Today the US Supreme Court, through Justice Scalia, ruled on a retaliation and Title VII case, Thompson v. North American Stainless, LP.  The facts were simple.

Thompson and his fiance, Miriam Regalado, worked for NAS.  Regalado filed a charge of discrimination with the EEOC, and three weeks later NAS fired Thompson.  Thompson then sued NAS under Title VII, claiming that he was fired in retaliation for Regalado's filing of her complaint.

The trial court threw out Thompson's case, and the Sixth Circuit Court of Appeals affirmed on the theory that Title VII did not apply to Thompson since he engaged in no protected activity.  In essence, the lower courts held that a retaliation claim is not available to someone who suffers an adverse employment action because of protected activity engaged in by someone else.

The Supreme Court made short work of that argument, holding that "Title VII's antiretaliation provision must be construed to cover a broad range of employer conduct."  The Court  acknowledged that lines will have to be drawn in future cases, but that Thompson's status as Regalado's fiance was close enough to raise an inference that NAS acted against him because Regalado had complained about NAS.  The rule has limits, according to the Court.  Retaliation against a fiance triggers liability, while retaliation for action taken by a mere acquaintance of the plaintiff would not.  And there's a lot of gray area in between.  But the Court chose to remain flexible (hence the title!) and let the trial courts decide the issue on the facts of each case. 

While employers will not be happy with this decision, it is a sensible and straightforward case of statutory construction --- the Court doing what a court is supposed to do.  Employers should be able to deal with the ramifications of Thompson v. NAS with reasonable predictability if they make their personnel decisions in a similarly sensible way.

Melanie McClure brings us another real world example in her Arkansas Employment Law blog. 

A bank had a young female teller.  She had documented performance problems.  While employed, she became pregnant, and suffered some physical symptoms, which the bank accommodated.

Nonetheless, her performance problems continued, and her supervisor sent an e-mail to HR asking that the "pregnant girl teller" be fired.  Not smart.  To a plaintiff's lawyer that kind of statement is like manna falling from heaven.

This case had a happy ending for the bank.  The discharge of the "young girl teller" was found to be performance-based and non-discriminatory.  But getting to that point doubtless cost a lot in both time and money.

Melanie McClure suggests that "avoiding litigation is more important than winning litigation."  That statement is a little broad for my taste, but her main point is well taken. There is a real virtue in avoiding litigation when it's avoidable.  Here it probably was avoidable.  If that e-mail had been phrased differently, there's a good chance that the litigation never would have happened.  Perhaps something like this: "Please terminate Jane Doe due to her performance problems."  But referring to her as "the pregnant girl teller" was just asking for trouble.

Most employment lawyers have stories like this, which suggests that we need to continue to educate our clients about the dangers of the too-casual use of e-mail.

A Rastafarian who wears dreadlocks, Xodus applied for a job as a security guard with Wackenhut Corporation.  At his interview Xodus was told that Wackenhut has a grooming policy that would require him to cut his hair.  Xodus responded that cutting his hair was against his "belief," without specifying that the belief was religiously based.  As a result, he was not hired.

At trial the court found the person who conducted the interview for Wackenhut was not told that Xodus claimed a religious basis for his refusal to lose his dreadlocks.  Neither did the circumstances compel the conclusion that the interviewer should have known of the religious consideration.

In affirming the judgment of the trial court, the 7th Circuit Court of Appeals noted that "unlike race or sex, a person's religious belief is not always readily apparent."  Thus, Xodus had an obligation to bring his religious belief to Wackenhut's attention, and his failure to do so was fatal to his claim of religious discrimination.

So "belief" does not necessarily mean "religious belief."  If Xodus had used the adjective "religious" to modify "belief," the case probably would have had a different outcome.  As noted above, words have meanings, and we need to be mindful of that in our business dealings.

In Kirleis v. Dickey, McCamey & Chilcote, P.C., the plaintiff Alyson Kirleis sued the defendant law firm, of which she was a partner, for gender discrimination, claiming that she was paid less than her male counterparts.  She sued under Title VII, the Equal Pay Act, and a Pennsylvania discrimination statute.  The issue was whether Kirleis, as a partner in a professional services firm, was an "employee " of the firm, a status that would allow her to sue, or an "employer," which would not.  The trial court found that Kirleis was an employer and thus found in favor of the law firm.  

