Category Archives: Retaliation

June 5, 2019

Federal Courts Have Jurisdiction Over Title VII Discrimination Claims Even Where Administrative Remedies Have Not Been Exhausted

The United States Supreme Court ruled unanimously on June 3, 2019 that Title VII’s charge-filing requirement is not jurisdictional. In Fort Bend County, Texas v. Davis, Justice Ginsberg delivered the Court’s unanimous decision noting that while Title VII requires a complainant to first file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), the charge-filing precondition is not a jurisdictional requirement that can be raised at any stage of a proceeding. Rather, the charge-filing prerequisite is ranked among the claim processing rules that must be timely raised for it to apply.

The complainant in the Fort Bend, Lois M. Davis,case timely filed her initial charge of discrimination for retaliation after she claimed her supervisor retaliated against her by curtailing work responsibilities. Complainant alleged the supervisor wanted to punish her for a complaint she made against her supervisor’s friend who resigned following an investigation into a sexual harassment complaint. While her charge of discrimination was pending, Ms. Davis was instructed by her supervisor to report to work on a Sunday. Ms. Davis told her supervisor that she could not come in on Sunday, that she had a commitment at her church, and offered to have another employee replace her. Ms. Davis’ supervisor was insistent and told her that if she did not report to work on Sunday she would be terminated. Ms. Davis went to church instead of work and was promptly terminated. Thereafter, Ms. Davis attempted to supplement the allegations of her original Charge of Discrimination by adding to the intake questionnaire the word “religion.”

February 21, 2018

Dodd-Frank Whistleblower Protection Extends Only to Employees Who Report to SEC

By Brian Neil Hoffman and Jeremy Ben Merkelson

Brian Neil Hoffman

The United States Supreme Court today narrowed the universe of plaintiffs who can claim protection under the whistleblower anti-retaliation provisions of the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank). In a unanimous decision, the Court held that employees are not protected under Dodd-Frank unless they report information relating to a violation of the securities laws to the Securities and Exchange Commission (SEC). Employees who only report violations internally within their company, therefore, are not protected by Dodd-Frank’s anti-retaliation provisions.

Statutory Whistleblower Definition Applies

Dodd-Frank defines a “whistleblower” as someone who provides pertinent information “to the Commission” (SEC). Yet this clear language becomes less certain because Dodd-Frank protects “whistleblowers” for engaging in certain specified conduct, including making reports to non-SEC individuals, such as a company supervisor.

In today’s decision in Digital Realty Trust, Inc. v. Somers, the Court concluded that Dodd-Frank’s anti-retaliation provision applies only to employees who fall within the definition of a whistleblower and have engaged in one of the specified types of conduct. As a result, individuals who have not reported to the SEC are, by definition, not Dodd-Frank whistleblowers protected under the act’s anti-retaliation provision. Stated differently, an employee who makes an internal report of securities violations, or an external report to any entity other than the SEC, is not a whistleblower under Dodd-Frank.

Internal Reports of Securities Violations Not Protected

In the case before the Supreme Court, employee Paul Somers reported to senior management at his employer, Digital Realty Trust, Inc., that he suspected violations of securities laws being made by the company. He did not report his suspicions to the SEC. Shortly thereafter, Digital Realty terminated his employment. Somers sued Digital Realty alleging that he was protected from retaliation under the whistleblower protections of Dodd-Frank.

Digital Realty argued that Somers was not a whistleblower under Dodd-Frank because he failed to report to the SEC prior to his termination. A federal district court judge in San Francisco and a divided panel in the Ninth Circuit disagreed with Digital Realty and denied dismissal of Somers’ claim. Judge Ginsburg’s opinion for the Supreme Court, siding with Digital Realty, settles this issue after courts addressing this same issue in other cases reached differing results from Texas to New York to California. It is now clear that a plaintiff cannot claim whistleblower retaliation under Dodd-Frank without having reported to the SEC before suffering adverse conduct by an employer.

Employer Takeaways

This decision presents a mixed bag for employers. On the one hand, the decision is good news for employers because the ruling narrows the scope of protections available under Dodd-Frank’s anti-retaliation provisions. Dodd-Frank contains multiple plaintiff-friendly provisions – including immediate access to federal court, a generous statute of limitations (at least six years), and the opportunity to recover double back pay. Yet these benefits are now only available to a, presumably, smaller number of potential plaintiffs who actually report to the SEC.

