Manager’s Opposition to Employer’s Handling of Rape Allegations Not Protected Activity, Rules Eleventh Circuit

POSTED BY RICHARD D. TUSCHMAN ON MARCH 28, 2012

Title VII generally protects employees who oppose employment practices made unlawful by Title VII, such as sexual harassment.  But what happens when a manager disagrees with the way in which her employer handles an internal investigation into an allegation of sexual harassment?  Is the manager engaging in protected activity by voicing her disagreement?  That was the issue addressed by the Eleventh Circuit Court of Appeals in Brush v. Sears Holdings Corp., Case No. 11-10657 (11th Cir., March 26, 2012) (unpublished). 

Brush was a loss prevention manager who was charged with investigating allegations of sexual harassment made by a store employee.  Brush met with the employee alone.  The employee alleged that her boss had raped her.  But the employee requested that neither her husband nor the police be informed of the rape.  Brush told her own boss of the employee’s allegations and insisted that the company needed to contact the police.  The company declined, citing the incomplete status of the investigation and the employee’s own desire not to involve the police.

The company subsequently terminated Brush for violating the company’s sexual harassment policy in meeting with the employee alone, in suggesting to the employee that she had been raped without asking an open-ended question to see what the employee said, and in failing to properly investigate the claim by obtaining video evidence. 

Brush sued the company, alleging retaliation in violation of Title VII.  Brush asserted that her opposition to the company’s handling of the employee’s allegations constituted protected activity.  The district court disagreed and dismissed Brush’s complaint. 

On appeal, the Eleventh Circuit affirmed the lower court’s ruling.  “Brush’s disagreement with the way in which Sears conducted its internal investigation into [the employee’s] allegations does not constitute protected activity,” the court wrote.  “Since there is no evidence of Brush’s opposition to any unlawful practice [of Sears], it follows that Brush can support no claim under Title VII.”  While Brush opposed Sears’ failure to call the police, “[s]he has cited no state or federal law that would have mandated Sears take some action other that what it took.”

The court also rejected Brush’s argument that a manager’s role in reporting a Title VII violation always qualifies as a protected activity.  In so doing, the court adopted the “manager rule” that has been adopted by other circuits.  Under this rule, a management employee who, in the course of her normal job performance, disagrees with or opposes the actions of an employer is not engaging in protected activity.   

For employers in the Eleventh Circuit, the Brush decision creates a valuable defense to claims of retaliation by manager-level employees. 

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"ABC's Session" Gets Back to Basics at Akerman's 17th Annual Labor & Employment Law Seminar

POSTED BY JENNIFER WILLIAMS ON MARCH 28, 2012

The more things change, the more they stay the same. As labor and employment lawyers, in-house counsel, and human resources professionals, we are thrown into a whirlwind of complex workplace legal issues on a daily basis. No matter what the issue, though, I find that these fundamental questions pop up on a consistent basis: 

  • Is this employee eligible for FMLA leave?
  • Does this medical condition count as a "disability"?
  • How many employees in a layoff trigger WARN Act notice?
  • Do we have to accommodate employees’ religious beliefs?
  • What are "protected characteristics" under Title VII?
  • How do I notify employees of their COBRA rights?

At the annual Akerman Labor & Employment Seminar, we will address these questions and much more during the ABC's of Labor & Employment Laws session. We will cover basic knowledge of several labor and employment laws we encounter every day: Title VII, ADEA, FMLA, ADAAA, WARN, Florida's Whistleblower Act, OSHA, and USERRA.

Even the most experienced human resources professionals and legal experts will find something new to add to their knowledge base, making them a better resource for their respective organizations. Join me for this interactive session as we get back to basics. To learn more about the Akerman Labor & Employment Law Seminar, please visit http://www.akerman.com/events/LELS12/overview.asp

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Whistleblower and Retaliation Claims - Hot Topic at Akerman's 17th Annual Labor & Employment Law Seminar

POSTED BY ERIC GORDON ON MARCH 23, 2012

You have done everything right. You provide a legitimate, non-discriminatory reason for taking an adverse employment action against one of your employees. You provide all the evidence any jury could ever want, which you believe shows that the employee was never treated differently than other similarly situated employees. You think you are a sure bet for winning summary judgment. Right? Wrong! You just forgot about one of the largest problems in employment discrimination:  the retaliation claim.

