New Connecticut CROWN Act Bans Natural Hair Discrimination in the Workplace

Connecticut has joined the growing list of states that prohibit discrimination on the basis of traits historically associated with race, including hair. On March 10, 2021, Connecticut adopted legislation to ban natural hair discrimination in the workplace.

In 2019, California was the first state to implement a law called the CROWN Act, an acronym for Creating a Respectful and Open World for Natural Hair. Other states that have joined California include Colorado, Maryland, New Jersey, New York, Virginia, and Washington.

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Regular Attendance is Essential Even if Employer was Lenient in the Past, Fifth Circuit Holds

An employer’s past leniency in applying and enforcing its attendance policy did not contradict the employer’s later position that regular worksite attendance was required for employment, the U.S. Court of Appeals for the Fifth Circuit has held. Weber v. BNSF Railway Co., No. 20-10295 (5th Cir. Feb. 24, 2021).

This provides guidance for employers unsure whether accommodating an employee’s absences creates a “precedent” making it harder in the future to establish that regular attendance is an essential job function. The Fifth Circuit has jurisdiction over Louisiana, Mississippi, and Texas.

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Employer Not Liable for Spouse’s COVID-19 Infection, California Court Rules

One year into the COVID-19 pandemic, U.S. courts are wrestling with a growing number of new legal theories related to COVID-19.  Not surprisingly, California – the most populous state with some of the most employee friendly laws and courts – leads the way with the most COVID-19 employment lawsuits filed. See Jackson Lewis COVID-19 Employment Litwatch.  Nonetheless, a Northern District of California decision, dismissing an attempt by an employee and his wife to hold an employer liable for COVID-19-related injuries, provides employers with some welcome relief.

In Kuciemba v. Victory Woodworks Inc., husband and wife Robert and Corby Kuciemba alleged that Robert worked at a construction site in San Francisco and that, in July 2020, Robert’s employer transferred employees from the company’s Mountain View, California job site to the San Francisco site, despite knowing the transferred employees had likely been exposed to COVID-19 in Mountain View.  No. 3:20-cv-09355-MMC (N.D. Cal. Feb. 22, 2021).  Once in San Francisco, the transferred employees allegedly worked closely with Robert, without adequate safety precautions being put in place.  Soon thereafter, both Robert and Corby tested positive for COVID-19 and were hospitalized.  Corby, a high-risk individual, was hospitalized for an extended period.

The Kuciembas sued Robert’s employer in state court, alleging claims for negligence and violation of public nuisance laws (that resulted in Corby contracting COVID-19), and loss of consortium (suffered by Robert because of Corby becoming sick).  All of these claims were rooted in the assertion that the employer knew or should have known that the transferred employees had been exposed to COVID-19, and that the employer failed to follow local and federal guidelines and orders for maintaining a safe workplace.

The employer successfully removed the case to federal court on diversity jurisdiction grounds (because the company is based in Nevada), and then moved to dismiss all claims. On February 22, 2021, the district court dismissed the case, without prejudice.  First, the court ruled that Corby’s public nuisance claim failed for lack of standing.  Next, the court ruled that Corby’s various negligence claims, as well as Robert’s loss of consortium claim, were all barred by California workers’ compensation provisions, which provide the sole and exclusive remedy for the employee and the employee’s dependents. See Cal. Labor Code §§ 3600, 3602.

The court’s ruling is gratifying for management-side defense attorneys who have been arguing that states’ workers compensation laws preempt most allegations of COVID-19-related injuries or damages resulting from exposure to the virus in the workplace. The combination of worker’s compensation protections (which here extended to the spouse) and the myriad of states that have passed various forms of immunity for COVID claims – including, but not limited to, Georgia, Ohio, Indiana, Wisconsin, and South Carolina – provide employers with their own form of vaccine to the onslaught of litigation created by COVID-19.

Many COVID-19 employment lawsuits raise novel legal issues, so it is important for employers to monitor COVID-19 employment litigation trends. Fortunately, Jackson Lewis has a dedicated team tracking and responding to these developing issues.  Please contact Jackson Lewis if you have questions or need assistance regarding any COVID-19 workplace concerns.

Texas Amended Rule 106 on Substitute Service: Have You Been Served?

Attempting to align the Texas legal system with current realities, effective December 31, 2020, Rule 106 of the Texas Rules of Civil Procedure is amended to allow substitute service by “social media, email, or other technology ….”  Indeed, any plaintiff faced with the previous options for substitute service (essentially, publication in a physical newspaper or posting a note on the courthouse bulletin board) sees the value in modernizing the rules for service of process.  Nonetheless, the new rule and comments to the rule are sparse in guidance and arguably create more problems.

