Amendment to Florida Rules Increases Likelihood of Summary Judgment in State Court

The Florida Supreme Court recently amended Florida Rule of Civil Procedure 1.510 (Summary Judgment), adopting the less restrictive federal summary judgment standard as articulated by the United States Supreme Court in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).  Summary judgement is the procedural mechanism whereby lawsuits may be disposed of prior to a trial if the judge determines that, based on the uncontested material facts in the case, there is no way for the nonmoving party to win.  The amended Rule 1.510 will apply to any summary judgment motion decided on, or after, May 1, 2021, including in pending cases.  See In re Amends. to Fla. R. Civ. P. 1.510, No. SC20-1490, 309 So. 3d 192 (Fla. Dec. 31, 2020).

In its decision to amend Rule 1.510, the Florida Supreme Court noted key distinctions between the existing federal and Florida jurisprudence with regard to summary judgment motions. First, federal courts have long applied a far narrower definition to the term “genuine issue of material fact.” When determining whether a genuine issue of material fact exists, federal courts ask whether “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”  In re Amends. to Fla. R. Civ. P. 1.510, 309 So. 3d at 193 (internal quotations omitted).  Florida courts, on the other hand, have historically denied summary judgment where any competent evidence creates an issue of fact, no matter how “credible or incredible, substantial or trivial,” so long as “the slightest doubt is raised.”  Id.  As a result, the vast majority of Florida state court summary judgment motions are denied, and Florida litigants are routinely forced to spend significant time and resources litigating and trying incredibly weak cases (or entering into large settlements).  This chain of events is far less common under the federal summary judgment standard, which attempts to nip meritless lawsuits in the bud. Taking all of this into account, the Florida Supreme Court explained that its objectives in adopting the federal standard are “to improve the fairness and efficiency of Florida’s civil justice system, to relieve parties from the expense and burdens of meritless litigation, and to save the work of juries for cases where there are real factual disputes that need resolution.”  Id. at 194.

For many state court practitioners and their clients, the new Florida standard is a positive change. From an employment litigation defense perspective, the change will afford a greater opportunity to dispose of certain cases early on and will reduce the pressure on defendants to pay large settlements to avoid the costs of defending weak cases through trial.

If you have any questions regarding the new Florida summary judgment standards, or any other employment law questions, please do not hesitate to contact Jackson Lewis.

California Court Upholds Employer’s Refusal To Hire Applicant Who Failed Pre-Employment Drug Test Due To Medical Marijuana Use

A federal court in California dismissed the disability discrimination claims of a job applicant who failed a pre-employment drug test due to medical marijuana use, holding that he did not sufficiently prove that he was disabled.  More specifically, the court concluded that the applicant’s “subjective belief” that he suffered from “chronic back pain” was insufficient to establish that he was disabled for purposes of the California Fair Employment and Housing Act (“FEHA”) where he failed to “provide any supporting documentation . . . to substantiate the nature of his purported physical disability or any consequent restrictions or limitations on his ability to perform his work.” Espindola v. Wismettac Asian Foods, Inc., No. 2:20-cv-03702 (C.D. Cal. Apr. 28, 2021).

Click here to read the full article on the Jackson Lewis website.

Connecticut High Court to Decide If Women-Only Workout Area Violates State Anti-Discrimination Law

  On May 7, 2021, the Connecticut Supreme Court will hear oral argument in the case of Commission on Human Rights & Opportunities (CHRO) v. Edge Fitness, LLC, et al., SC 20538 (Conn.).  The case presents an issue of first impression and arises out of the State of Connecticut’s claim that a separate women-only workout area maintained by Edge Fitness violates the state’s public accommodations statute, CGS 46a-64.

Connecticut’s CGS 46a-64 prohibits businesses (and others) from discriminating, segregating, or denying anyone full and equal accommodations in any place of public accommodation because of their sex, gender identity, race, color, age, national origin, or any other group identified in the statute.

