Employment Law Update

Eric D. BentleyAssociate General Counsel

University of Houston System

Univ. of Houston v. Barth, 403 S.W.3d 851 (Tex. 2013)• Lawsuit was filed in 2001!• University tenured professor claimed he was subject

to retaliation after reporting to various university officials regarding alleged misconduct by the Dean.

• Texas Supreme Court held he was not covered under TWA because the internal policies he reported violations about were not “law” under TWA, his subjective belief they were “law” was unreasonable given his attorney background, and he did not report to any appropriate law enforcement authorities.

Texas Whistleblower Act

Final Rule Implementing Expanded Military Caregiver and Qualifying Exigency Leave (effective March 8, 2013).

• “Covered military member” is now “military member” and includes members of the National Guard and Reserves and the Regular Armed Forces.

• Caregiver leave can be taken up to five years after the service member leaves the military.

• Employees can take leave to care for parent when care is necessitated by the employee’s covered active duty (e.g., transferring parent to care facility).

FMLA

DOL 2013 guidance on Leave to Care for adult son or daughter

• The FMLA regulations define a “son or daughter” 18 years of age or older as one who is “‘incapable of self-care because of a mental or physical disability’ at the time that FMLA leave is to commence.” 29 C.F.R. § 825.122(c).

• Regulations do not address whether disability must have occurred before son or daughter turned 18.

• DOL says - Age of son/daughter at onset of disability is irrelevant to determining parent’s eligibility for FMLA leave.

FMLA

Demers v. Austin, 729 F.3d 1011 (9th Cir. 2013)• Tenured professor criticized university’s administration

and offered accreditation plan for department. • Professor sued, claiming low performance evaluations

were in retaliation for his writings.• 9th Circuit ruled that Garcetti v. Ceballos does not apply,

rather, Pickering v. Board of Education applies to teaching and academic writing.

• Writing addressed matter of public concern, therefore protected under Pickering.

• Circuit split: 3rd, 6th, and 7th hold that Garcetti denies public college faculty to bring retaliation claims for certain speech.

First Amendment

But See Dixon v. Univ. of Toledo, 702 F.3d 269 (6th Cir. 2012)• HR Director wrote an op-ed article voicing her

belief that members of the LGBT community do not possess immutable characteristics in the way that she as an African-American woman does. Implied that LGBT community should not be entitled to anti-discrimination protections.• University fires Dixon. • Court followed Garcetti standard. • Held that her speech was not protected speech

because it was speech as a public employee.

First Amendment

May 2013 EEOC Guidance Re: Application of Title VII and ADA to applicants/employees who experience Domestic or Dating Violence, Sexual Assault, or Stalking

• EEOC Example Regarding Domestic Violence:An employer terminates an employee after learning she has been subjected to domestic violence, saying he fears the potential “drama battered women bring to the workplace.”- Other EEOC examples relate to gender stereotypes.

Title VII

Vance v. Ball State Univ., 133 S.Ct. 2434 (2013)

• University not vicariously liable for alleged creation of racially hostile work environment because employee charged with creating it was not a supervisor, rather a co-worker. • Who is a supervisor? U.S. Supreme Court held

employee is a supervisor only if he/she is empowered by employer to take tangible employment actions against victim. • Court rejected EEOC’s Guidance that a

supervisor is one who has the ability to exercise significant direction over another’s daily work.

Title VII

Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517 (2013)

• But, for causation required in retaliation cases• U.S. Supreme Court rejects assertion that it

suffices to show motive to discriminate was one of employer’s motives for taking retaliatory action.• Eliminates mixed motive retaliation claims

(e.g. fired for stealing money and complaining to the EEOC).

Title VII

EEOC v. Houston Funding II, Ltd., 717 F.3d 425 (5th Cir. 2013)

• EEOC claimed employee was fired because she wanted to pump breast milk after giving birth. • District Court held that even if company fired

Plaintiff because she wanted to pump breast milk, “[L]actation is not pregnancy, childbirth, or a related medical condition…firing someone because of lactation or breast-pumping is not sex discrimination.”• 5th Circuit reversed and held firing a woman

because of lactation or expressing milk is unlawful sex discrimination because it is on basis of pregnancy, childbirth, or related medical condition.

Title VII

Weatherly v. Ala. State Univ., 728 F.3d 1263 (11th Cir. 2013)• Three Plaintiffs worked under two supervisors and claimed

racial and sexual harassment. Would you go to trial on these facts or would you settle?

• Supervisor uses “N-Word” on countless occasions including calling Plaintiff’s 7 year old son an N___, making him cry;

• Supervisor refers to Plaintiff’s breasts as “melons” and behind as “Hams.”

• Supervisor said she would make Plaintiff strip to see how many tattoos she has and where;

• Supervisor rubbed Plaintiff’s body and would place her breasts on Plaintiff’s shoulders from behind;

• Supervisor told Plaintiff to “Talk to the N___ side of the hand because the white side does not want to hear it” and “we got to dress professional, we don’t dress like N____.”