The comments to amended Rule 106 state, “a court may, in proper circumstances, permit service of citation electronically,” but they provide no real guidance as to the standard of evidence required. Tex. R. Civ. P. 106 (cmts).  Thus, it may fall to plaintiffs to educate the judiciary on the technology proposed for substitute service, its limitations and capabilities, and how to prove a defendant regularly or recently used that technology.  This, in turn, may open a Pandora’s box of privacy issues, including what role (if any) social media providers may play if they are expected to share user membership or activity information.

The comments also state that the court should “consider whether the technology actually belongs to the defendant and whether the defendant regularly uses or recently used the technology.”  Tex. R. Civ. P. 106 (cmts).  This implies that a defendant could be served by email or a social media account, but the text of Rule 106(b)(2) is silent with regard to the defendant’s ownership of the utilized technology.  Surely, if a celebrity posts about a class action lawsuit on their Twitter feed that would not “be reasonably effective to give the defendant notice of the suit,” simply because the defendant follows the celebrity’s Twitter feed. But, what if that defendant retweeted the post?

The rule is also silent as to joint or multi-user accounts, profiles, or emails, and the possibility of an authorized user deleting the email/service of citation prior to the targeted defendant reading it.

Despite its shortcomings, amended Rule 106 is clearly an overdue step toward embracing technology.  Even before the pandemic relegated a good portion of the country to virtual concerts and Zoom happy hours, many were already “living” online.  Indeed, this rule change may be helpful for companies or employers frustrated by evasive former employees.  Consider an employee who failed to update their home address, left the company, and subsequently began competing in violation of their non-compete agreement.  Serving that employee with a cease and desist letter or the petition may prove difficult, especially now when many people are working from “anywhere.”  This amended rule may provide the opportunity for an employer to simply serve the former employee through the former employee’s LinkedIn or Facebook account.

Amended Rule 106 signals a recognition that communication methodologies are changing.  Employers should be cognizant of their social presence and how individuals managing the company’s online interactions handle communications (legal and otherwise).  Jackson Lewis attorneys can help employers develop policies regarding social media and technology use, including cybersecurity, to better manage their workforce and communications in this dynamic environment.

U.S. Supreme Court Denies Petition Seeking to Scrap McDonnell Douglas Burden-Shifting Analysis

Arguing the decades-old analysis is no longer helpful to anyone, Reginald Sprowl petitioned the U.S. Supreme Court to scrap application of the McDonnell Douglas burden-shifting analysis in Title VII race discrimination and retaliation claims. On January 19, 2021, the Supreme Court rejected Sprowl’s petition and denied certiorari. Sprowl v. Mercedes-Benz U.S. Int’l, Inc., 815 Fed. Appx. 473 (11th Cir. 2020), petition for cert. denied (No. 20-790).

Sprowl, a Black technician for a major car company, filed an internal complaint against his team lead for allegedly making racist remarks. Following an investigation, the team lead was fired. Sprowl later felt his supervisor and coworkers blamed him for his team lead’s discharge and that he had been denied promotions because of his race and his previous complaint. Sprowl resigned from the company and filed a federal lawsuit alleging discrimination and retaliation in violation of Title VII.

The company moved for summary judgment on Sprowl’s claims. The trial court applied the McDonnell Douglas test. The test requires a complainant in a Title VII case who does not have direct evidence of discrimination to carry the initial burden under the statute for establishing a prima facie case of racial discrimination. In this case, he must show (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that his job application was rejected; and (iv) thereafter, the company continued to seek applicants. After the prima case is established, the burden shifts “to the employer to articulate some legitimate, nondiscriminatory reason” for its action. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Then, the burden shifts back to the plaintiff to present evidence to show that the employer’s stated reason is a “pretext,” which, if proven, gives rise to an inference of unlawful discrimination.

Applying McDonnell Douglas to Sprowl’s claims, the trial court held that, even if Sprowl made a prima facie case of discrimination and retaliation, the company provided several legitimate, non-discriminatory reasons for not promoting him, including the fact that Sprowl had not demonstrated the requisite skills for a promotion, while other candidates had. Because Sprowl failed to show the company’s explanation was mere pretext, the court granted summary judgment and dismissed the case. Sprowl appealed and the U.S. Court of Appeals for the Eleventh Circuit affirmed the trial court’s ruling.