Since approximately 2014, Edge Fitness has offered a “women only” workout area (WOA) in its clubs. The purpose of the WOAs is to give female members the option of working out in a private, female-only area where they can be more comfortable, less self-conscious, and more able to enjoy the experience of exercising.

At the public hearing of this matter, University of Connecticut Professor Diane Quinn, PhD, testified about the psychological concepts of sexual objectification and self-objectification many women experience when exercising in the presence of men. In her opinion, the objectification that women experience in places like exercise clubs can lead to body shame and self-consciousness, impeding women’s athletic performance and discouraging them from exercising. The WOA is a way of addressing those issues. Dr. Quinn also testified that men and women are not the same in this regard and that men do not experience sexual objectification or self-objectification to the degree, or in the same way, that women do.

In 2016, the WOA was challenged by a male former gym member on the grounds that it violated Connecticut’s public accommodation anti-discrimination statute because it discriminated against men. Edge Fitness received favorable rulings before the Office of Public Hearings and the Superior Court. In July 2020, Superior Court Judge John Cordani held that the WOA does not violate the state’s public accommodations law. He concluded, “[T]he uncontroverted evidence in the record, which is supported by common experience, is that if the women only work out areas were eliminated, and women were deprived of the choice to exercise without men present, women would suffer from sexual objectification, extreme embarrassment, anxiety, stress, and many would choose not to exercise in public accommodations.”

The CHRO appealed again and the Supreme Court selected the case for an immediate review. Amicus briefs were filed by the Jewish Federation of Greater Hartford, the Muslim Coalition of Connecticut, and approximately a dozen other religious organizations in support of Edge Fitness and the WOA. The ACLU, GLBTQ Legal Advocates & Defenders, and the Quinnipiac University School of Law Legal Clinic filed amicus briefs on behalf of the state.

The case has been litigated by James Shea and Allison Dearington of Jackson Lewis’ Hartford office.

If you have questions about public accommodations or any other employment law issues, please do not hesitate to contact Jackson Lewis.

2,000 COVID-19-Related Employment Lawsuits Filed in the U.S.: An Analysis of the Data and Trends

On April 6, 2021, the total number of COVID-19-related employment complaints filed in United States courts passed the 2,000 mark.  Although it took eight months to reach the first 1,000 complaints (March–November 2020), it took less than five months to go from 1,000 to 2,000. Indeed, December 2020 through March 2021 included the four busiest months for new COVID-19-related employment complaints since the start of the pandemic.

As the country accelerates past the 2,000-complaint milestone, we note the following facts and trends using Jackson Lewis’ COVID-19 Employment LitWatch:

  • States with the most complaints filed are California (487), New Jersey (267), Florida (142), New York (137), Ohio (127), Texas (105), and Michigan (74).  Since January 1, 2021, states with the most, new complaints (in descending order) are California, New Jersey, Ohio, New York, Florida, Texas, and Michigan.
  • California is beginning to eclipse the rest of the country. Since January 1, 2021, California alone accounts for approximately 29% of all complaints filed in the United States, up from 21.4% of the first 1,000 complaints.  New Jersey holds steady in the number two spot, with 13% of complaints filed in 2021, slightly up from 12.6% of first 1,000 complaints.  Together, California and New Jersey account for 42% of all complaints filed in 2021.
  • California and New Jersey plaintiffs continue to flock to state court. Since January 1, 2021, 96.6% of California complaints and 89% of New Jersey complaints have been filed in state court.  During that same time period, outside of California and New Jersey, approximately 57% of complaints were filed in state court, and 43% in federal court.
  • Nearly all complaints now include allegations of wrongful termination. Since January 1, 2021, approximately 83.3% of complaints include allegations of wrongful termination.  This number has been steadily increasing throughout the pandemic.  Approximately 74% of the first 1,000 complaints included an allegation of wrongful termination.
  • The Healthcare industry continues to bear the brunt of COVID-19 litigation, but the Retail and Consumer Goods industry is experiencing a sharp increase. Since January 1, 2021, approximately 25.1% of all new complaints have targeted the Healthcare industry, which has been fairly constant throughout the pandemic.  The Retail and Consumer Goods industry, however, is experiencing a dramatic increase from 7.5% of the first 1,000 complaints filed, to approximately 13.7% of complaints filed in 2021.
  • “Disability, Leave & Accommodation,” “Discrimination/Harassment,” and “Retaliation/Whistleblower” continue to account for nearly all claims. These categories of complaints accounted for approximately 76% of the first 1,000 complaints but jumped to 85.5% of all complaints filed in 2021.
  • Class Action Lawsuits. Approximately 86 COVID-19-related employment class action complaints have been filed across the United States, primarily in California (36), Florida (14), Illinois (6), and New York (6).  Eighteen of these class actions were filed in 2021.

