, I found four cases where the basketball tournament was raised as an issue in employment law suits. Since three of those four cases came from Illinois, I think it’s safe to conclude that basketball is big in Mid-West.

1. The “Sore Loser” Defense. Ricco v. Southwest Surgery Center, LLC, 73 F.Supp.3d 961 (N.D. Ill.2014).

Ricco involved a claim for tortious interference with business expectancy under Illinois law. The plaintiff was terminated after a co-worker accused her of stealing a coat. She claimed that her co-worker falsely accused her “because he was angry about losing the 2013 March Madness pool and having to pay her….winnings.” The Judge allowed a jury to determine whether the co-worker’s motives were malicious.

2. The “Everybody’s Doing It” Defense. Jones v. Environmental Protection Agency, 524 Fed. Appx 598 (Fed. Cir. 2013).

In Jones, the plaintiff was terminated for engaging in an outside business during work hours and sending inappropriate e-mails. He argued that his termination was improper “because other EPA employees and supervisors misused government time and equipment by participating in an annual NCAA office basketball pool.” The Court of Civil Appeals for the Federal Circuit was not persuaded and affirmed the termination.

3. Winning Trumps Insensitivity. Leonard v. Eastern Ill. Univ, 614 F. Supp. 2d 918 (C.D. Ill. 2009).

In Leonard, the plaintiff was a Native American who complained about an interview where two interviewers wore shirts with the image of “Chief Illiniwek,” the mascot of the University of Illinois. In the course of finding no retaliation, the Court noted that at the time of the interview “the University of Illinois Fighting Illinois men’s basketball team was playing in the NCAA Tournament Sweet 16… [and] was the best Illinois basketball team since the 1989 Final Four Team.”

4. “The Tournament Made Me Late for Work”. Meinke v. VHS Genesis Labs, Inc., No. 05C 3952, 2006 WL 3409159 (N.D. Ill. Nov. 21, 2006).

In Meinke, the plaintiff was terminated from employment for, among other things, excessive absences. On one occasion when the plaintiff missed work, his supervisor called “his cellular phone on March 18, 2004, at approximately 1:30p.m., and told plaintiff to turn off the NCAA basketball tournament.” The plaintiff denied watching the NCAA tournament at that time.

Judge Acker Slightly Softens His Stance on “But For” Causation

March 14, 2016Robert C. Lockwood

Leave of Absence

About a month ago, I discussed a string of decisions issued by Senior United States District Court Judge William Acker. Judge Acker has taken the position that “but for” causation prohibits an employee from making alternative claims of retaliation under Title VII, or the ADA or the ADEA. In short, Judge Acker is making employees limit their retaliation claims to only one statute. Here is a link to my previous comment:Judge Acker Comment.

In a recent decision, Judge Acker slightly softened his stance on “but for” causation. See Kirkland v. Southern Company Svcs, No. 2:15-cv-1500-WMA (N.D. Ala. March 8, 2016). In Kirkland, Judge Acker dismissed an ADA retaliation claim based upon “but for” causation. Nevertheless, Judge Acker declined to dismiss an FMLA retaliation claim. Rather than issuing a definitive decision, Judge Acker found that the issue of “but for” causation in FMLA retaliation claims “is still a toss-up in the Eleventh Circuit.” Judge Acker made clear that he thinks “but for” causation should apply to FMLA retaliation claims, but he would refrain from dismissing such claims until the issue is definitively resolved by the Eleventh Circuit.

EEOC Releases Guidance Expanding Scope of Retaliation.

