Last week, the co-founder of a Minnesota based organization called “Gender Justice” accused the Iowa football team of “pink shaming” its opponents and engaging in what she calls “cognitive bias.” Jill Gaulder, who also happens to be a former UI professor, claims the infamous pink visitor’s locker room at Kinnick Stadium is “sexist”, “homophobic”, and may subject the University to legal liability under Title IX of the federal Civil Rights laws.
The pink locker room was the brainchild of legendary former coach Hayden Fry. When he took over the perennially losing program in 1979, Fry was looking for every edge available. He had once read that pink had a calming effect on people, and thought the pink locker room would calm the Hawkeye’s opponents. But, Gaulder claims Coach Fry also believed many people associate pink with girls’ bedrooms, and consider pink to be a “sissy” color. Gaulder contends the pink walls send the message that it’s “bad to be a girl”, because femininity is supposedly associated with weakness.
It’s easy to laugh off Ms. Gaulder’s claims as a publicity stunt. Most people understand the pink locker room is a joke designed to get attention and distract the opposing team. The anti-discrimination laws don’t protect people from being offended by a subliminal message associated with certain colors (assuming there was such a message here, which is debatable). The law provides a remedy only when a person is subject to some concrete adverse action, or is denied a right or benefit because of gender (or other protected characteristic). Who are the victims here? The Michigan football team? Ohio State? Perhaps Minnesota, which has won only 3 games out of 16 played in Iowa City during the pink locker room era.
But, Ms. Gaulder cannot be so easily dismissed to the extent she is trying to advance the proposition that employment decisions should not be based upon stereotypes, whether gender or otherwise. Many courts, including our own Eighth Circuit, have recognized that an employer is liable under Title VII not just for employment decisions based upon gender, but also based upon stereotypes about how an employee of a particular gender should act. To the extent that a person’s language, dress, or color choices impact employment decisions, employers are well advised to proceed with caution so as to avoid decision making based upon sterotypes.
Court Finds FMLA Interference Even Though Employee Was Not Qualified to Return to Former Job Because of Her Medical Condition
FMLA provides a qualifying employee up twelve weeks of job protected leave. That means the employee is entitled to return to the same position held before the leave, or to an “equivalent position” with equivalent pay, benefits, and other terms and conditions. FMLA does not require an employer to restore employment if the employee is unable to perform an essential function of the position because of a physical or mental condition, including the continuation of a serious health condition. But, as the recent case of Dollar v. Smithway Motor Express,Inc. (8th Cir. 3/27/13) demonstrates, and employers should tread with caution when deciding whether to terminate an employee on FMLA leave in these circumstances.
Christine Dollar was on FMLA leave from her job as a driver manager because of depression and anxiety. She went on leave June 10, and was excused from work until July 9. In the middle of the leave, approximately June 13 or 14, Smithway told Dollar she could not return to the driver manager position because of her poor attendance before she went on FMLA leave (much of which was apparently related to the depression). If she returned to Smithway, she was told her new position would be as a driver recruiter. But, on June 21, Smithway told Dollar it needed to fill the driver recruiter position and could not guarantee that position would be available unless she returned to work immediately. Because her psychiatrist recommended she be off work until July 9, Dollar did not return immediately. Smithway terminated Dollar on July 6.
At trial, Smithway’s defense to the FMLA interference claim was that Dollar’s depression made her unqualified to serve as a driver manager (Notably, Dollar agreed she was not qualified to return to the driver manager job). But, she claimed she should have been returned to the driver recruiter position upon returning from leave. Smithway contended it was not required to hold open the driver recruiter position until Dollar returned to work because FMLA imposes no duty to accommodate an employee by holding open an equivalent position.
The Court skirted the issue whether Smithway was required to hold open the driver recruiter position, and instead found Dollar had already been transferred to the recruiter position at the time of her termination. Therefore, she had the right to “return” to that job (even though it was not a job she had actually performed) upon returning from leave.
The Dollar case shows once again that bad facts can allow an employee to prevail even when the law is technically on the employer’s side. Any time an employer is considering termination of an employee while she is on FMLA leave, the case should be thoroughly vetted with counsel in advance.
Iowa Court of Appeals Rules that ADA Amendments Apply to Iowa Civil Rights Act, Even in the Absence of Legislative Action
A divided panel of the Iowa Court of Appeals recently ruled that the rules of construction in the ADA as amended in 2008 apply to the Iowa Civil RIghts Act when determining what constitutes a disability (Knudsen v. Tiger Tots Community Child Care Center, No. 2-1011, 1/9/13). Although Knudsen is a public accommodation and not an employment case, the opinion is nonetheless very significant. It shows at least one appellate panel’s willingness to adopt the ADA Amendments by judicial fiat. The Iowa legislature has not amended the ICRA to adopt the changes Congress made to the ADA in 2008 (effective January 1, 2009).