On other hand, there are many reasons for employers to be wary of the ruling. Rather than incentivize employees to report their suspected concerns internally, today’s decision heavily encourages potential whistleblowers to report their concerns directly to the SEC – before any adverse action occurs, but also before employers have had the chance to hear, investigate, and address their potential concerns. Indeed, when an internal report does arrive, it may be safest for employers to assume that the SEC already has that same report. Notably, individuals who report their concerns internally may still assert retaliation claims under Sarbanes-Oxley Act (SOX), which itself provides significant monetary recovery in the form of back pay with interest, reinstatement, and other costs.

As a result, employers should remain vigilant about avoiding retaliation when reports about potential concerns arise. Employers should also consider engaging in a timely and proactive response to potential concerns, often in consultation with outside counsel and which may include an appropriate and comprehensive investigation and remediation of the matter.

January 11, 2018

EEOC Reveals Its Strategy For Upcoming Years; Will Review Public Comments

Little V. West

By Little V. West

The U.S. Equal Employment Opportunity Commission (EEOC) recently issued its draft strategic plan for fiscal years (FY) 2018-2022. Because the strategic plan outlines the agency’s priorities for enforcing anti-discrimination laws in the upcoming years, employers can learn a great deal about the types of discrimination and class actions the EEOC will pursue and litigate to further its agenda. Let’s look at highlights of the draft plan to see where the EEOC intends to focus its resources.

Substantive Area Priorities

In its draft strategic plan for upcoming years, the EEOC makes some changes to the substantive areas of law that encompasses its priorities for enforcement efforts. First, it adds two new priorities under the Emerging and Developing Issues area. The agency will look to address discriminatory practices against those who are Muslim or Sikh, or persons of Arab, Middle Eastern, or South Asia descent, particularly protecting members of these groups from backlash following tragic events in the U.S. and the rest of the world. The agency also will look to clarify the employment relationship and the application of anti-discrimination laws to the evolving employment relationships related to temporary workers, staffing agencies, independent contractors, and the on-demand economy (e.g., Uber, Airbnb, freelancers, and other economic models that do not have a traditional employment relationship).

Second, the priorities under the Americans with Disabilities Act will be narrowed to focus on qualification standards and inflexible leave policies that discriminate against individuals with disabilities.

Third, in the area of Immigrant, Migrant, and Other Vulnerable Workers, the EEOC will look to its district offices and the agency’s federal sector program to identify vulnerable workers and underserved communities in their area. For example, the EEOC states that some district offices may focus on employment discrimination against members of Native American tribes, where those groups have local issues of concern.

Fourth, the EEOC proposes to expand its priority on equal pay to go beyond discrimination based on sex, but to address compensation systems and practices that discrimination based on race, ethnicity, age, individuals with disabilities, and other protected groups. Consequently, addressing and remedying pay discrimination is intended to reach all workers, not just those paid differently because of their gender.

Fifth, the agency will focus on preserving access to the legal system and challenging practices that limit workers’ substantive rights or impede the EEOC’s investigative or enforcement efforts. In particular, the EEOC intends to focus on overly broad waivers and releases of claims. It will also target overly broad mandatory arbitration provisions. In addition, the agency looks to focus on significant retaliatory practices that dissuade other employees from exercising their rights.

Finally, the EEOC will continue to make it a priority to prevent systematic workplace harassment. Given the current environment that has shed new light on sexual harassment, the EEOC will look specifically to claims that raise a policy, practice, or pattern of harassment.

Strategy Leads to Priority Handling and Litigation

Because of limited resources, the EEOC will use its strategic priorities to guide its charge handling, investigations, and litigation. If a charge raises a substantive area priority, it will be given priority in charge handling. Cases with strong evidence in substantive priority areas will be given precedence in the selection of cases for litigation. In general, the agency looks to its strategic plan to offer a more targeted approach to its enforcement efforts.

Integrating EEOC Efforts Across The Agency

In addition to the substantive priority areas, the EEOC states that it is committed to using an integrated approach to consider ideas, strategies and best practices across the agency. It looks to reinforce consultation and collaboration between the investigative staff and the EEOC’s lawyers who litigate the cases. It also looks to increase the collaborative efforts between the federal and private sector staff, especially with respect to protecting LGBT workers. It also looks to enhance a coordinated and consistent nation message when it comes to education and outreach activities.

Next Steps

The EEOC accepted comments from interested parties on its draft strategic plan through January 8, 2018. The agency is expected to review submissions and approve its final version of the plan in the coming months.

May 17, 2017

Employer’s Dispute Resolution Program Did Not Prevent Employee Termination

By Steve Gutierrez

The Ninth Circuit Court of Appeals recently upheld judgment in favor of an employer on a former employee’s retaliation and wrongful discharge claims, ruling that the employer’s internal dispute resolution program did not prevent the employer from terminating the employee. In full disclosure, I represented the employer in this case and with my client’s approval, offer this insight into how we obtained this favorable outcome.