February 12, 2016Robert C. Lockwood

On January 21, 2016, the EEOC issued a draft guidance expanding its interpretation of the law regarding retaliation claims. The EEOC claims that it needs to revise its guidance because of several Supreme Court decisions which were released after publication of its last retaliation guidance in 1998. While the EEOC’s enforcement guidance is supposed to be used only by EEOC investigative staff, courts and attorneys frequently cite the guidance as a source of authority. Unsurprisingly, the EEOC’s interpretation of the law is fairly liberal and employee-friendly. The EEOC’s draft guidance can be found here: EEOC Retaliation Guidance

One key example of the EEOC’s expansive interpretation is the burden placed on an employee to demonstrate that an employer’s stated reason for termination is pretextual — or unworthy of belief. Traditionally, the Eleventh Circuit (which reviews most retaliation claims originating in Alabama) requires an employee to address the employer’s reason for termination “head on.” If any employer says it terminated an employee for tardiness, the employee needs to show that he wasn’t tardy or that other employees were tardy and not fired. In contrast, the EEOC’s guidance indicates that it won’t require a “head on” analysis. Instead, the EEOC will allow an employee to demonstrate a “convincing mosaic” of other evidence to allow an “inference” of discriminatory intent.

The EEOC will accept public comments on its draft guidance until February 24, 2016. Comments can be made at www.regulations.gov in letter, email, or memoranda format. Alternatively, hard copies may be mailed to Public Input, EEOC, Executive Officer, 131 M Street, N.E., Washington, D.C. 20507.

JUDGE ACKER PROVIDES EMPLOYERS WITH A WEAPON AGAINST DISCRIMINATION CLAIMS

February 10, 2016Robert C. Lockwood

Senior United States District Court Judge William Acker is providing Alabama employers with a highly-effective weapon against employment discrimination complaints. In many cases, a terminated employee will be a member of multiple protected classes, for example race, age and disability. When they are terminated from employment, those employees may suspect that one or more of their protected traits were the reason for termination. As a result of that uncertainty, employers are often sued under multiple federal statutes: Title VII of the Civil Rights Act of 1964; the Age Discrimination in Employment Act; and, the Americans with Disabilities Act.

Judge Acker is putting an end to that practice. In a string of cases starting with Savage v. Secure First Credit Union, No. 2:14–cv–2468–WMA, –––F.Supp.3d ––––, 2015 WL 2169135 (N.D. Ala. May 8, 2015), Judge Acker is making employees choose exactly which employment law they are claiming has been violated. Judge Acker’s reasoning is based upon the fact that an employee in ADA, ADEA, and Title VII retaliation cases must prove that the protected characteristic was the “but for” cause of termination. In other words, the employee must prove that the characteristic was the only reason for termination.

As a result, Judge Acker finds that it is impossible for an employee to file a complaint claiming that he was fired in violation of the ADA or the ADEA or Title VII retaliation. Instead, he is making employees commit to one discrimination claim. If they refuse, he is dismissing their case in its entirety.

Notably, a Title VII claim for race, gender or religious discrimination does not require a “but for” causation analysis. Under Title VII, an employee can recover if his employer had “mixed motives” for termination. As a result, if race, gender or religion was merely part of the reason for termination, it is possible for an employee to win. I discussed this possibility in reviewing the case of a transgender auto mechanic who was terminated after sleeping in a customer’s car: LGBT Issues In the Workplace

Judge Acker’s decision in the Savage case is currently on appeal before the Eleventh Circuit Court of Appeals. Thus, it is possible that the Eleventh Circuit could find that he is wrong, and employees can be permitted to assert multiple claims, even under “but for” statutes.