Employers are prohibited under various provisions of state and federal law from retaliating against employees who engage in certain protected activities and/or who “blow the whistle” on employer misdeeds. Indeed, the Florida legislature has enacted specific “whistleblower” statutes designed to protect employees in the private and public sectors and incorporated anti-retaliation provisions into numerous other state and local laws. None of these specific statutes require any finding of discrimination.

It is important for employers in Florida to be mindful of the federal, state, and local prohibitions as whistleblower and retaliation claims are forever on the rise and although retaliation claims may be brought in isolation, more often than not, they are coupled with claims alleging underlying statutory violations. And, as recent decisions highlight, the law of retaliation continues to expand. In fact, the EEOC has reported that in 2011, it received 37,334 charges of retaliation under Title VII, the ADEA, the ADA and the EPA – which represents 37.4% of all charges of discrimination filed with the EEOC in 2011 – making retaliation claims the most popular employee claims in 2011.

Whistleblower and retaliation claims are at an all-time high. For more information about recent case decisions that are shaping how the courts and administrative agencies are dealing with these claims, we hope you will join us at Akerman's 17th Annual Labor & Employment Law Seminar on April 19, 2012. To learn more, please visit http://www.akerman.com/events/LELS12/overview.asp

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Is Pregnancy Discrimination Legal Under Florida Law? Courts Are Divided.

POSTED BY RICHARD D. TUSCHMAN ON MARCH 12, 2012

The Florida Civil Rights Act, which, among other things, prohibits sex discrimination in employment, does not prohibit pregnancy discrimination, according to a recent decision by a federal judge in Florida.

If that sounds crazy, think again. The court’s decision in Berrios v. University of Miami, Case No. 11--CIV-22586-UU (S.D. Fla., March 1, 2012) is supported by logic and precedent. However, there is a split among courts on the issue.

Here’s the logic. Congress enacted Title VII in 1964, thereby prohibiting sex discrimination in employment. Five years later, the Florida legislature passed the Florida Human Relations Act, which prohibited discrimination based on “race, color, religion, or national origin.” In 1972, the Florida legislature amended the Florida Human Relations Act to ensure “freedom from discrimination because of sex.” In 1976, the Supreme Court ruled in General Electric Co. v. Gilbert, 429 U.S. 125 (1976) that Title VII did not prohibit pregnancy discrimination. Because Florida law provides that a Florida statute patterned after a federal law will be given the same construction as the federal courts give the federal act, it was clear after Gilbert that the Florida Human Relations Act did not prohibit pregnancy discrimination, either. Subsequent amendments to the Florida Human Relations Act (including changing its name to the Florida Human Rights Act (“FHRA”) did not add pregnancy as a protected status, despite the Supreme Court’s decision in Gilbert.

In 1978, in response to Gilbert, Congress enacted the Pregnancy Discrimination Act (“PDA”), which amended Title VII to by re-defining sex discrimination to include discrimination on the basis of pregnancy. Yet Florida did not amend the FHRA in the years following the enactment of the PDA. In 1991, Florida’s First District Court of Appeal in O’Loughlin v. Pinchback, 579 So. 2d 788, 791-92 (Fla. 1st DCA 1991), concluded that the FHRA did not prohibit pregnancy discrimination.

In 1992, the Florida legislature amended the FHRA, including changing its name to the Florida Civil Rights Act of 1992. Still, despite O’Loughlin, these amendments did not modify the statute’s references to sex discrimination or otherwise suggest an intention to prohibit pregnancy discrimination. The language of the FCRA prohibiting discrimination on the basis of sex continued to include the pre-PDA language of Title VII. Thus, the Florida Civil Rights Act does not prohibit discrimination.

That’s the logic, anyway. In Carsillo v. City of Lake Worth, 995 So. 2d 1118 (Fla. 4th DCA 2008), Florida’s Fourth District Court of Appeals reached a different conclusion. Noting that when Congress enacted the PDA, it “expressed its disapproval of both the holding and the reasoning of Gilbert,” the Fourth DCA concluded that “Congress made clear in 1978 that its intent in the original enactment of Title VII in 1964 was to prohibit discrimination based on pregnancy as sex discrimination.” Because the FCRA is patterned after Title VII, the Fourth District reasoned, "it follows that the sex discrimination prohibited in Florida since 1972 included discrimination based on pregnancy[.]"