If you have any questions regarding COVID-19-related litigation, or any other employment law issues, do not hesitate to contact Jackson Lewis attorneys.

Federal Disability Discrimination Law Does Not Require Websites Be Accessible, Appeals Court Holds

A website is not a “place of public accommodation” and an inaccessible website is not necessarily equal to the denial of goods or services, a federal appeals court has held in a groundbreaking decision on disability discrimination under Title III of the Americans with Disabilities Act (ADA). Gil v. Winn-Dixie Stores, Inc., No. 17-13467 (11th Cir. Apr. 7, 2021).

While the Eleventh Circuit joins several other circuits in holding a website is not a “place of public accommodation” under Title III, it went further in expressly holding that, under the facts of the case, an inaccessible website is not necessarily tantamount to the denial of goods or services because the website lacked an auxiliary aid that would enable the website to be read aloud by screen-reader technology.

Click here  to read the full article on the Jackson Lewis website.

FAA Preempts New Jersey’s Implied Restriction on Use of Arbitration Agreements, Court Finds

To the extent that it attempted to limit the prospective waiver of procedural rights in favor of arbitration or other alternative dispute resolution, the 2019 amendment to the New Jersey Law Against Discrimination (NJLAD) is preempted by the Federal Arbitration Act (FAA), a New Jersey federal court has ruled in an unpublished opinion. New Jersey Civil Justice Institute, et al. v. Grewal, No. 19-17518 (D.N.J. Mar. 25, 2021).

The NJLAD amendment in Section 12.7, passed in March 2019, sought to make unenforceable any provision in an employment contract that waived any substantive or procedural right relating to discrimination, retaliation, or harassment claims. The court reasoned that, in violation of Section 2 of the FAA, Section 12.7 effectively disfavors agreements to arbitrate certain types of claims.

Click here to read the full article on the Jackson Lewis website.

Out-of-State Employer Must Comply with Montana Wrongful Discharge Act, Montana Court Rules

Montana’s Wrongful Discharge from Employment Act (WDEA) requires that employers have just cause for discharge of employees after completion of an initial probationary period. A recent Montana case highlights state-specific issues for employers to consider if they have employees who work in Montana, even if those employees live in, or are based out of, another state.  McCue v. Integra Imaging, P.S., CV-19-147, 2021 U.S. Dist. LEXIS 30477 (D. Mont. February 18, 2021). In particular, out-of-state employers should be aware that Montana courts may disregard a choice of law provision in an employment contract selecting the laws of another state if an employee performs most of the employee’s work in Montana. Employers with workers performing most of their job duties in the state of Montana should be prepared to comply with Montana’s just cause standard for discharge and provide employees with a termination letter indicating the just cause basis for discharge.

In McCue v. Integra Imaging, P.S., Integra Imaging, a Washington-based medical group, merged with Missoula Radiology, then entered into employment contracts with Missoula Radiology’s employees, including Dr. Timothy McCue.  The parties’ employment contract contained a provision allowing Integra to terminate McCue’s employment without cause.  The employment contract also contained a Washington choice of law provision.