EMERGING LGBT ISSUES IN THE WORKPLACE

February 1, 2016Robert C. Lockwood

The Eleventh Circuit Court of Appeals has released a decision which highlights the difficulties employers face in disciplining transgender employees. Chavez v. Credit Nation Auto Sales, LLC, No. 14-14596, 2016 WL 158820 (11th Cir. Jan. 14, 2016.). Chavez alleged that she was terminated from employment as a mechanic because she is a transgender person. Credit Nation responded that she was terminated because she slept for 40 minutes on-the-clock in a customer’s vehicle. The Court ruled that Credit Nation possessed a permissible reason for terminating Chavez, and affirmed dismissal of her claims for back pay and reinstatement. Nevertheless, the Court also found that Chavez presented sufficient evidence to show that her gender was a “motivating factor” in her termination, even though sleeping-on-the-job was a legitimate motivating factor as well. Chavez’s evidence of gender discrimination included: (1) the President of Credit Nation told Chavez that he was “very nervous” about her gender transition and the “possible ramifications”; (2) the President told Chavez that she was going to “negatively impact his business”; (3) the President asked Chavez not to wear a dress back and forth to work; (4) a Vice-President told Chavez to “tone it down” and be “very careful” because the President “didn’t like” the implications of Chavez’s gender transition; and, (5) Credit Nation deviated from its “normal” progressive discipline policy in terminating Chavez. The Eleventh Circuit remanded the case for a trial on whether Chavez’s transgender status was a motivating factor in the employment decision.

Chavez is the latest example of the difficult terrain that an employer must navigate when making decisions that affect Lesbian, Gay, Bisexual and Transgender employees. After Chavez, it is now well-established in the Eleventh Circuit (which reviews cases from Alabama) that sex discrimination under Title VII of the Civil Rights Act of 1964 includes discrimination against a transgender person for gender nonconformity. In short, as a general rule, transgender employees are protected by Title VII.

In contrast, the general rule is that sexual orientation (i.e., gay or bisexual) is not a protected characteristic under Title VII. Nevertheless, any lawyer will tell you that there are always exceptions to a general rule. For example, the Supreme Court has clearly held that same-sex sexual harassment is prohibited by Title VII. Additionally, there is some authority in the Eleventh Circuit indicating that discrimination on the basis of “nonconformity to gender stereotypes” might be actionable under Title VII. See Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011), but see EEOC v. McPherson Companies, Inc., 914 F.Supp.2d 1234 (N.D. Ala. 2012)(finding there must be “obvious gender non-conformity”).

The federal government is attempting to insert itself into these uncertain waters. President Obama issued Executive Order 13672 which explicitly prevents federal contractors from discriminating on the basis of sexual orientation or gender identity. Additionally, the EEOC has taken the position that discrimination on the basis of sexual orientation is sex discrimination under Title VII.

In short, the law is in a state of flux with regard to LGBT issues. Proceed carefully before making employment decisions based upon LGBT status.

CAN I FIRE MY EMPLOYEE WHO KEEPS YELLING “ROLL TIDE” AT THE OFFICE? FREEDOM OF SPEECH RIGHTS IN THE WORKPLACE

January 27, 2016Robert C. Lockwood

Auburn fans are just tired of it. All they hear about is The Process. “Nick Saban and Bear Bryant are the best coaches in the history of the universe.” “Roll Tide!!!”

If I fire an employee who yells “Roll Tide,” am I violating his First Amendment Freedom of Speech rights? For private employers, the legalistic answer to this question is “No.” As discussed below, however, there is a lot of employee speech that is protected.

The United States Constitution and its amendments bestow rights on citizens with regard to their interaction with government. As a result, the First Amendment guarantees that government will not restrict any citizen’s right to freedom of speech. But, private employers are not the government. As a result, from a pure constitutional law perspective, private employers are not controlled by the First Amendment. Thus, in most circumstances, a private employer cannot violate an employee’s free speech rights.

In a private office, if my staff is composed of Auburn fans, and I am an Alabama fan, I can fire them for saying “War Eagle” in the workplace.

But, there are always exceptions to the general rule. While the First Amendment does not protect employee speech in the private workplace, there are plenty of laws that do provide protection for employee speech. Virtually every federal employment law protects employees who speak out against discrimination in the workplace. The NLRB and Executive Orders from the President protect employees who speak out about working conditions — particularly employees who talk to each other about wages.

Unfortunately for college football fans, there is no law which protects employees who scream “Roll Tide” or “War Eagle” at work. But, if your employees are making other statements that may be upsetting to you, be careful before taking action.

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