Account Executive Fired For Poor Performance and Missed Meetings

Jill Doran-Slevin (Doran-Slevin) began working for United Parcel Service (UPS) as an account executive in late 2010. Despite being assigned thousands of accounts, Doran-Slevin quickly began falling behind in her sales plan results. She also failed to adequately follow-up and serve her customers. In her 2011 performance review, Doran-Slevin was informed she needed to significantly improve her performance.

In early 2012, Doran-Slevin’s new area manager as well as human resources personnel worked with her to create a goal-setting matrix to help her improve her performance. UPS scheduled multiple meetings to discuss the matrix with Doran-Slevin, but she had a series of excuses for not attending the meetings.

During that time, Doran-Slevin composed two letters in which she alleged that she “was the target of discriminatory practices involving [her] gender [and] age.” She sent the first letter to UPS and the second to the EEOC. She did not, however, notify UPS that she had sent her allegations to the EEOC.

Upon receipt of Doran-Slevin’s letter, the company began investigating her allegations. While the investigation was ongoing, Doran-Slevin met with her managers to discuss a revised goal-setting matrix which she signed. Although UPS thought that the meeting had been positive and productive, Doran-Slevin stopped coming to work. For three days, she failed to show up for work or answer her phone. When Doran-Slevin finally called in and met with UPS managers, she indicated that she was interested in leaving with a severance package. UPS scheduled a follow-up meeting in order to discuss possible severance, but after Doran-Slevin failed to show up or answer her phone at the meeting time, UPS terminated her employment.

Employee Failed To Utilize Employee Dispute Resolution Program

UPS has an Employee Dispute Resolution (EDR) process that outlines a five-step internal grievance procedure. It begins with an informal open door step, followed by more formal dispute reviews, up to and including voluntary arbitration. Importantly, however, nothing in the EDR policy prohibits UPS from imposing discipline, including termination, while the internal dispute process proceeds.

At the time of her termination, UPS informed Doran-Slevin that she could use the EDR process if she wished. In addition, when it sent her a formal termination letter, UPS enclosed a brochure explaining the EDR process. Doran-Slevin admitted at trial that she did not try to initiate the EDR process with respect to her termination.

Former Employee Sues On Multiple Claims

Doran-Slevin pursued multiple claims against UPS, including retaliation under federal and state anti-discrimination laws based on her filing an EEOC complaint and wrongful discharge under Montana’s Wrongful Discharge From Employment Act.

The case proceeded to a jury trial in federal court in Montana. After many days of testimony, the district court granted judgment as a matter of law in UPS’s favor on Doran-Slevin’s retaliation and wrongful discharge claims. The court allowed Doran-Slevin’s claim for lack of good cause for termination to go to the jury, which returned a unanimous verdict in UPS’s favor. Doran-Slevin appealed to the Ninth Circuit Court of Appeals on multiple grounds, including the grant of judgment as a matter of law in favor of UPS.

Appellate Court Upholds Judgment In Favor of Employer

After considering the written positions of both sides as well as asking questions during oral argument, a three-judge panel of the Ninth Circuit affirmed the district court’s ruling. The Ninth Circuit stated that no reasonable juror could have determined that UPS terminated Doran-Slevin based on her filing of an EEOC claim because it was undisputed that UPS did not learn about the EEOC complaint prior to terminating Doran-Slevin. The Court also rejected Doran-Slevin’s wrongful discharge claims, finding in part that Doran-Slevin had not triggered application of UPS’s EDR program and additionally, the EDR program did not prohibit UPS from terminating Doran-Slevin. The Court upheld judgment in favor of UPS.

Take Aways For Employers

Litigation is rarely a pleasant experience, but achieving a court victory based on sound employment practices can make it worthwhile. Of course this case is unique on its facts and cannot guarantee the outcome of future cases, but some useful best practices regarding terminations may be gleaned from it, including the following:

Review employment laws of the state where the employee resides/works prior to making a termination decision. This case arose in Montana which has a unique wrongful discharge statute. An employer who relies on an employee’s at-will status when implementing a termination decision may well be out of luck in a state like Montana, so state-specific differences should be reviewed prior to making employment decisions.
Use disclaimers and disavow contractual obligations in your policies. By specifically stating that your handbook or other policies do not constitute a contract between the employee and the company, you may help eliminate claims that you breached your obligation to follow any particular steps prior to terminating employees.
If you use an internal dispute resolution process, reserve the company’s right to discipline or terminate employees for legitimate business reasons even while the process is ongoing. Similarly, if you use a progressive discipline policy, make sure that it states that the company may skip steps and escalate to immediate termination should the company deem it necessary.