Kirleis appealed to the U.S. Court of Appeals for the Third Circuit.  She fared no better there.  In a four page (that's really short, kids), non-precedential opinion, the court affirmed the judgment of the trial court. The court reviewed the six factors laid out by the Supreme Court in Clackamas v. Wells, and found that Kirleis in fact was a partner in more than name only, and thus was an employer.

The Kirleis decision has implications for all professional services firms, not just law firms.  An important lesson to take from this case is that, in order to avoid discrimination claims between partners, care must be taken in setting up a corporate governance structure.  Properly done, problems can be avoided.  Do it improperly, though, and there can be big problems that could have  significant financial ramifications for the organization.

A claim of sexual harassment is the basis for a $7.3 million trial verdict in Redman v. Bernstein, Shur, recently tried in the Superior Court of Maine.  We say "basis  of" the verdict because the case was a claim for legal malpractice, not a direct claim for sexual harassment. 

The facts are contained in this opinion disposing of the parties' cross-motions for summary judgment.  In short, there was a battle between brothers for control of a family-owned business.  One brother learned that there was a plot afoot to make him look bad, and a short time later he was accused by a female employee of sexual harassment. The Bernstein Shur firm was consulted on the matter.  The jury found that they were negligent in how they handled the harassment claim and awarded $7.3 million against them, ALL of it for emotional distress.

An extreme case with an eye-popping result?  Yes, but it serves to emphasize how carefully employers and their attorneys must treat claims of sexual harassment.

If you were to give plaintiff attorneys a chocie between filing a complaint for discrimination or for retaliation, my guess is that they would usually choose retaliation.  I'm open to discussion on that point.  The important thing, however, is that when an employee complains of unlawful discrimination, even when the complaint is baseless, it needs to be investigated properly.  And future HR decisions about the employee need to be made with the prior employment history in mind to maximize the chances that a retaliation complaint will not be filed in court in the future.

The short story: Terri Patraw, a soccer coach at the University of Nevada-Reno, was fired.  She sued, claiming that her termination was in retaliation for her reporting of possible Title IX and NCAA rule violations, and sexual harassment.  The university defended on the basis that Patraw was (a) an employee at will and thus subject to termination at any time, and (b) was a source of continuing turmoil in the athletic department.

Shortly before a scheduled trial the court granted the university's motion to dismiss the complaint.  This came after 4 days of oral argument.  Four days!!!!  When was the last time that you heard of four days of oral argument on anything, maybe short of a dispositive motion in a class action antitrust case?  But I digress.

After a thorough airing of the issues the court granted the defense motion and the case came to a screeching halt.  Now the university is threatening to seek from its former coach reimbursement of a half million dollars in legal fees.  I plead ignorance on the specifics of Nevada law, but in most places such a motion would go down in flames in short order.  Let's hope that it doesn't take four days of argument to get a decision.

Local reports from the Newark Star-Ledger bring news of the criminal conviction of a former Immaculata High School girls basketball coach as a result of having what apparently was a "consensual" sexual relationship with a player.  Patricia Balogh was convicted on four of five counts, although she avoided the most serious, which charged aggravated first degree sexual assault.  A conviction on that charge could have landed her in prison for 40 years.  As it is, she's looking at 10.  There's no word whether the victim's family plans to pursue an action for civil relief against the coach or the school.

Educational employers must be vigilant.  Inappropriate relationships between players and coaches are not common, but neither are they rare.  When they occur they have the potential to cause significant liabilities and, just as important, reputational damage. 

The 3rd Circuit majority found that LJCC was an exempt religious organization, which required the dismissal of the plaintiff's complaint.  Judge Rendell, however, filed a cogent dissent concluding that the majority completely misread the intent of Congress.  Her analysis of the structure and funding mechanism of the LJCC suggests that it is not a "religious organization" within the meaning of the statute.  If she is right --- and at first glance it seems that there's a good chance she is --- this case may find its way to next year's Supreme Court docket.

