Photo: Uber.com/media
Photo: Uber.com/media

On June 13, 2017, Uber released to its employees excerpts of a damning independent investigation report authored by independent investigators Eric Holder and Tammy Albarran, attorneys with the law firm of Covington & Burling LLP.  On February 19, 2017, former Uber engineer Susan Fowler published a blog post detailing allegations of harassment, discrimination and retaliation at the company during her tenure.  She also decried the ineffectiveness of Uber’s policies and procedures in addressing such workplace issues.  The very next day Uber hired Former Attorney General Holder and his law firm to conduct a review of  the issues raised by Fowler as well as diversity and inclusion more broadly at Uber. Continue Reading Holder’s Advice to Uber: Focus on Tone at the Top, Trust, Transformation and Accountability

Earlier this week, the New Hampshire Supreme Court issued an opinion holding that the New Hampshire Law Against Discrimination, RSA Chapter 354-A, can impose liability upon individual employees for aiding and abetting discrimination in the workplace, and for retaliation against another employee in the workplace of a qualifying employer.

The issue came before the New Hampshire Supreme Court in the form of a certified question from the United States District Court for the District of New Hampshire, in connection with a case pending in that court.  In the underlying case, a female employee brought suit against her employer for sexual harassment and retaliation under federal law (Title VII) and state law (RSA chapter 354-A).  The plaintiff also sued an individual employee under state law.  (Under current First Circuit precedent, there is no individual liability under the federal Title VII law.)  Because the New Hampshire Supreme Court has never specifically addressed the question of whether individuals can be held liable under Chapter 354-A, the Federal Court asked for clarification on the issue.

The New Hampshire Law Against Discrimination identifies certain acts which, when committed by an “employer,” constitute unlawful discriminatory practices.  The New Hampshire Supreme Court pointed out that the law also provides that “any act of aiding, abetting, inciting, compelling or coercing another to commit an unlawful discriminatory practice, or attempting to do so, or obstructing or preventing any person from complying with the [law] is itself an unlawful discriminatory practice.”  The Court noted that the law allows an aggrieved person to purse a claim against a “person, employer, labor organization, employment agency or public accommodation alleged to have committed the unlawful discriminatory practice.”  Since “person” is defined in the law as “one or more individuals, partnerships,  associations, corporations, legal representatives, mutual companies, joint-stock companies, trusts, trustees in bankruptcy, receivers, and the state and all political subdivisions, boards, and commissions thereof,” the Court concluded that individuals can be liable under the New Hampshire Law Against Discrimination.

The New Hampshire Law Against Discrimination only applies to employers with six or more employees.  The Court addressed the issue of whether an individual employee of an employer with fewer than six employees could be individually liable.  The Court held that one can only be found liable for aiding and abetting discriminatory conduct that is illegal under the New Hampshire Law Against Discrimination.  Therefore, if the conduct of a smaller employer is not actionable because the employer is exempt from the law due to its size, there can be no liability for aiding and abetting.

The Court came to a similar conclusion with regard to individual liability for retaliation under the New Hampshire Law Against Discrimination.  The Court held that the statute’s language makes clear that “as is relevant in the employment context … any ‘person’ may be held liable for retaliation without regard to whether that person is also an ‘employer.’”  As it did with the question of aiding and abetting, the Court found that “it would be illogical to hold individual employees liable for retaliation when they are employed by an employer that is exempt from liability” due to the size of the employer, and accordingly, the Court held that only individual employees of qualifying employers (i.e., employers with six or more employees) could be held liable for retaliation.

This week’s holding brings New Hampshire law in line with existing law in the neighboring Bay State on the issue of individual liability.  Under the Massachusetts anti-discrimination statute (G.L. Chapter 151B) “any person, whether an employer or an employee or not,” may be held liable for aiding, abetting, inciting, compelling or coercing the doing of any of the acts forbidden under the law.

The case is U.S. Equal Employment Opportunity Commission, et al. v. Fred Fuller Oil Company, et al., Case No. 2015-0258 (Feb. 23, 2016).  A copy of the opinion can be downloaded at the Court’s website.

Photo: dbking via Flickr (CC by 2.0)
Photo: dbking via Flickr (CC by 2.0)

As has been the case since 2009, the Equal Employment Opportunity Commission again reported that retaliation remained the most frequently filed discrimination charge in fiscal year 2015.  With the continued upward trend of these claims, the EEOC has issued new proposed guidance which broadly interprets provisions of this protective legislation. The last guidance it issued on retaliation was in 1998.

The purpose of the guidance is to inform the public about how the EEOC may guide its personnel in processing and investigating discrimination charges filed by employees and in considering what litigation it may bring for enforcement.  Essentially, it is used as a reference by EEOC staff in making decisions on claims.  The proposed guidance can be found at http://www.eeoc.gov/eeoc/newsroom/release/1-21-16a.cfm.