By taking the time to get your policies and documentation in order and evaluating any risks prior to making a termination decision, you will increase your chances of prevailing should the employee file a claim against your organization.

April 19, 2017

Retroactive Leniency Is Not A Reasonable Accommodation

By Brad Cave

Is an employer required to excuse misconduct that was the result of the employee’s disability? The Tenth Circuit Court of Appeals recently looked at this issue and came to an interesting conclusion.

Janna DeWitt has Type I diabetes and is insulin dependent. Beginning in 1997, DeWitt worked for Southwestern Bell Telephone Company (SW Bell) as a customer service representative in its Wichita, Kansas call center. Recognizing that DeWitt had a disability covered by the Americans with Disabilities Act (ADA), SW Bell permitted her to take breaks as needed to eat or drink in order to raise her blood sugar level. SW Bell also granted DeWitt FMLA leave which she took intermittently for health issues related to her diabetes.

Last Chance Agreement

In 2010, DeWitt made an error by failing to shut down service on a customer’s account after the customer cancelled service. Failure to remove a service plan after cancellation was known as a cramming violation under SW Bell’s Code of Business Conduct and was a terminable offense. DeWitt was suspended following her cramming incident until she could address the issue with her supervisors in what the company called a “Day in Court.” Her Second and Third Line Supervisors decided to place DeWitt on a Last Chance Agreement under which any additional failure to perform satisfactorily could lead to further discipline, up to and including termination.

Terminated For Hanging Up On Customers

Two months after the cramming incident, DeWitt suffered a severe drop in blood sugar at work which she stated caused her to experience disorientation, confusion, and lethargy, making her unable to communicate with anyone. After DeWitt found that she was locked out of her computer, she contacted her First Line Supervisor, Tom Heumann, for assistance. Heumann did not address her locked computer but instead told the Center Support Manager, Beth Kloxin, that he had been monitoring De Witt’s calls and found that she had hung up on at least two customers. Kloxin responded by saying “I finally got that bitch” and did a little dance.

Later that day, Heumann and Kloxin met with DeWitt for a suspension meeting because of her two customer hang-ups. A union steward also attended the meeting. DeWitt explained that she did not remember taking the dropped calls and that she had been experiencing very low blood sugar levels at the time. Although they reviewed recordings of the dropped calls, DeWitt still did not remember them and asked if they were sure that the calls were hers. Heumann then told DeWitt that she was suspended and that a “Day in Court” would be held at a later date. In response to a request from Kloxin and the union steward, DeWitt provided her blood sugar levels for that afternoon.

About a week later, SW Bell held DeWitt’s “Day in Court.” DeWitt again explained that she did not remember taking the calls due to a severe drop in her blood sugar. Five days later, SW Bell terminated DeWitt for hanging up on two customers in violation of the company’s Code of Business Conduct and her Last Chance Agreement.

ADA and FMLA Claims

DeWitt filed discrimination charges with the Equal Employment Opportunity Commission (EEOC) and after receiving her notice of right to sue, filed a lawsuit against SW Bell in federal court. She alleged that the company failed to accommodate her disability and terminated her because of her disability in violation of the ADA, and retaliated against her for taking FMLA leave. After the district court ruled in favor of SW Bell on all of her claims on summary judgment, DeWitt appealed to the Tenth Circuit Court of Appeals (whose decisions apply to Colorado, Utah, Wyoming, Oklahoma, Kansas, and New Mexico).

Employer Need Not Excuse Or Overlook Misconduct

DeWitt asserted that SW Bell failed to accommodate her disability by not excusing her dropped calls which she says were caused by her disability. The Court disagreed, stating that the ADA does not require employers to reasonably accommodate an employee’s disability by overlooking past misconduct, even when the misconduct is caused by the disability. Instead, the Court cited the EEOC’s ADA Enforcement Guidance which states that reasonable accommodations are “always prospective.”

The Court found that DeWitt had not requested a reasonable accommodation to address concerns that her diabetes could cause her to drop calls. Using a disability as an “after-the-fact excuse” for workplace misconduct is unreasonable and employers need not ignore or overlook past misconduct. Therefore, because asking for retroactive leniency is not a reasonable ADA accommodation, DeWitt’s accommodation claim failed.