For now, the practical effect of the Leboon case is a warning that religious organizations and their affiliates should seek counsel before hiring or firing employees of other faiths.

Curiously, according to the report the veto-averse White House has threatened to veto this bill if it is passed by the Senate.  The government has no direct stake in the litigation, and the bill would merely restore the status quo.  What is it about this situation that would cause the White House to threaten the ultimate sanction of a veto?

According to the EEOC, about 10% of the race discrimination complaints that it receives are from whites.  It is unusual, however, for a white plaintiff to succeed in such a claim.

Here's the SCOTUS opinion.

Long story made short, the plaintiff sued her employer for alleged sexual discrimination under Title VII.  Her main argument was that over time she was paid significantly less than similarly situated male workers.  Goodyear made pay decisions based upon performance evaluations. Ledbetter claimed that she received unfavorable evaluations because of her gender, that she was therefore paid less than the men, and that these decisions carried forward through the years so that, by the time she retired, she was significantly underpaid.  The trial court jury agreed and awarded her damages.  The 11th Circuit Court of Appeals reversed.

In a rather technical interpretation of Title VII, the Supreme Court agreed that she was not entitled to recover.  It held that she had not met the requirement of the law that she file a timely claim with the EEOC for each discrete act of discrimination. 

The practical import of the decision for employees: file your claims of intentional discrimination on time or be forever barred from pursuing them.  That, according to the majority, is what Congress intended. 

The four dissenting justices thought that pay cases are different from other kinds of Title VII cases (such as failure to hire) and deserve different and more flexible treatment.

Under federal law the issue is now decided: pay-based claims of discrimination under Title VII must comply strictly with Title VII's filing requirements.  But does this tell the whole story for NJ employers and employees?  Probably not.  The New Jersey Law Against Discrimination contains the same prohibition against gender-based discrimination as does Title VII, but has no requirement that claims first be filed with an administrative agency.  Therefore, the logic of Ledbetter v. Goodyear should not bar such claims under NJ state law.  Looked at differently, if Ms. Ledbetter had filed the same complaint in New Jersey and pursued it in the same way, she probably would have won.

Thus, NJ employers cannot take too much comfort from the Ledbetter decision.  NJ employees likely still have an option open.

Now, in Cutler v. Dorn,  the Appellate Division has held that referring to a co-worker as "a dirty Jew" does not rise to the same level of severity as the "jungle bunny" comment, and does not necessarily give rise to a claim under the LAD.  The court's opinion, however, makes clear that the context in which the comment was made was critical to its decision.

The Haddonfield Police Department is relatively small and had been populated by an "in-group" of officers and some supervisors who delighted in playing pranks, teasing, ribbing and "breaking each others chops." Plaintiff participated to at least some extent. Humor files, containing offensive material, were well known and made available for perusal for those who wished to indulge, including plaintiff.

Against this backdrop, Shreve, a co-worker whom plaintiff did not particularly like, made the "dirty Jews" comment in plaintiff's presence. While the comment was undoubtedly disturbing, it was isolated, not specifically directed at plaintiff, and not made by a supervisor.

The plaintiff received a scheduled promotion and did not otherwise suffer any adverse employment action.

In considering all of the circumstances, the court held that "the comments and pranks were sporadic and not sufficiently severe or pervasive to create a hostile work environment under the LAD."  In fact, even though the jury had found for the plaintiff at trial, the court held that the trial judge should have granted defendants' motion to dismiss the complaint.

Employers should be wary about this holding.  It certainly does not give carte blanche permission to use derogatory language in the workplace.  All complaints received from employees about offensive conduct should continue to be taken seriously and investigated promptly.  The Cutler opinion notwithstanding, doing anything less is playing with fire.

After 19 years at a Goodyear Tire & Rubber Co. plant in Gadsden, Ala., Lilly Ledbetter was making $6,000 a year less than the lowest-paid man in the same job.

She filed a pay discrimination lawsuit in 1999, arguing the disparity existed for years and was primarily a result of her gender. A federal jury agreed and awarded Ledbetter more than $3.8 million. A judge reduced the award to $360,000.

Goodyear appealed and the 11th Circuit Court of Appeals reversed the trial court's award, holding that her time to complain had passed long ago.