An employee bringing a retaliation claim must prove:  (1) the employee engaged in a statutorily-protected activity; (2) the employee suffered an adverse employment action; and (3) the protected activity and the adverse employment action were causally connected.  The new guidance takes an aggressive position on what is within the scope of protected activity in the workplace.  For example, the EEOC interprets “participation activity” to include an internal complaint made with an employer whereas courts generally require some connection to an actual administrative complaint or the litigation process.  This difference in scope from the EEOC can have significant consequences for employers.

While EEOC guidance is not controlling, it can be persuasive to a court.  As the US Supreme Court explained in Young v. United Parcel Service, Inc. issued in March 2015, the weight placed on guidance should be based upon “the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors that give it power to persuade, if lacking power to control.”

Companies have 30 days to review and comment on the draft guidance, which ends on February 24, 2016.  Input may be submitted at www.regulations.gov in letter, email, or memoranda format. Alternatively, hard copies may be mailed to Public Input, EEOC, Executive Officer, 131 M Street, N.E., Washington, D.C. 20507.  The EEOC will review all comments and consider revisions to the draft guidance.

Photo Credit: Chris Potter via Flickr (CC by 2.0)

Governor Maggie Hassan recently signed two bills into law that may have significant impacts on New Hampshire businesses.  The first, HB 1188 , which takes effect on January 1, 2015, prohibits employers from discharging, disciplining, or otherwise discriminating against an employee because he or she disclosed the amount of his or her wages, salaries, or paid benefits.

House Bill 1188 was proposed as a companion law to SB 207, known as the “Paycheck Fairness Act,” and the passing of HB 1188 was dependent on the passing of SB 207.  Because the Governor signed SB 207 a week prior to signing HB1188, both bills became law.

The second bill, The Paycheck Fairness Act , prevents employers from discriminating between employees on the basis of sex by paying employees of one sex at a rate less than the rate paid to employees of the other sex for what the statute refers to as “equal work.”  Such work requires “equal skill, effort, and responsibility and is performed under similar working conditions” by both the employees of one sex and employees of the other sex.  The statute allows employers to pay employees of one sex at a lower rate than employees of a different sex if the decision is made pursuant to a seniority system, a merit or performance-based system, a system which measures earnings by quantity or quality of protection, based on the employee’s expertise, differentials in the employees’’ shifts, or factors such as education, training, or experience.  These exceptions give employers the necessary flexibility to make legitimate and reasonable pay decisions without having to look over their shoulders for discrimination claims.

Employers should review their anti-discrimination and retaliation policies and revise them accordingly to reflect this new form of discrimination.  Employers and human resources managers should also train their supervisory staff on how to implement the Paycheck Fairness Act and identify what jobs are considered “equal work.”  In addition, employers should review their pay scales and salary schedules to ensure that pay differentials and considerations for raises and bonuses are based on merit-based, seniority, or other acceptable systems as recognized in the statute.  Finally, with respect to the law on disciplining employees for disclosing the amount of their wages, employers should use caution when citing “insubordination” as a reason for terminating or disciplining their employees.  Specifically, if an employee complains about their pay, and in the course of verbalizing that complaint, discloses the amount of his or her wages, employers could face liability if that complaint was cited as the reason for the employee’s termination.

The New Hampshire Commission for Human Rights has released data on discrimination charges filed by employees in 2013.  Last year, the Commission received 222 discrimination charges against employers.  This number was slightly down from the year before at 257.  Retaliation across all categories topped the list at 93 claims.  Following closly behind with 89 charges was disability discrimination.  There were 64 claims based on sex discrimination and 31 claims based on age.  Of the sex discrimination claims, the charges included 17 gender, 36 harassment, and 11 pregnancy.

The Commission found probable cause to proceed with a hearing in 3 cases — 2 for disability discrimination and 1 for sex (pregnancy) discrimination.   No probable cause was found in 37 of the cases.  Additionally, 13 cases were removed to federal court; 34 were removed by the complainant to state court and 2 were removed by the respondent to state court.  The Commission closed 199 cases in 2013.

With the report of these statistics, it is a good time for employers to review, redistribute, and reinforce their anti-harassment and non-discrimination policies to all employees.  Employers should confirm their handbooks cover all protected categories under federal and state laws.  Companies should also provide training for employees on their nondiscrimination and anti-harassment policies.  Supervisors and managers need to be trained on the policies as well as receive an overview of the laws relevant to the workplace.  All of these steps can help companies safeguard against liability for harassment and discrimination in the workplace.

Even when an employer takes prompt remedial action to defeat a sexual harassment claim, it may still be liable for retaliation.  A NH employer was reminded of this recently in Rand v. Town of Exeter (11-CV-55-PB) (10/2/13).

Brenda Rand worked as a solid waste transfer operator for the Town’s Highway Department.  Rand alleged that a coworker sexually assaulted her one morning at the transfer station when both were alone.  Rand confided in a coworker 5 days after the incident and then reported it to the HR Director and her supervisors.

To prove sexual harassment by a coworker, an employee must show that the employer knew or should have known of the harassment yet failed to take prompt remedial action.