Decision-Maker’s Honest Belief In Termination Reasons

On DeWitt’s ADA termination claim, the Court assumed (without deciding) that DeWitt had established that she was a disabled person under the ADA, and was qualified to perform the essential functions of her job. The Court also accepted that SW Bell had provided a legitimate, non-discriminatory reason for terminating DeWitt, namely that she had hung up on at least two customers while on a Last Chance Agreement. To prevail, DeWitt needed to show that SW Bell’s stated reasons for her termination were pretext for discriminating against her.

DeWitt argued that dropping the calls was not intentional but instead, was a result of her disability – her severely low blood sugar at the time. The Court said that didn’t matter. Instead what mattered was whether the decision-maker, Kimberly Baskett-McEnany, who was DeWitt’s Third Line Supervisor, honestly believed that the hang-ups were intentional and acted on that belief in good faith. Finding no evidence to undercut Baskett-McEnany’s belief, the Court ruled that DeWitt’s ADA discrimination claim failed.

FMLA Retaliation Claim Also Fails

DeWitt also argued that SW Bell terminated her in retaliation for her use of FMLA leave. She offered evidence from a former manager at the call center who stated that employees who used FMLA leave were targeted as employees that should be terminated and that the company would look for other reasons to terminate such employees. DeWitt also pointed to Kloxin’s response to Heumann’s revelation that DeWitt had hung up on customers, saying “I finally got that bitch,” as evidence that SW Bell terminated her for using FMLA leave.

Again, the Court rejected DeWitt’s arguments and her FMLA retaliation claim. The Court stated that the former manager’s comments about the company targeting employees who used FMLA leave was no more than speculation, as that person had no knowledge of and was not involved in the company’s decision to terminate DeWitt. In addition, the Court determined that Kloxin’s subjective beliefs were irrelevant as she was not the person who decided to terminate DeWitt. Finding no evidence to send DeWitt’s claims to a jury, the Court upheld the grant of summary judgment in favor of SW Bell on all claims.

Key Lessons

This case highlights some significant management practices that can help defeat discrimination and retaliation claims. First, hold all employees accountable to your standards of conduct. SW Bell terminated DeWitt for violating its code of conduct, providing the necessary legitimate, non-discriminatory reason for actions. In addition, because DeWitt could not provide evidence that other employees who similarly violated the conduct rules were treated more favorably than she was treated, she was unable to show pretext. Second, if a supervisor has a potentially unlawful animus or bias against an employee, take that person out of the decision-making process. Although Kloxin appeared to express animosity against DeWitt (although it is not clear that her animosity was driven by an unlawful motive), she was not involved in the decision to terminate DeWitt and that distinction drove the Court to reject DeWitt’s claims. Finally, remember that a reasonable accommodation applies prospectively. You need not excuse poor performance or misconduct for which no accommodation was requested. That said, when dealing with an employee with a known disability, weigh all employment decisions very carefully and make sure your actions are well supported by your policies and past practices.

November 3, 2016

$4.25M Age Discrimination and Retaliation Verdict Tough Pill For Abbott Laboratories To Swallow

By Steve Gutierrez

Four-and-a-quarter million dollars. That is what a federal jury recently awarded an ongoing employee at Abbott Laboratories for her age discrimination and retaliation claims. What caused the jury to award such a large amount in damages? Here is a look at the facts, followed by tips on how to avoid such liability when dealing with older employees.

All Seems Fine—Until Employee Hits Her Fifties

Luz Gonzalez-Bermudez (Gonzalez) has worked for Abbott since 1984, beginning her career as a pharmaceutical representative followed by promotions that ultimately made her the HCP national sales manager. In that role, Gonzalez was classified in Abbott’s compensation system as a Level 18 position, warranting a six-figure salary, an annual incentive bonus, stock options, and a company car.

But, eighteen months after her promotion to the HCP national sales manager, when Gonzalez was about 51 years old, her position was eliminated and she was demoted to a marketing manager position. Her new job was a Level 17 position, but Abbott allowed her to keep her Level 18 compensation and benefits for up to two years.

In the marketing manager position, Gonzalez reported to Kim Perez, the Director of Marketing (and later, the General Manager). Perez evaluated Gonzalez’s performance as a marketing manager negatively. Gonzalez complained internally that Perez was creating a hostile work environment, due to repeatedly asking her about outstanding work, sending a lot of emails following up on pending matters, and a lack of communication about things Gonzalez needed to know to do her job.

When Gonzalez’s two years of Level 18 compensation was up, Perez and the Human Resources Director told her that she had been assigned a Product Manager position, which was a Level 15 classification. At that level, Gonzalez took a pay cut, lowered bonus, loss of stock options, and lowered company car benefits.