Ledbetter then appealed to the Supreme Court.  She contends that each new paycheck that she receives continues the discrimination that started when she was first employed and is a new violation of her civil rights.

This is a case that contains both a serious legal issue and significant practical ramifications for business if Ledbetter wins.  It bears careful watching, and watch it we will.  A decision is expected in the summer. 

The suit claims that the practice violates the Age Discrimination in Employment Act of 1967, Title VII of the Civil Rights Act of 1964 and the Equal Pay Act.

The case could be important since many --- perhaps most --- separation agreements contain similar language.

The question that was decided by the court was one that had separated the federal courts of appeals into three camps: what a plaintiff must prove to establish that she was the victim of unlawful retaliation in violation of Title VII of the Civil Rights Act of 1964. The specific issues were whether Burlington's actions in (1) changing White's job function and (2) suspending her without pay for 37 days, constituted an unlawful retaliation. The trial court jury held for White and awarded her damages. The Court of Appeals for the Sixth Circuit reversed and found for Burlington Northern.

The Supreme Court sided with the jury.

The Court considered the difference between a substantive claim of discrimination and a related claim of retaliation.

The anti-retaliation provision seeks to secure that primary objective by preventing an employer from interfering (through retaliation) with an employee's efforts to secure or advance enforcement of the Act's basic guarantees. The substantive provision seeks to prevent injury to individuals based on who they are, i.e., their status. The anti-retaliation provision seeks to prevent harm to individuals based on what they do, i.e., their conduct.

But one cannot secure the second objective by focusing only upon employer actions and harm that concern employment and the workplace. Were all such actions and harms eliminated, the anti-retaliation provision's objective would not be achieved. An employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace.

Thus, purpose reinforces what language already indicates, namely, that the anti-retaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment.

The Court took pains to note that the employee who alleges retaliation must suffer an injury or harm. The standard for determining harm is objective (not subjective to the complaining employee):

In our view, a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.

Over time the lower courts will sort out what this standard means in practical application. We'll revisit the retaliation issue over time as the courts put some meat on the bones of this newly clarified standard.

The plaintiff Maelynn Tenge started with the defendant Phillips Modern Ag Co., as a clerical employee. Over the years she worked her way up to a position of responsibility and became a key employee. Scott Phillips was the President of the company, and his wife Lori Phillips worked there, too.

There was no evidence that Tenge and Scott Phillips were having an affair. However, there was plenty of evidence of mutual attraction, including consensual touching. And Tenge admitted to authoring a series of explicit love notes to Scott and leaving them where they could be read by others. When Lori found out, her reaction was predictable. She told Scott to choose between her and the kids on the one hand, or Tenge on the other. Scott chose his family and Tenge was fired.

Tenge sued for gender discrimination in violation of Title VII. Affirming the trial court, the 8th Circuit rejected her contention that she was fired because of her sex. The court held that defendants' decision to fire her

does not amount to discrimination on the basis of the employee's status as a man or a woman; rather, it is based on the employee's own actions and therefore is permissible under Title VII. The ultimate basis for Tenge's dismissal was not her sex, it was Scott's desire to allay his wife's concerns over Tenge's admitted sexual behavior with him.

The court was careful to distinguish this case from quid pro quo sexual harassment, where the supervisor's conduct is not welcomed, and from situations where there is demonstrated widespread favoritism for one gender or the other.

Unfortunately, Cottrill and Combs had to sue in federal court in Missouri. It's unlikely that they would have fared so poorly if they had sued in New Jersey, but their story is instructive nonetheless.

The case is Cottrill v. MFA, Inc. It was decided by the United States Court of Appeals for the 8th Circuit on April 7, 2006. Over a blunt and well-reasoned dissent, the court upheld the trial court's entry of summary judgment in favor of the defendant employer.

Jill Cottrill was employed by MFA as a bookkeeper and Mary Combs as a part-time bookkeeper. They were supervised by Scott Adkins, the manager of MFA's retail facility in Albany, Missouri. The facility had one women's restroom, which adjoined a room that Adkins used as his personal "breakroom." Adkins remodeled the restroom in 1997 and added some non-standard equipment to enable him to view Cottrill while she used the restroom: a two-way mirror and a peephole that went through restroom wall into his breakroom. On the breakroom side Adkins hid the peephole with a bookself and paneling.