On a motion for summary judgment filed by the employer, the federal trial court found that the Town had taken prompt and remedial action when it learned of Rand’s complaint.  As the Court explained, the company HR Director conducted an investigation into the allegations, prohibited the alleged harasser from going to Rand’s worksite during the investigation, and had interviewed 3 of the witnesses within 3 days of learning of the complaint and had a report prepared 5 days after the final interview.  The Town informed Rand of the investigation outcome two weeks later.

The Court noted that while Rand disagreed with the Town’s internal investigation outcome, the issue as to employer liability is whether the employer is negligent in allowing the harassment to occur and whether the employer took reasonable steps to respond.  Here, the Town had an anti-discrimination policy, no reason to anticipate the alleged assault, and took prompt and effective action to respond to and investigate Rand’s complaint.  As a result of the steps taken by the employer, the federal Title VII and state harassment claims were dismissed.

As this case shows, anti-discrimination policies and effective internal investigations play important roles in protecting companies from workplace liability.  Taking complaints seriously, dealing with them objectively and promptly, and taking appropriate remedial measures, if necessary, following the investigation may shield employers from claims.

Unfortunately for this employer, the case is not done.  While the harassment claims were dismissed, the Court allowed Rand’s retaliation claims to continue.   Rand had produced sufficient evidence to support her complaint, including negative performance reviews and reprimands after her complaint and evidence employees were told to avoid her.  Additionally, the Town placed Rand on administrative leave and refused to turn over her personnel file shortly after Rand filed an EEOC complaint.  As the Court explained, motive and intent are better suited for the jury, and a trial has been scheduled for February 2014.

With retaliation at the top of the list of discrimination filings, employers must take heed.  An employee may lose on the underlying discrimination claim and still be successful on the retaliation claim for conduct occurring after the complaint. Employers should have strong policies against retaliation and should train all supervisors and employees on this prohibited conduct.  Do not learn this lesson the hard way.

 

On the heels of narrowing the definition of “supervisor” for purposes of liability under Title VII of the Civil Rights Act of 1964, a divided U.S. Supreme Court dealt a second major blow to employees this week by making it harder for them to prove retaliation claims under that same statute.

University of Texas Southwestern Medical Center v. Nassar dealt with the issue of defining the proper standard of causation for claims of retaliation under Title VII. Like basic tort claims, “causation” is a required element of successfully proving a case of discrimination or retaliation under Title VII:  the employee’s injury must be caused by the employer’s discriminatory animus or a desire to retaliate.

In this case, there were two options at the Court’s disposal: (i) the easier-to-satisfy “motivating factor” test; or (ii) the more-difficult-to-satisfy “but-for” standard. Under the motivating factor test, an employee could prove retaliation by showing that their decision to report or notify the employer of possible discrimination was a motivating factor in the employer’s decision to terminate them or take some other adverse employment action. On the other hand, under the but-for causation standard, the employee would have to prove that they would have retained their job or avoided some other adverse employment action in the absence of the employer’s retaliatory intent.

The plaintiff in Nassar – a physician of Middle Eastern descent at the University of Texas Southwestern Medical Center – had relied on the motivating factor test in prevailing against the hospital at the trial court level, and argued for its application before the Supreme Court. The U.S. Government also urged the Court to adopt the motivating factor test as the proper causation standard.  Unfortunately for this plaintiff, and employees bringing retaliation claims in the future, a narrow majority of the Court disagreed and found that the stricter but-for test applied.

In finding that but-for was the proper causation standard, the Court relied upon both the text of Title VII and the structure of how the statute is written.  The Court emphasized that Congress was deliberate in placing the “motivating factor” standard in the section of the statute that deals with discrimination – separate from the section that addresses retaliation.  Had Congress intended to apply the motivating factor standard to retaliation claims, it could have and would have written the statute that way, as it has in other discrimination statutes.  The Court also elected to disregard the Equal Employment Opportunity Commission’s interpretation and guidance on the proper standard.

The result of Nassar is that employees must prove claims of Title VII discrimination and retaliation under two different causation standards, the new standard for retaliation being much more difficult to satisfy.  Heightening the causation standard for retaliation claims may also curb the increasing influx of retaliation lawsuits filed in recent years, which the majority recognized as a problem that was impacting the “fair and responsible allocation of resources in the judicial and litigation systems.”  For employers, the decision is a major victory.  From a litigation perspective, it will significantly limit an employee’s ability to successfully prove that they were retaliated against.  From a practical standpoint, if an employee complains about workplace harassment or discrimination, and is later terminated for legitimate reasons unrelated to his or her complaint, employers can find some comfort in the fact that this termination is now more likely to hold up in court against a retaliation suit.  Clearly, employers should still remain cautious when making employment decisions about employees that have arguably blown the whistle about their working conditions, but this decision gives employer’s more flexibility.  Moreover, employers must still be diligent in documenting and communicating legitimate personnel issues to employees, so those employees will understand why certain adverse action is taken against them.