In his petition to the U.S. Supreme Court, Sprowl argued that the McDonnell Douglas burden shifting analysis is unhelpful, overly complicated, and should be replaced by a “but-for” standard. When it comes to Title VII, the adoption of the but-for causation standard means a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision. So long as the plaintiff’s race was one but-for cause of that decision, that would be enough to impose liability. Sprowl cited several recent U.S. Supreme Court cases in support of his petition. Nonetheless, on January 19, 2021, the Court declined to hear his case.

If you have any questions about this case, or any other employment law issues, do not hesitate to contact Jackson Lewis attorneys.

2021 Is Here: Time for Your Annual Employment Law Compliance Checkup

The year 2020 is finally behind us!  We might not be able to breathe a sigh of relief just yet but the beginning of a new year is still a good time to pause and review your labor and employment law compliance for the year.  COVID-19 is still with us and demanding our attention but do not let other employment law changes or annual requirements slip past.  A thorough employment law compliance review will help you to avoid litigation and put your best foot forward in defending agencies charges and employment lawsuits if it occurs.

Review Employee Handbook

Changes to state and federal laws generally take effect at the beginning of the year.  That makes January/February a good time to review your employee handbook and determine what policies need to be revised or added to comply with these changes.  A few of the most common changes affecting employers this year include:

  • Paid Leave
  • Drug and Alcohol Policies
  • Telework Policies
  • Temporary Policies

Additionally, if you have not updated your workplace harassment policy recently, now is the time.  A strong policy containing clear steps and options for reporting harassment is an important tool for creating and maintaining a professional work environment, as well as fundamental to an employer’s affirmative defense to an allegation of harassment that does not involve an adverse employment action. Known as the “Faragher/Ellerth affirmative defense,” referring to the companion cases of Faragher v. Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), the U.S. Supreme Court established this defense if the employer can demonstrate: (1) it took reasonable steps to prevent and promptly correct sexual harassment in the workplace, and (2) the aggrieved employee unreasonably failed to take advantage of the employer’s preventive or corrective measures.

Schedule Required Training

As you plan your training and development activities for the year, be sure to schedule workplace harassment prevention training, which is required in some states and recommended by the Equal Employment Opportunity Commission (EEOC) for all employers.  Consider adding training on diversity and inclusion, unconscious bias, and management compliance training on the Family Medical Leave Act (FMLA), Americans with Disabilities Act (ADA), and performance documentation.  Training your managers to understand their responsibilities as agents of the employer to ensure the company engages in an interactive discussion with employees about ADA accommodations, whether the employee requests an accommodation directly or using “plain English,” is one of the best ways to avoid disability discrimination charges and focus any complaints on an internal audience instead of the EEOC, a plaintiff’s attorney, or a jury.

Review Your Employment Application

Does your current application form contain the appropriate disclaimers and disclosures required by state and federal laws in the states where you have employees?  Check your application for prohibited inquiries as well.  Currently 28 states ban salary history inquiries and 34 states have passed some form of “Ban the Box” or “fair chance” legislation limiting criminal history inquiries.  When reviewing your application, keep in mind that a seemingly minor error can quickly snowball into major legal headaches.

Other Reminders

  • Minimum wage requirement increased in 26 states this year.
  • Increases in employee count may mean you are subject to additional employment laws. For example, if you increased to 50 or more employees you are now subject to FMLA and the Affordable Care Act.
  • Adding government contracts may trigger additional requirements.

Let’s hope that the year 2021 follows the old adage about March.  Since it came it like a lion, may it go out like a lamb!

Jackson Lewis attorneys are available to help you understand these issues. Please contact the Jackson Lewis attorney with whom you regularly work if you have questions or need assistance with compliance issues that can help prevent, or defend against, litigation.

School District Sanctioned for Failing to Preserve Evidence After Receiving EEOC Charge

A Maryland federal district court’s decision underscores the need to preserve evidence once notified of a potential lawsuit and the significant consequences for not doing so.

In Eller v. Prince George’s Cty. Pub. Sch., 2020 U.S. Dist. LEXIS 234367 (D. Md. Dec. 11, 2020), an employment discrimination case, the court found the school district’s failure to keep disciplinary records on harassment of a transgender teacher after it was aware of the teacher’s Equal Employment Opportunity Commission (EEOC) charge was sanctionable.

In 2011, the plaintiff, a middle school teacher, informed her school principal she would be transitioning from male to female. When the teacher began wearing traditionally feminine clothing, she was allegedly harassed by staff and students. Over the next few years, the teacher transferred to several different schools in the district to escape the alleged harassment, but the harassment continued. In 2017, the teacher resigned because of the alleged harassment.