When Adkins saw Cottrill go to the restroom, he would retire to the breakroom to spy on her. This happened about two to three times per day over a period of four years, from 1997 to 2001. Adkins's deceptions worked: Cottrill never realized that she was being observed.

From about 2000 to 2002 Cottrill also noticed a sticky substance on the toilet seat a number of times. She suffered rashes on her legs, buttocks, ankles, chest and arms. Initially baffled by what was causing the rashes, she came to believe that they were caused by the sticky substance.

MFA's managers thought that they could not fire Adkins if they did not catch him in the act, so they decided to set up a trap with a hidden camera to record at the peephole and use Cottrill as bait. In fairness, they involved Cottrill in the plan and told her that she could wear a long shirt to maintain some level of modesty while Adkins would be observing her in the restroom. The trap was sprung on October 21, and the hidden camera recorded Adkins observing Cottrill in the restroom four times that day. Adkins was fired and the wall was rebuilt to remove the observation devices.

A short time later an MFA manager explored the breakroom and found hidden there a plastic bag containing a stick of clear gelatinous material (later found to be cornstarch), gloves, and a plastic bag containing a deteriorated substance that an expert identified to a 99% certainty as poison ivy leaves.

Cottrill and Combs sued MFA for gender discrimination for maintaining a hostile work environment. Sounds like a pretty simple case, right? According to the courts, wrong.

The trial court dismissed the case on motion, and the appeals court affirmed.

We first consider Cottrill's hostile work environment claim. Cottrill was not aware of the peeping, stating in her depositions that she did not know that Adkins was viewing her. Because she did not subjectively perceive the peeping, Cottrill may not rely on the peeping to establish that her work environment was hostile.

That's a curious conclusion, but the court outdid itself by finding that

the contamination of the toilet seat and the actions of MFA [in using Cottrill as bait] during the investigation were not so objectively hostile as to poison Cottrill's work environment.

Cottrill has not established a question of material fact as to whether the alleged harassment was so severe and pervasive as to constitute a hostile work environment . . . in violation of Title VII.

A curious ending to the story, but there's more. Judge Murphy filed a dissenting opinion, and while acknowledging facts in the record that weighed against plaintiffs, explicitly stated that

the majority overlooks evidence in the record from which a fact finder could determine that Jill Cottrill experienced a hostile work environment, including the role she was asked to play in the scenario devised by management to catch Scott Adkins in the act of spying and other acts by managers.

In any event, in this case the dissent got it right.

Bradley Baker was employed by Home Depot. He was a full-time employee who worked 40 hours per week and received full benefits. Through religious instruction that he obtained before getting married, he became more strictly observant of his Baptist faith. He learned that Sunday, the Sabbath, was to be strictly observed as a day of rest. Accordingly, he requested from Home Depot the accommodation that he not be scheduled to work on Sundays. A succession of Home Depot managers and schedulers granted him the accommodation by giving him Sundays off.

Eventually a new manager took over Baker's store, one who was not as sympathetic to Baker's beliefs as her predecessors. She had him scheduled to work on Sundays, but offered him a limited accommodation: he would only be assigned Sunday afternoon shifts so that he could attend church in the morning. Baker explained that his request was based not just on church attendance, but on Biblical mandate: on Sundays, he could not work and be true to his faith.

Neither Baker nor the manager bent; litigation ensued.

In Baker v. Home Depot, decided on April 19, 2006, the United States Court of Appeals for the Second Circuit upheld Baker's right to pursue his claim. It reversed the trial court's entry of summary judgment in favor of Home Depot and allowed the case to go to trial. The Second Circuit held that getting Sundays off based upon a sincere religious belief that work is prohibited on the Sabbath is an accommodation to which Baker may be entitled. It will now be up to a jury to decide whether Baker's stated belief is sincere and religiously grounded, and whether accommodating his belief will be an undue hardship for Home Depot.

We'll keep you posted if we hear anything more on this one.