Until the Florida Supreme Court decides the issue, whether a woman can state a cause of action for pregnancy discrimination under the Florida Civil Rights Act will depend on the court in which she litigates her case. In addition to the split among the First and Fourth district courts of appeal, federal courts in Florida are also divided on this issue. Compare Duchateu v. Camp Dresser & McKee, Inc., 2011 WL 4599837 (S.D. Fla. 2011) (holding that under Florida law, the FCRA does not include a cause of action for pregnancy discrimination); Boone v. Total Renal Labs., Inc., 565 F. Supp. 2d 1323, 1326-27 (M.D. Fla. 2008) (same), Whiteman v. Cingular Wireless, LLC, Case No. 04-80389-CIV-PAINE, D.E. 114 at 11 (S.D. Fla. May 3, 2006) (same), aff’d, 273 F. App’x 841 (11th Cir. 2008) (per curiam), and Frazier v. T-Mobile USA, Inc., 495 F. Supp. 2d 1185, 1187 (M.D. Fla. 2003) (same), with Constable v. Agilysys, Inc., 2011 WL 2446605, at *6 (M.D. Fla. June 15, 2011) (concluding that the FCRA does provide a cause of action for pregnancy discrimination), and Terry v. Real Talent, Inc., 2009 WL 3494476, at *2 (M.D. Fla. Oct. 27, 2009) (same).

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NLRB Posting Rule Upheld

POSTED BY SCOTT T. SILVERMAN  AND NEFERTARI S. RIGSBY ON MARCH 6, 2012

On March 2, 2012, Judge Amy Berman Jackson of the United States District Court for the District of Columbia held that the National Labor Relations Board ("Board") lawfully promulgated Subpart A of its Rule, “Notification of Employee Rights under the National Labor Relations Act" which requires employers to post a notice of employee rights.  However, the Board exceeded its authority under the NLRA by promulgating the two provisions under Subpart B of the Rule that permit the Board to deem failure to post an unfair labor practice and to toll the statute of limitations for claims against employers who fail to post the notice.

In National Association of Manufacturers, et al. v. National Labor Relations Board, et al., Civil Action No. 11-1629 (ABJ) (D.D.C.), the court considered plaintiffs' legal challenges to the Rule under the Administrative Procedures Act ("APA") and the First Amendment to the United States Constitution.  Regarding the argument that the Board had violated the APA, Judge Jackson found that the Board had not  exceeded its authority under the NLRA and that its Rule was reasonable and neither arbitrary nor capricious.  In addition, the Rule did not violate the First Amendment, because the required notice poster is clearly a communication from the Board. Therefore, it is compelled "government speech," which is not subject to free speech scrutiny.

However, Judge Jackson held that the remedial provision in the Rule stating that a failure to post a notice is an unfair labor practice was an invalid "blanket determination."  Instead, the Board must consider the circumstances of each failure to post claim and make specific findings before it can find an unfair labor practice. Similarly, Judge Jackson found that universal tolling of the statute of limitations for unfair labor practice claims against noncompliant employers was invalid.  Again, the Board must make an individualized determination as to any tolling claim.

Based on Judge Jackson's ruling that the Board's notice posting requirement is valid, all employers should plan to comply on April 30, 2012.   Although the ruling from Judge Jackson states that a failure to post a notice cannot be  considered a per se unfair labor practice and that tolling of the statute of limitations must be made on a case-by-case basis, these remain possible remedies that the Board may impose against a violating employer. The Board will need to revise Subpart B of its Rule, but it is fully expected that Subpart A will be effective as of April 30, 2012.

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OSHA Elevates Priority for Whistleblower Enforcement Under 21 Federal Statutes

POSTED BY RICHARD D. TUSCHMAN ON MARCH 5, 2012

The Occupational Safety and Health Administration announced last week a “major restructuring” of its Office of the Whistleblower Protection Program that reflects an increased priority for federal whistleblower protections.