During her employment, the teacher repeatedly complained about harassment, including by submitting complaints to the district on student discipline referral forms (PS-74 forms) and by filing a June 2015 charge of discrimination with the EEOC. The school district received notice of the EEOC charge in July 2015. In 2017, the EEOC found reasonable cause to believe the teacher had been subjected to harassment and retaliation.

In 2018, the teacher filed a lawsuit against the school district. At the close of discovery, the teacher moved for sanctions against the school district, claiming it had destroyed or lost the PS-74 forms and relevant surveillance camera footage and emails.

The court found that sanctions for spoliation of evidence were appropriate because: (1) the school district’s duty to preserve evidence arose when it first received notice of the EEOC charge in July 2015; (2) the PS-74 forms related to student disciplinary matters, but no longer existed and were “spoliated”; (3) the school district failed to take reasonable steps “to even attempt to ensure” the PS-74 forms were preserved; and (4) the failure to preserve the PS-74 forms was “grossly negligent” because the school district had an official policy regarding the preservation of PS-74 forms. However, the court did not find the school district acted in bad faith because there was no evidence it intentionally destroyed the missing PS-74s. The court also rejected the teacher’s motion for sanctions regarding missing surveillance camera footage or emails because the teacher never notified the school that camera footage might be relevant and there was no evidence any emails were destroyed after July 2015.

As a sanction for spoliation of evidence, the court ordered that the school district not be allowed to offer any additional evidence of the contents of the missing PS-74 forms at trial and the presiding judge, if appropriate, should inform the jury the PS-74 forms were lost or destroyed by the school district. The court denied the teacher’s request for attorney’s fees (among other requests) because she knew about the missing forms for over a year before filing her motion.

Employers can face a variety of sanctions, including case-dispositive sanctions, for failing to preserve evidence. Employers must take reasonable steps to preserve relevant evidence once they are on notice of a potential claim, including after receiving notice of an EEOC charge. This may involve preserving a broad range of potentially relevant documents, including, but not limited to, employee disciplinary records.

Please contact a Jackson Lewis attorney with any questions.

Is One Enough? Employee Asks U.S. Supreme Court if Single Utterance of Racial Slur Creates Hostile Work Environment

Is a single utterance of an offensive racial slur – specifically the “N-word” – enough to create a hostile work environment under Title VII of the Civil Rights Act of 1964?

A Black operating room aide in Dallas, Texas, has petitioned the U.S. Supreme Court to decide the question. The petition references a circuit-split on the issue as grounds for considering the case.  The underlying case is Robert Collier v. Dallas Cnty. Hosp. Dist., No. 19-10761 (5th Cir. Apr. 9, 2020), petition for cert. filed  (U.S. Jan. 15, 2021) (No. 20-1004).

Robert Collier sued his hospital employer in district court, claiming he was subjected to a hostile work environment, and was fired in retaliation when he complained about it.  Collier’s evidence of hostile work environment, included: (1) the N-word had been scratched into the work elevator wall and remained there for months despite Collier’s complaints to human resources; (2) swastikas were drawn on a wall in the hospital and were not painted over for months; and (3) a nurse called him “boy” (which Collier alleged was a common occurrence at the hospital).  The hospital moved for summary judgment, arguing that Collier was fired for insubordination, not for complaining about graffiti or comments.  The district court granted the motion.

On appeal before the U.S. Court of Appeals for the Fifth Circuit, Collier argued that summary judgment was inappropriate because several courts hold that a single utterance of the N-word can establish a claim of hostile work environment, and that racist graffiti at work may be even more offensive than a single utterance of a racial slur.

The Fifth Circuit affirmed the district court’s ruling, finding that Collier failed to establish that the complained of incidents unreasonably interfered with his work or caused him to feel physically threatened.  The Fifth Circuit also noted that, in previous rulings, it found “the oral utterance of the N-word and other racially derogatory terms, even in the presence of the plaintiff, may be insufficient to establish a hostile work environment.”

In his petition for certiorari, Collier asks the Court to decide:

(1) Whether an employee’s exposure to the N-word in the workplace is severe enough to send his Title VII hostile-work-environment claim to a trier of fact; and

(2) Whether and in what circumstances racial epithets in the workplace are “extremely serious” incidents sufficient to create a hostile work environment under Title VII, rather than nonactionable “mere utterances.”