Employee Lawyers Up

About six months later, Gonzalez’s attorneys sent a letter on her behalf to Perez and others at Abbott, notifying them that they had been retained to represent her in any age discrimination claims that Gonzalez may have against them. Despite the letter, Abbott did not conduct an investigation into any possible claims. Shortly thereafter, Gonzalez filed an administrative charge with the Antidiscrimination Unit of the Puerto Rico Department of Labor and Human Resources alleging age discrimination and retaliation. Read more >>

September 6, 2016

Tips For Avoiding Retaliation Claims Under EEOC’s New Guidance

By Bryan Benard

In recent years, the Equal Employment Opportunity Commission (EEOC) has received more retaliation charges than any other type of discrimination claim. Last year, almost 45 percent of EEOC charges included an allegation of retaliation – yes, almost half!

Because of the alarming frequency of charges and the need for employees to report discrimination without fear of reprisal, the EEOC recently issued a new enforcement guidance on retaliation that replaces and updates its 1998 compliance manual on the subject. Even though the EEOC’s position is not necessarily the final word on these issues, as courts often disagree with the EEOC’s interpretation of federal discrimination laws, employers should know how EEOC staff, including its investigators and litigators, will approach retaliation charges. Here is a look at the new guidance with tips on how to avoid becoming another retaliation charge statistic.

Overview of Retaliation and Protected Activities

The federal discrimination laws enforced by the EEOC, such as Title VII, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA) and others, prohibit employers from taking adverse action against an employee or applicant because the individual engaged in “protected activity.” Adverse actions that can be seen as retaliatory by the EEOC include not just discipline or discharge, but also transferring the employee to a less desirable position or shift, giving a negative or lower performance evaluation, increasing scrutiny, or making the person’s work more difficult.

“Protected activity” falls into two categories: participation and opposition. Participation activity is when an individual “participates” in an EEO process, which can include filing a charge, being involved in an investigation, or testifying or serving as a witness in a proceeding or hearing. Opposition activity is when an individual complains, questions, or otherwise opposes any discriminatory practice. Employees have the right to engage in both types of protected activity without being subject to retaliation from their employer.

Harassment As Retaliation

According to the EEOC, harassing conduct can be seen as retaliation, even if it does not rise to the level of being severe or pervasive enough to alter the terms and conditions of employment. The agency states that harassment can constitute actionable retaliation so long as the conduct is sufficiently material to deter protected activity in the given context.

Evidence That May Support a Retaliation Finding

To determine whether there is a causal connection between a materially adverse action and the individual’s protected activity, the EEOC will consider different types of relevant evidence, alone or in combination. Some of the facts that may lead to a retaliation finding include:

Suspicious timing, especially when the adverse action occurs shortly after the individual engaged in protected activity;
Inconsistent or shifting explanations, such as where the employer changes its stated reasons for taking the adverse action;
Treating similarly situated employees more favorably than the individual who engaged in protected activity;
Statements or other evidence that suggest the employer’s justification for taking the adverse action is not believable, was pre-determined, or is hiding a retaliatory reason.

June 6, 2016

Colorado’s New Pregnancy Accommodation Law

Effective August 10, 2016, Colorado employers will commit an unfair employment practice if they fail to provide a reasonable accommodation for an employee, or an applicant for employment, for health conditions related to pregnancy or physical recovery from childbirth, absent an undue hardship. Last week, Colorado Governor John Hickenlooper signed into law House Bill 16-1438 which requires Colorado employers to engage in an interactive process to assess potential reasonable accommodations for applicants and employees for conditions related to pregnancy and childbirth. The new law, section 24-34-402.3 of the Colorado Anti-Discrimination Act, also prohibits employers from denying employment opportunities based on the need to make a pregnancy-related reasonable accommodation and from retaliating against employees and applicants that request or use a pregnancy-related accommodation.

Posting and Notification Requirements

The new law imposes posting and notification requirements on Colorado employers. By December 8, 2016 (120 days from the effective date), employers must provide current employees with written notice of their rights under this provision. Thereafter, employers also must provide written notice of the right to be free from discriminatory or unfair employment practices under this law to every new hire at the start of their employment. Employers in Colorado also must post a written notice of rights in a conspicuous place at their business in an area accessible to employees.

For more information on this new law, read our full post about its requirements here.

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May 11, 2016

Colorado Pregnancy Accommodation Bill Passes

The Colorado legislature passed House Bill 16-1438 requiring Colorado employers to engage in an interactive process to assess potential reasonable accommodations for applicants and employees for conditions related to pregnancy and childbirth. The bill, expected to be signed into law by Governor Hickenlooper, will ensure that employers engage in the interactive process, provide reasonable accommodations to eligible individuals, prohibit retaliation against employees and applicants that request or use a pregnancy-related accommodation, and provide notice of employee rights under this law. Once signed by the Governor, the new law will go into effect on August 10, 2016.