The program will now report directly to the agency's Office of the Assistant Secretary instead of to its Directorate of Enforcement Programs, according to OSHA’s press release.

So what’s the big deal, you say?  It’s just a bureaucratic reshuffling in an agency that only addresses workplace safety issues, right? 

Well, not exactly.  While OSHA is charged with enforcing the Occupational Safety and Health Act and its whistleblower provisions, Congress has also empowered OSHA to enforce the whistleblower provisions of twenty other federal laws, including the Sarbanes-Oxley Act, the Consumer Financial Protection Act of 2010 (part of the Dodd-Frank Act), and the Surface Transportation Assistance Act.

So when OSHA makes a change that “represents a significantly elevated priority status for whistleblower enforcement,” as OSHA’s press release states, that is a big deal. 

It remains to be seen what the increased priority for whistleblower protection means in practice.  But among the changes, according to news accounts, is that OSHA will be adding investigators and strengthening the training of its investigators.  For employers, that likely means more “cause” findings and more penalties.

We will keep you posted as we learn more.

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No, You Can’t Fire Employees For Being Out on Jury Duty

POSTED BY RICHARD D. TUSCHMAN ON FEBRUARY 24, 2012

A former Orlando-based employee of a national trucking company has filed a lawsuit claiming that she was terminated for serving on a federal jury, according to a recent article in the Orlando Sentinel.    In an unusual move, the court has appointed a lawyer to represent the former employee.

Whether or not the employee’s allegations are true, employers should remember that both federal and state laws make it illegal to terminate an employee for serving on a jury -- regardless of the length of service.

Under federal law, employers held liable are responsible for reinstating the employee, paying the employee’s lost wages and attorney’s fees, and paying a fine of up to $5,000. Under Florida law, employers held liable are responsible for paying the employee compensatory damages, attorney’s fees, and punitive damages.

Neither federal nor Florida law requires employers to pay jurors while they are serving on a jury. However, some county ordinances in Florida, and some states’ laws, do require employers to pay their employees while serving. 

If you have employees who have been called to serve on a jury, congratulate them for fulfilling their civic duty, hold their jobs open, and hope that it’s a short trial.  And ask an employment lawyer for advice if you are uncertain about your legal obligations.

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Florida May Change Wage Payments For Tipped Employees

POSTED BY SCOTT T. SILVERMAN ON FEBRUARY 21, 2012

On February 16th  the Commerce and Tourism Committee of the Florida Senate reported favorably on a bill that would allow Florida employers to fundamentally alter the way that tipped employees are paid.  Senate Bill 2106 is now before  the Regulated Industries Committee.  The text of the bill is available here.  

Currently, the Florida minimum wage for employees is $7.67 per hour.  However, Florida law allows employers of tipped employees to take what is called a “tip credit” against wages of up to $3.02.  Employers who take the tip credit must pay tipped employees a direct wage of $4.65, which is equal to the minimum wage ($7.67) minus the applicable tip credit ($3.02).

The Federal Fair Labor Standards Act (FLSA) requires employers of tipped employees to pay a direct wage, which is equal to the federal minimum wage ($7.25) minus the federal tip credit ($5.12), or a direct hourly wage of $2.13 per hour.
  
Under Senate Bill 2106, Florida employers of tipped employees would have the option of not paying a direct hourly wage of $4.65.  Rather, employers could elect to pay a guaranteed wage for such tipped employees, equal to at least 130 percent of the state minimum wage, rounded up to the next cent (or $9.98 an hour).

If the employer makes the election, the employer would be deemed to have met the requirement to pay the Florida minimum wage, but would still be required to meet the requirements of the FLSA.  Thus, the employer would still have to pay a direct hourly wage of $2.13 per hour.  The employer would then be required to make up any failure of the combination of the $2.13 direct hourly wage and actual tips to equal the guaranteed compensation of at least $9.98 per hour.

If the employer failed to pay the guaranteed wage in the notice or engaged in retaliation against an employee, the employer would be liable for the unpaid wage, and an equal amount as liquidated damages and fees and costs.

Employers of tipped employees should stay abreast of developments in this area.