McCue’s practice was located in Missoula, Montana, where he completed all of his work duties. Following the merger, he provided medical services to citizens of both Montana and Washington.  McCue obtained a license to practice medicine in Washington and spent approximately 20% of his time reviewing radiology scans for Washington patients. He spent the rest of his time focused on Montana patients.

Following repeated performance deficiencies over an eighteen-month period, Integra’s Board voted to terminate McCue’s employment under the “without cause” provision of his contract.  Integra sent McCue a letter informing him that the Board had voted to end his employment based on the recommendation of the Board’s Quality Committee and offered him the option to voluntarily resign instead, which he did.  The letter did not mention McCue’s alleged performance problems or otherwise identify a specific reason for ending his employment.

McCue sued Integra, claiming among other things that by voting to terminate him under the “without cause” provision, Integra violated Montana’s WDEA.  McCue also argued that Integra was barred from relying upon any evidence of his performance deficiencies to substantiate the discharge because Integra did not cite them as reasons for his discharge in the termination letter.

McCue moved for summary judgment on his claims.  In ruling on the motion, the U.S. District Court for Montana first established that the employment contract was subject to Montana, not Washington, law because McCue primarily performed his duties in Missoula, Montana.  The court then denied his motion and concluded that certain issues of fact remained, including whether McCue’s termination had been “for cause.”

This case presents several important reminders and best practices for employers operating in Montana including, but not limited to:

  • If an employee is primarily performing their duties within Montana, any employment agreement will likely be subject to Montana law; and
  • If an employer voluntarily provides an employee with a written letter of termination, the employer should clearly articulate in the letter the bases for the discharge.

Jackson Lewis attorneys are ready and able to help employers navigate the complexities of employment law in Montana, and anywhere else in the U.S.  Please contact us if you have questions or need assistance.

How Little May an Employee Allege for Retaliation Protection?

The question of when a worker has raised concerns about discrimination sufficient to gain retaliation protection has not been answered consistently and clearly by courts. A case in Texas may provide clarification.

The Texas Supreme Court, in Apache Corp. v. Davis, has been asked to evaluate a lower court ruling on the subject.  The lower court had ruled that there must be some indication the protected characteristic at issue motivated the conduct opposed. Apache Corp. v. Davis, 573 S.W.3d 475 (Apr. 23, 2019).

Click here to read the full article on the Jackson Lewis website.

Ohio’s Employment Law Uniformity Act: New Prerequisites and Defenses for Discrimination Claims

Ohio employment discrimination claims filed on or after April 15, 2021, will be subject to certain prerequisites under the newly enacted Employment Law Uniformity Act (ELUA).  Jackson Lewis’ in-depth webinar regarding the ELUA is available here.

The ELUA updates the state’s antidiscrimination statute (Ohio Revised Code § 4112), which has been in effect since 2001. The law’s prohibition against employment discrimination on the basis of race, color, religion, sex, military status, national origin, disability, age, or ancestry remains the same. Changing, though, are the statutorily required prerequisites to filing a civil suit and the time within which a claimant may do so.

The changes represent further efforts to ensure federal and Ohio laws are more in line in dealing with employment discrimination claims.

The changes under the ELUA for employers with at least four employees include:

  • Much like federal discrimination lawsuits, which require that a plaintiff first file a charge of discrimination with the Equal Employment Opportunity Commission, Ohio employees must file a charge with the Ohio Civil Rights Commission (OCRC) before filing a lawsuit asserting state law claims.
  • The ELUA shortens the statute of limitations for employment discrimination lawsuits from six years to two years. The new two-year statute of limitations is tolled while a charge is pending before the OCRC. Claimants have two years to file an OCRC charge.
  • The ELUA codifies an affirmative defense to hostile work environment harassment claims created by federal case law. Employers may defeat a claim that an employee’s supervisor created a hostile work environment by proving: (1) the employer exercised reasonable care in preventing or promptly correcting harassment in the workplace; and (2) the employee unreasonably failed to invoke the employer’s complaint procedures or other preventive or corrective opportunities.
  • The ELUA limits personal liability for managers and supervisors.
  • Finally, the ELUA greatly simplifies Ohio’s age discrimination framework, aligning the process for filing age discrimination claims in Ohio with other forms of discrimination. While the old framework permitted employees multiple avenues to court, each with its own statute of limitations and remedies, the ELUA subjects all age discrimination lawsuits to a two-year statute of limitations and administrative exhaustion requirements.