Pregnancy-Related Workplace Accommodations

This law will add a new section, section 24-34-402.3, to the Colorado Anti-Discrimination Act, making it an unfair employment practice for you to fail to provide a reasonable accommodation for an applicant for employment, or an employee, for health conditions related to pregnancy or physical recovery from childbirth, absent an undue hardship on your business. You also may not deny employment opportunities based on the need to make a pregnancy-related reasonable accommodation.

Interactive Accommodation Process

You will need to engage in a “timely, good-faith, and interactive process” with the applicant or employee to determine effective reasonable accommodations.

Examples of reasonable accommodations include but are not limited to:

more frequent or longer breaks
more frequent restroom, food and water breaks
obtaining or modifying equipment or seating
temporary transfer to a less strenuous or hazardous position, if available (with return to the current position after pregnancy)
light duty, if available
job restructuring
limiting lifting
assistance with manual labor, or
modified work schedules.

In engaging in this process, you need to be sure to document your good-faith efforts to identify and make reasonable accommodations because doing so can negate punitive damages if an individual sues you for failure to make a pregnancy-related accommodation. You may require that the employee or applicant provide a note from her health care provider stating the need for a reasonable accommodation.

No Forced Accommodations or Leave

Under the new law, you may not force an applicant or employee affected by pregnancy-related conditions to accept an accommodation that she has not requested, or that is unnecessary to perform the essential function of her job. Similarly, you may not require a pregnant employee to take leave if there is another reasonable accommodation that may be provided. As stated in the legislative declaration for the bill, the intent is to keep pregnant women employed and generating income so forcing pregnant women to take time off during or after their pregnancy generally is not permitted.

Analyzing Undue Hardship Of Accommodations

Reasonable accommodations may be denied if they impose an undue hardship on your business. That requires an analysis of the following factors in order to decide whether the accommodation would require significant difficulty or expense:

the nature and cost of the accommodation
the overall financial resources of the employer
the overall size of the employer’s business with respect to the number of employees and the number, type, and location of the available facilities, and
the accommodation’s effect on expenses and resources or its impact on the operations of the employer.

Broad Definition of “Adverse Action” in Retaliation Prohibition

The new law prohibits you from taking adverse action against an employee who requests or uses a reasonable accommodation for a pregnancy-related condition. An adverse action is defined very broadly as “an action where a reasonable employee would have found the action materially adverse, such that it might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” This approach harkens to the NLRB’s use of a “chilling effect” on employee rights as a basis for unfair labor charges. By not limiting an adverse action to concrete actions, such as a termination, demotion, pay reduction, or similar actions, the broad definition opens the door to a wide range of employer responses that could be deemed retaliation.

Notifying Employees of Their Rights

If signed into law, you will have until December 8, 2016 (120 days from the effective date) to provide current employees with written notice of their rights under this provision. Thereafter, you also must provide written notice of the right to be free from discriminatory or unfair employment practices under this law to every new hire at the start of their employment. You also have to post the written notice in a conspicuous place at your business in an area accessible to employees.

What To Do Now

With enactment almost certain, prepare now to comply with this new pregnancy accommodation requirement. A checklist of action items includes:

Review and update job descriptions to designate essential functions of each job.
Update your accommodation policies and handbook to include pregnancy-related accommodations and information on how employees may request such an accommodation.
Train your supervisors, managers, and human resources department on the new accommodation requirements and the anti-retaliation provision.
Prepare written notifications of employee rights to send to current employees no later than December 8, 2016.
Include the written notification of rights in your onboarding materials so that after December 8, 2016, all new hires receive the notice.
Post the written notification of rights in a conspicuous place accessible to employees, such as your lunch room bulletin boards, intranet, or wherever other required employment law posters are posted.

September 15, 2015

Wyoming Discrimination Charges: A Look at the Numbers

By Brad Cave

Mark Twain is credited with saying that “facts are stubborn things, but statistics are more pliable.” The Wyoming Labor Standards Division and the EEOC both keep statistics of the types of discrimination charges the agencies receive from Wyoming employees. When it comes to discrimination charges, the allegations are almost always pliable, but the statistics show us some interesting things for employers to ponder.

Wyoming Labor Standards Charges

The Wyoming Fair Employment Practices Act makes it unlawful for employers to discriminate on the basis of age, sex, race, creed, color, national origin, ancestry, pregnancy or disability. The Wyoming Department of Workforce Services’ Labor Standards Division is the state agency that processes and investigates most complaints of employment discrimination filed by Wyoming workers.