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Serious and Willful OSHA Violations: What’s the Difference?

POSTED BY RICHARD D. TUSCHMAN ON FEBRUARY 20, 2012

It’s never good news when the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) cites your business for violations. But there’s bad news, and really bad news, and a recent case in South Florida illustrates the difference.

On February 8, 2012, OSHA announced that it cited Hialeah-based Bennett Electrical Services Co. Inc. for three safety violations after an employee was injured and hospitalized as a result of a defective truck-mounted crane. According to OSHA, while moving concrete traffic light poles with the crane, the boom of the crane separated from the truck, striking the operator in the head, which knocked him off the operator's station and onto the ground.

OSHA cited the contractor for two serious violations and $8,400 in proposed fines for allowing modifications to be made to the truck-mounted crane without the written approval of the manufacturer and allowing the crane to continue to be operated despite known deficiencies. That was the bad news.

The really bad news was that OSHA also cited the contractor for a willful violation and a $42,000 penalty for failing to conduct annual inspections on a truck-mounted crane. OSHA contends that the employer was aware of safety concerns raised by OSHA based on previous citations issued in 2002 and 2006.

So what’s the difference between serious and willful violations?

Section 17 of the Occupational Safety and Health Act provides that “a serious violation exists where there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.” Serious violations carry a penalty of up to $7,000 for each violation.

A willful violation exists “where an employer has demonstrated either an intentional disregard for the requirements of the Act or a plain indifference to employee safety and health.” OSHA’s Field Operations Manual states that “[i]t is not necessary that the violation be committed with a bad purpose or malicious intent to be deemed ‘willful.’ It is sufficient that the violation was deliberate, voluntary or intentional as distinguished from inadvertent, accidental or ordinarily negligent.” Willful violations carry a penalty may of not more than $70,000, but not less than $5,000, for each willful violation.

Penalties for violations of the Act, including those classified as other-than-serious, are set forth at Section 17 of the Act. An employer’s right to negotiate and contest OSHA penalties will be discussed in future posts.

Please see the following links for the announcement and OSHA penalties:

US Department of Labor's OSHA cites South Florida contractor...

SEC. 17. Penalties

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Waiver of Right to Bring Class or Collective Actions May Violate Federal Labor Law

POSTED BY SCOTT T. SILVERMAN ON FEBRUARY 2, 2012

The National Labor Relations Board has ruled that it is a violation of federal labor law to require employees to sign arbitration agreements that prevent them from joining together to pursue employment-related legal claims in any forum, whether in arbitration or in court.

The case examined an agreement under which employees waived their right to a judicial forum and agreed to bring all claims to an arbitrator on an individual basis. The agreement prohibited the arbitrator from consolidating claims, fashioning a class or collective action, or awarding relief to a group or class of employees

The Board found that the agreement unlawfully barred employees from engaging in “concerted activity” protected by the National Labor Relations Act. The Board emphasized that the ruling does not require class arbitration as long as the agreement leaves open a judicial forum for group claims.

Employers may not prohibit class or collective actions in a judicial forum, but may require that arbitrations proceed only 0n an individual basis. Employers that use the kind of class action waivers that the NLRB found unacceptable should consider revising or withdrawing them.

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NLRB Acting General Counsel Issues Second Social Media Report

POSTED BY SCOTT T. SILVERMAN ON FEBRUARY 21, 2012

On January 25, 2012, NLRB Acting General Counsel Lafe Solomon released a second report describing social media cases reviewed by his office.

The Memorandum covers 14 cases, half of which involve questions about employer social media policies. Five of those policies were found to be unlawfully broad, one was lawful, and one was found to be lawful after it was revised.

The remaining cases involved discharges of employees after they posted comments to Facebook. Several discharges were found to be unlawful because they were undertaken pursuant to unlawful policies. But in one case, the discharge was upheld despite an unlawful policy because the employee’s posting was not work-related.

The report highlights two issues that employers need to recognize:

  • Employer policies cannot be so broad that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees.
  • An employee’s comments on social media are generally not protected if they are mere gripes about individual circumstances, which are not made in relation to group activity among employees.