The ELUA provides advantages to employers that prior law did not:

  • As its name implies, the ELUA makes the procedures for various employment discrimination claims more uniform. This makes litigating an alleged discrimination claim more predictable.
  • The shorter statute of limitations may reduce an employer’s burden and costs associated with retaining employee records.
  • Limited liability for individual supervisors and managers may mean simplified litigation.
  • The affirmative defense provides employers with steps to take to comply with Ohio employment discrimination law and potentially avoid hostile work environment liability.

Employers should therefore:

  • Review their policies against discrimination, harassment, and retaliation;
  • Make sure the policies are available to all employees and employees know where to find them;
  • Ensure proper procedures are in place to receive and respond to concerns;
  • Train all employees, especially managers and leadership, on these policies and available avenues to raise concerns; and
  • Train leadership and human resources to receive and respond to complaints, including proper investigation procedures and documentation practices.

If you have any questions regarding the ELUA or other workplace issues, please contact a Jackson Lewis attorney.


Seasonal Employee May Pursue Disability-Based Hostile Work Environment Claim, Court Rules

Reversing a district court’s grant of summary judgment, the Iowa Court of Appeals held an employee presented sufficient evidence for her disability-based hostile work environment claim to proceed to trial, despite the relatively short period of her employment. Munoz v. Adventure Lands of America, Inc., 2021 BL 37057 (Iowa Ct. App. Feb. 3, 2021).

In Munoz, from May 2017 until September 2017, an amusement park employed a seasonal employee with a medical condition that caused her to lose consciousness without warning. Although the amusement park initially moved the employee to a safer department and assignment in case she lost consciousness on the job, the employee alleged that several of her supervisors subjected her to almost daily derogatory comments about her medical condition or its symptoms. One supervisor allegedly asked her: “why the hell [are you] even working with restrictions like that?” Another supervisor told her she “need[ed] to work less because [she was] being a b****.” A third supervisor called her a “gangbanger” and “worthless” on multiple occasions. According to the employee, her supervisors also ridiculed her almost daily due to her frequent need to use the bathroom. The employee reported these incidents to the director of her department, but the director failed to take any action and even participated in belittling the employee by calling her names in a group email.

The employee eventually filed suit alleging workplace harassment and hostile work environment based on disability, among other claims of discrimination. The amusement park moved for summary judgment on all claims and the district court granted the motion.

On appeal, the Iowa Court of Appeals reversed the district court’s ruling on the disability-based hostile work environment claim. The appellate court noted that hostile workplace claims are difficult to prove and typically require an employee to produce evidence of severe and pervasive harassment that affects the terms and conditions of employment – i.e., extreme mistreatment over an extended period of time. Nonetheless, duration of time is just one of several factors to be considered when assessing a hostile work environment, the court stressed. In the case of a seasonal worker who was employed only for a few months, the court said, other factors may weigh more heavily. In this case, the court ruled the employee presented evidence that the harassing remarks were made almost daily, that the remarks were made by direct supervisors (as opposed to coworkers), and that the mistreatment allegedly left the employee traumatized. Accordingly, the appellate court concluded a jury could find that a hostile work environment existed, so summary judgment must be denied.

This decision demonstrates that employers can face liability for discrimination and harassment regardless of how long the employee was employed or whether the employee is classified as a full-time, part-time, or seasonal employee. Indeed, the frequency of the alleged discriminatory treatment, and the identity of the alleged harassers, must always be considered.

If you have any questions regarding this decision or other workplace issues, please contact a Jackson Lewis attorney.