In 2014, the Wyoming Labor Standards Division received a total of 203 discrimination charges. It processed 182 of those charges and deferred the remaining 21 charges to the federal Equal Employment Opportunity Commission (EEOC) because they were either untimely under state law or contained allegations of Equal Pay Act violations. The Division reports the breakdown of 2014 charges by allegation as follows:

Type	No. of Charges	Percentage of Total Charges
Retaliation	76	41.8%
Sex	55	31.2%
Disability	46	25.3%
Age	33	18.1%
National Origin	27	14.8%
Race	21	11.5%
Religion	7	3.8%

You math wizzes in the audience have already exclaimed that the percentages exceed 100%, and the author must be numerically challenged. But, many charges include allegations of multiple types of discrimination. Indeed, charges often include an allegation of discrimination on the basis of protected class, and an allegation of retaliation in response to complaints about the discrimination. As you can see, Wyoming had more retaliation charges than any other type of charge. That mirrors the nationwide statistics where retaliation charges lead the list of most-filed charges. Not far behind are sex discrimination charges, with disability charges as the third most-frequently filed.

EEOC Charge Statistics for Wyoming Charges

The EEOC also maintains charge statistics for each type of discrimination that is alleged under the federal discrimination laws that it enforces, and annually publishes those statistics on a state-by-state basis.The EEOC count includes charges under Title VII, which prohibits discrimination on the basis of sex, race, color, religion and national origin, as well as charges under other federal discrimination laws such as the Americans with Disabilities Act, the Age Discrimination in Employment Act, and the Genetic Information Nondiscrimination Act.

The EEOC’s most recent data for fiscal year 2014 (Oct. 1, 2013 through Sept. 30, 2014) shows that the federal discrimination charges for Wyoming received by that agency track the Labor Standards Division’s statistics, with retaliation charges leading the list. With a total of 69 discrimination charges filed with the EEOC by Wyoming workers in FY2014, here are the numbers by type:

Type	No. of Charges	Percentage of Total Charges
Retaliation	30	43.5%
Sex	29	42%
Disability	25	36.2%
Age	20	29%
Race	14	20.3%
National Origin	6	8.7%
Color	4	5.8%
Equal Pay Act	3	4.3%
Religion	2	2.9%

Wyoming employers received significantly more sex discrimination charges in 2014 than compared to 2013. The percentage of sex discrimination charges filed with the EEOC went up from 29.2% in FY 2013 to 42% in FY2014. Retaliation charges topped the list in both FY2013 and FY2014. The full list of EEOC charge receipts for Wyoming for the last five years may be viewed on the EEOC’s website at http://www1.eeoc.gov/eeoc/statistics/enforcement/charges_by_state.cfm#centercol.

Lessons Learned

The charge statistics from the Wyoming Labor Standards Office and the EEOC reflect discrimination complaints filed by applicants and employees, not cases in which discrimination was determined to exist. Even so, the charge numbers for Wyoming suggest a number of action items for employers who want to avoid being included in next year’s statistics.

First, retaliation gets a lot less attention from employers than it should, as these numbers show. Whenever an employee complains about something at work that implicates a statutory right, like the right to be free from discrimination or harassment, or requests an accommodation or FMLA leave, the employee has engaged in protected activity. Most discrimination laws prohibit adverse actions because an employee has engaged in protected activity. And, it makes little difference whether the employee’s underlying complaint or request was valid – the employee is still protected against retaliation.

Employers need a strong, stand-alone anti-retaliation policy, not just a couple of sentences at the end of the policy prohibiting discrimination. Employers also need to train supervisors and managers about the significance of employee complaints, and how the law protects employees. And careful consideration should be given to any adverse employment action for an employee who has opposed discrimination in the workplace, been interviewed as part of an investigation, or participated in a discrimination proceeding.

Second, the prevalence of sex discrimination charges, which includes harassment charges, suggests that employers should review and update their discrimination and harassment policies, and continue periodic harassment prevention training. A strong harassment prevention policy, with understandable definitions and examples and multiple reporting options, is usually the best defense against a charge of sexual harassment. Of course, any observed or reported harassment must be investigated and any behavior which violates your policies must be stopped.

Finally, adopt a policy that guides employees who wish to request an accommodation, and train supervisors how to recognize employee requests that could be interpreted as a request for accommodation. Once a request is made, follow a thorough interactive process to explore reasonable accommodations that do not place an undue burden on your organization but will allow the person to perform their job. Only when you are absolutely sure that no reasonable accommodation is available should you terminate a disabled employee.

These action items will go a long way toward keeping you from becoming a statistic!

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