Title VII

Weatherly v. Ala. State Univ., 728 F.3d 1263 (11th Cir. 2013) (Cont’d)• Supervisor threatened that “no one was to speak with the

EEOC and that if they did, they would be dealt with. Terminated.”

• One of the Plaintiffs complained to the HR Director who said she could not submit a complaint.

• Case went to trial. Jury returned a verdict awarding over $1 Million to the three Plaintiffs (over $300,000 each).

• “We are left to speculate who is in charge at ASU. Regardless, however, we are unnerved by the apparent acquiescence to, if not outright condoning of, the abusive work environment created by its high-level employees. Such conduct simply has no place in a work environment, especially at a publicly funded university.”

Title VII

Johnson v. Strive East Harlem Employment Group et. al., U.S. District Court, Southern District of NY (2013)

• Black supervisor berates black employee after she reported sexual harassment. Supervisor uses the “N-word” repeatedly when berating the employee. • Incident was recorded on the employee’s iPhone

and was played to the jury. • Jury concluded the use of the “N-word” was racial

harassment and awarded $250,000 to the plaintiff. • Jury rejected argument that it is okay for a black

supervisor to use the “N-word” toward a black employee.

Title VII

Waldon v. Cincinnati Public Schools, 941 F. Supp. 2d 884 (S.D. Ohio 2013).

Ohio law required termination of school employees with convictions no matter how far back.

School terminated 10 current employees with convictions, 9 of whom were Black. Convictions were decades old.

Two of the employees filed suit.Defendant argued they were just following

state law. Court held Plaintiffs proved disparate impact

discrimination and noted federal law (Title VII) trumps state law.

Title VII

Waldon supports the EEOC’s April 2012 guidance on use of criminal background checks.

Cannot make across the board decisions on criminal background checks (i.e., policy says no one will be hired with a criminal conviction).

Must conduct a specific analysis and consider the nature of the job, the nature and seriousness of the offense, and the time since it occurred.

Title VII

In Macy v. Holder (EEOC April 20, 2012), the EEOC determined transgendered persons are protected from discrimination under Title VII.

Macy, a male, applied for a position as an ATF agent.

During the background check, she told the investigator she was in the process of transitioning from male to female.

ATF tells Macy the position was eliminated, but then hires another applicant.

EEOC determined gender stereotyping and gender identity discrimination are a form of sex discrimination under Title IX.

Title VII

Title VII does not cover sexual orientation discrimination.

No Texas law covering employment discrimination on the basis of sexual orientation.

But see Gill v. Devlin, 867 F.Supp.2d 849 (N.D. Tex. 2012). • Former temporary college instructor at

Tarrant County College District brought an equal protection claim against the Department Chair under Section 1983. • Claims she was not assigned classes on

the basis of her sexual orientation.

Title VII

Gill v. Devlin, 867 F.Supp.2d 849 (N.D. Tex. 2012). (Cont’d)• Department chair admits he told Devlin

that Texas is a conservative state and that “Texas and [the college] do not like homosexuals.”• Court held Gill plausibly alleged a

violation of clearly established equal protection rights.

Title VII

EEOC May 2013 Guidance on Cancer, Diabetes, Epilepsy in the Workplace under the ADA

Pre-offer: As with other medical conditions, cannot ask questions or require applicant to have medical exam before a conditional job offer is made. Note: GINA would prevent also.

Post-offer: May ask general questions about health and may require medical exam if all applicants treated the same.

ADA

If employee discloses they have cancer, diabetes, epilepsy – cannot ask employee questions about it. Can ask if they need an accommodation and what type (not recommended).

Can ask if performance problems are caused by the employee’s condition (not recommended).

May request medical documentation to substantiate reasonable accommodation request.

EEOC says granting leave without fixed return date may be a reasonable accommodation!

ADA

Trending now…How will you handle alleged sexual assaults between two staff or faculty members? What if it occurs on campus? What if it occurs off-campus?

Dear Colleague Letter – April 2011• “Title IX also protects employees of a

recipient from sexual harassment.”• 2001 Guidance: states that sexual

harassment among employees is conduct that is prohibited by Title IX.

Title IX

Social Media

7 Pitfalls of Using Social Media to Check Backgrounds of Applicants

1. Only performing social media background checks on certain applicants.

2. Inconsistently reviewing social media postings or taking into account an applicant’s protected status. Disparate impact claim.

3. Taking into account social media postings considered protected speech under the 1st Amendment.

4. Hiring a third party to perform the screening but failing to follow the Fair Credit Reporting Act.

Social Media

7 Pitfalls of Using Social Media to Check Backgrounds of Applicants (Cont’d)

5. Requiring applicants to divulge their social media passwords.

6. Failing to disqualify an applicant whose postings indicate they would be a threat to other employees.

7. Taking into account an applicant’s concerted activities or union activities.

Social Media