The report represents the Acting General Counsel’s interpretation of the National Labor Relations Act as it applies to new forms of electronic communication. Three cases involving social media questions are currently pending before the Board and those decisions will certainly give further guidance as the application of labor law to social media develops.

The report may be accessed at www.nlrb.gov.

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DOL Issues Notice of Rulemaking to Implement FMLA Amendments

POSTED BY SCOTT T. SILVERMAN ON FEBRUARY 2, 2012

On January 30, 2012, Secretary of Labor Hilda L. Solis announced that the U.S. Department of Labor is issuing a notice of proposed rulemaking to implement new statutory amendments to the Family and Medical Leave Act that would expand military family leave provisions and incorporate a special eligibility provision for airline flight crew employees.

The National Defense Authorization Act for Fiscal Year 2010 recent statutory amendments expanded the FMLA’s military caregiver leave and qualifying exigency leave provisions. The amendments extended military caregiver leave to eligible employees whose family members are recent veterans with serious injuries or illnesses, and expanded the definition of a serious injury or illness to include serious injuries or illnesses that result from preexisting conditions. The amendments also expanded qualifying exigency leave to eligible employees with family members serving in the Regular Armed Forces, and added a requirement that for all qualifying exigency leave the military member must be deployed to a foreign country.

The Airline Flight Crew Technical Corrections Act established a special FMLA hours of service eligibility requirement for airline flight crew members, such as airline pilots and flight attendants, based on the unique scheduling requirements of the airline industry. Under the amendment, an airline flight crew employee will meet the FMLA hours of service eligibility requirement if he or she has worked or been paid for not less than 60 percent of the applicable total monthly guarantee and has worked or been paid for not less than 504 hours during the previous 12 months.

The major provisions of the NPRM include:

  • the extension of military caregiver leave to eligible family members of recent veterans with a serious injury or illness incurred in the line of duty;
  • a flexible, three-part definition for serious injury or illness of a veteran;
  • the extension of military caregiver leave to cover serious injuries or illnesses for both current servicemembers and veterans that result from the aggravation during military service of a preexisting condition;
  • the extension of qualifying exigency leave to eligible employees with covered family members serving in the Regular Armed Forces;
  • inclusion of a foreign deployment requirement for qualifying exigency leave for the deployment of all servicemembers (National Guard, Reserves, Regular Armed Forces);
  • the addition of a special hours of service eligibility requirement for airline flight crew employees; and
  • the addition of specific provisions for calculating the amount of FMLA leave used by airline flight crew employees.

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EEOC Launches Small Business Task Force

POSTED BY SCOTT T. SILVERMAN ON FEBRUARY 2, 2012

The U.S. Equal Employment Opportunity Commission (EEOC) launched an internal task force that will focus on expanding and improving outreach and technical assistance to small businesses. The task force will seek to find avenues in which the agency may better collaborate with the small business community.

The internal task force includes EEOC District Directors from the Birmingham, Charlotte and San Francisco offices; program analysts responsible for outreach from the San Antonio, Los Angeles, and Philadelphia offices; and representatives from the Offices of Field Programs, General Counsel, Legal Counsel, and Communications and Legislative Affairs.

The task force will try to make it easier for owners of small businesses to quickly access the information they need to understand their legal obligations so they are able to comply with those obligations.

The Task Force will work during 2012 to develop recommendations to the Commission, which will be presented in a public Commission meeting.

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Eleventh Circuit: Discrimination Against Transgender Employees On The Basis of Gender Non-Conformity Constitutes Sex-Based Discrimination

POSTED BY SCOTT T. SILVERMAN AND KIMBERLEY A. LOPEZ ON DECEMBER 19, 2011

In a decision issued on December 6, 2011, the Eleventh Circuit has ruled that an employer may not discriminate against a transgender employee on the basis of gender non-conformity. That case, Vandiver Elizabeth Glenn v. Sewell R. Brumby, -- F. 3d --, 2011 WL 6029978 (December 6, 2011) (11th Cir. 2011), makes clear that employers can be liable for sex or gender discrimination in taking adverse action against a transgender or transsexual, as with any employee, on the basis of the employee's failure to comply with gender-based behavioral norms and gender stereotypes.