In support of his petition, Collier notes that: (1) in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), the Court held that one “extremely serious” incident could be sufficient to create a hostile work environment; (2) the U.S. Courts of Appeals for the Third and Fourth Circuits have ruled that one use of the N-word (or a similarly offensive slur) is enough to defeat summary judgment (although the Fifth, Sixth, Seventh, Eighth, and Tenth Circuits have ruled that a single “utterance” is not enough); and (3) in 2013, Justice Brett Kavanaugh, who was then serving on the U.S. Court of Appeals for the D.C. Circuit, wrote that the N-word “sums up … all the bitter years of insult and struggle in America, [is] pure anathema to African-Americans, and [is] probably the most offensive word in English.” Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 580 (D.C. Cir. 2013) (Kavanaugh, J., concurring) (citations omitted).

Jackson Lewis attorneys are monitoring this petition and will report on further developments. In the meantime, if you have questions regarding these issues, do not hesitate to contact a Jackson Lewis attorney.

Court Excludes EEOC Determination Letter That Contained Factual Inaccuracies and Conclusions of Law

Courts regularly act as gatekeepers in determining what evidence juries are entitled to hear at trial.  In Nuccio v. Shell Pipeline Co., LP, a federal district court barred an Equal Employment Opportunity Commission (EEOC) determination letter because its probative value was outweighed by its prejudice. No. 19-446-WBV-DPC (E.D. La. Dec. 11, 2020).  Nuccio highlights an important mechanism for challenging the admissibility of agency determinations that contain inaccurate facts and disputed conclusions of law.

In 1996, Shell Pipeline hired plaintiff Joseph Nuccio as a maintenance technician.  Nuccio is blind in his left eye and contends that Shell knew this in 1996 because he took an eye exam as part of the hiring process.  In 2013, Nuccio was involved in an accident while driving a company vehicle.  Following the accident, Shell asked Nuccio to undergo an eye exam from Shell’s doctor and he was subsequently disallowed from driving company vehicles.  In 2015, Nuccio was reassigned from maintenance technician to refinery worker.  Nuccio filed a charge of discrimination with the EEOC, claiming his reassignment was a demotion motivated by his visual disability, in violation of the Americans with Disabilities Act (ADA).  The EEOC issued a determination letter stating there was “reasonable cause” to believe Shell violated the ADA by “demoting” Nuccio.  Shell objected to these findings.

When the case moved to federal court, Shell filed a motion in limine to exclude the EEOC’s determination letter as unduly prejudicial under Federal Rule of Evidence (FRE) 403.  Shell argued the letter contained numerous factual and legal errors, including, but not limited to: (1) stating that the 2013 accident was Nuccio’s first accident, when it was actually his third; (2) stating that nobody had been injured in the accident; (3) declaring Nuccio’s medical examination was “illegal” and unjustified, and his reassignment was an “unlawful[]” demotion “because of his disability.”  Opposing the motion, Nuccio argued that, under FRE 803(8)(A)(iii), the EEOC’s determination letter was admissible under the public records exception to the hearsay rule, absent a showing of untrustworthiness.  He cited numerous Fifth Circuit appellate court decisions admitting EEOC letters of determination or reasonable cause – but not letters of violation – on the grounds that “a letter of reasonable cause is more tentative in its conclusions whereas a letter of violation states the categorical legal conclusion that a violation has taken place.”

The court granted Shell’s motion and excluded the EEOC determination letter from evidence at trial.  It noted that a governmental agency’s determination is presumed admissible under the public records exception to the hearsay rule, but held that any probative value of the EEOC’s determination letter in this case was outweighed by its prejudicial effect under FRE 403.  In particular, the EEOC’s references to an illegal medical examination and unlawful demotion were legal conclusions more akin to a ruling of law or letter of violation than an investigatory report with findings of fact and could confuse or prejudice a jury against Shell.

By focusing on  the EEOC’s characterization of facts and law – and not the official title of the letter or report in question – the court made clear that: (1) FRE 803(8)(A)(iii)’s hearsay exception does not automatically eclipse FRE 403; and (2) courts can serve as important and active gatekeepers and exclude evidence when its probative value is substantially outweighed by unfair prejudice, jury confusion, or other factors under the federal rules.

In light of Nuccio, employment litigators should carefully examine written statements by government agencies to determine whether any misstatements of fact or conclusions of law provide a basis for excluding potentially harmful evidence.

Please contact a Jackson Lewis attorney with any questions.

EEOC FY 2020 Annual Performance Report: Recoveries Up, But Fewer Lawsuits Filed

The Equal Employment Opportunity Commission’s (EEOC) Fiscal Year (FY) 2020 Annual Performance Report (APR) shows a substantial decrease in the number of lawsuits filed by the agency. However, the APR shows a dramatic increase in the amount of monetary recoveries by the EEOC in litigation compared to FY 2019.

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