The Plaintiff in Glenn was born a biological male, and in 2005 was diagnosed with Gender Identity Disorder ("GID").  In 2005, Glenn began taking steps to transition from male to female. In 2006, Glenn advised her direct supervisor that she was a transsexual and in the process of becoming a woman.  After Glenn advised her supervisor in 2007 that she was ready to proceed with gender transition and would begin coming to work as a woman, the head of Glenn's office, Defendant, Sewell Brumby, terminated her because "Glenn's intended gender transition was inappropriate, that it would be disruptive, that some people would view it as a moral issue, and that it would make Glenn's coworkers uncomfortable."  Brumby, testified in his deposition that he fired Glenn because he considered it "inappropriate" for her to appear at work dressed as a woman and that he found it "unsettling" and "unnatural" that Glenn would appear in woman's clothing.  Brumby further admitted that his decision to fire Glenn was based on "the sheer fact of the transition."

The Eleventh Circuit affirmed summary judgment in Glenn's favor explaining that "[a] person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes." Because the case law already established that gender stereotype discrimination is prohibited, the Court held that discrimination against a transgender or transsexual individual because of her gender-nonconformity is clearly sex discrimination regardless of whether it is on the basis of sex or gender.  Brumby's deposition testimony provided direct evidence that he acted on the basis of Glenn's gender non-conformity, which mandated summary judgment for Glenn.

Although the case dealt with claims under the Equal Protection Clause of the Constitution, the decision clearly applies to sex discrimination charges against private employers under Title VII. As such, employers should ensure that workplace policies protect against transgender discrimination.  In addition, the decision reinforces that employers must prohibit discrimination against any employee on the basis of gender stereotypes and gender-based behavioral norms.

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Hostile Work Environment Refresher: What Employers Should (Still) Be Thinking About

POSTED BY JENNIFER T. WILLIAMS ON DECEMBER 9, 2011

Workplace harassment is back in the news again recently, both in terms of allegations against high-profile public figures and the increasing frequency with which juries have been awarding multi-million dollar verdicts to employees.  With this heightened awareness of workplace harassment of all types, a refresher of workplace steps every employer can take to avoid harassment claims is particularly timely.

Employers should be proactive in preventing and addressing harassment issues, both from a legal standpoint and the standpoint of supporting positive workplace morale.  The following measures are essential to addressing workplace harassment:

  • Implement a comprehensive anti-harassment policy which expressly prohibits all forms of verbal and non-verbal harassment, including touching, lewd comments, jokes or references, epithets, slurs and nicknames. The policy should explain that such conduct by managers, supervisors, employees, customers, and third parties is also prohibited. The policy should contain a strong anti-retaliation provision applicable to all complaints.
  • Incorporate a complaint procedure for employees who have believe they have been harassed or have witnessed harassing conduct. Employees should have multiple options for submitting complaints to avoid being forced to make complaints to the alleged harasser.  Encourage employees to come forward with complaints where necessary.
  • Ensure that these policies are properly communicated and distributed to all employees. Policy distribution and acknowledgement during new hire orientation is important as well as annual or bi-annual refreshers so that employees are reminded of the employer’s rules and expectations for workplace conduct.
  • Train all employees on the importance of anti-harassment and anti-retaliation policies, including both supervisors and non-supervisors.  Set the tone that compliance is critical enough to necessitate training from the top to bottom of the organization.
  • Safeguard against retaliation by conducting prompt, confidential investigations.  Communicate to employees that complaints will result in discipline against the harasser, including termination where appropriate.
  • Take action where necessary to address and eliminate harassing conduct.  Such actions may include changing the employee’s supervisor; reversing an unwarranted tangible action (such as demotion, pay reduction, or schedule change); disciplinary action up to termination of the harasser; individualized coaching/training; or a combination of these actions.
  • Create an active, visible human resources presence in the workplace so that employees are familiar with and feel comfortable addressing workplace issues with human resources personnel.

For more information on these issues, the EEOC provides extensive enforcement and policy guidance on employer liability for harassment:
http://www.eeoc.gov/policy/docs/harassment.html
http://www.eeoc.gov/policy/docs/currentissues.html

The Florida Commission on Human Relations also provides an informational video on sexual harassment.

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Useful Resources