The plaintiffs in Knudsen are parents of a child with a tree nut allergy. Their child was refused admission to a child care center because the center did not have sufficient staffing levels to deal with the extra care demands of a child with that kind of medical condition. The trial court granted summary judgment to the defendants because the nut allergy was not a “disability” under the ICRA.
The court reversed the summary judgment because the trial judge had not evaluated whether an episodic condition like a tree nut allergy would substantially limit a major life activity when active. Notably, coverage for episodic conditions has existed only since the ADAAA became effective January 1, 2009. But the ICRA has never been amended. In holding that the ADA amendments apply, the court relied upon several pre-2009 cases holding that a federal analytical framework applied to disability cases under the ICRA.
Judge Vogel dissented from the majority’s decision. She argued the only reason the pre-2009 cases relied upon the federal disability framework is because of similarities between the ADA and ICRA that then existed. After the 2009 ADA amendments, however, the federal law was no longer similar in many respects. Judge Vogel concluded that it is not the court’s role to change the definition of disability under the ICRA simply because federal law changed. That is up to the legislature.
Fortunately, this panel’s opinion is not the end of the story. A certified question is presently pending before the Iowa Supreme Court on this very issue. In Stotler v. Delavan, Inc., U.S. District Judge Gritzner asked the Iowa Supreme Court to answer the following question:
In the absence of any applicable amendment to the Iowa Civil Rights Act (ICRA) regarding claims of disability discrimination, will the Iowa courts adopt the structure of the revised federal law enacted by Congress in the 2008 Americans with Disabilities Act Amendment Act (ADAAA), specifically 42 U.S.C. §§ 12101 and 12102, and federal regulations promulgated thereunder, when reviewing disability discrimination claims under the ICRA?
It would be tempting for the Iowa Supreme Court t to simply adopt the ADA Amendments (as the Court of Appeals did in Knudsen). It would certainly make cases easier to litigate, particularly those that assert claims under both federal and state law. Hopefully, the court will resist that temptation. The ADA Amendment substantively changed the nature and extent of that law's coverage. The Iowa legislature has expressed no intention to expand the scope of the ICRA in a similar manner.
Not following the federal ADA in this case would also open the door to re-evaluting whether federal precedent should be followed in other types of discrimination claims under the ICRA.. The courts have for years ignored the real substantive differences between federal and state discrimination laws, and it is time to revisit those decisions.
Critics are Unfairly Attacking the Iowa Supreme Court's Sex Discrimination Ruling in Nelson v. Knight
Never has a Iowa Supreme Court’s ruling in an employment dispute generated such strong reaction, not only locally, but internationally. The case, of course, is Nelson v. Knight, the December 21, 2012 ruling involving the Fort Dodge dentist who was irresistibly attracted to one of his dental assistants. Dr. Knight’s wife, who also worked in his practice, found text messages between the two of them when he left his phone at home. Most of the texting was benign, but the wife was concerned that if Dr. Knight continued to work with this particular assistant it could lead to a romantic relationship. She demanded the assistant be terminated for the sake of the marriage. Dr. Knight agreed.
The dental assistant, Melissa Nelson, sued, alleging her firing was illegal sex discrimination under the Iowa Civil Rights Act. Notably, she did not claim sexual harassment. There was no sexual relationship, no demands for sex, no offensive working environment. There was no claim Dr. Knight favored male employees compared to female employees. So how did Dr. Knight discriminate against her? Ms. Nelson’s theory was that Dr. Knight’s attraction to her was in and of itself a form of unlawful sex discrimination. In other words, if she had been male, Dr. Knight would not have perceived Nelson as a threat to his marriage, and she would not have been fired.
While acknowledging that Nelson’s argument warranted serious consideration, the Iowa Supreme Court ultimately concluded Dr. Knight was not guilty of sex discrimination. The law recognizes a distinction between an isolated employment decision based upon a particular relationship (or potential relationship), and a decision based upon gender per se, even if the relationship would not have existed if the employee was a hypothetical male. In other words, the Court reasoned, Dr. Knight’s decision to terminate Ms. Nelson was not based upon her gender as such, but was driven completely by his individual feelings regarding a specific person. There was no evidence Dr. Knight was biased against female employees generally.
This opinion unleashed a firestorm of commentary, most of it critical. It is notable, however, that virtually all the criticism of the Court’s ruling is based upon the unfairness of the result, and ignores the Court's extensive discussion of applicable precedent and how it applied to the facts of this particular case. It is true that Ms. Nelson worked for this dentist a long time, and did nothing wrong. It was not the employee’s fault her boss did not exercise self control such that his wife could not trust him. Even the Iowa Supreme Court acknowledged the termination was unfair (and chided the dentist for giving his fired assistant “a rather ungenerous one month’s severance”).
I am certainly not defending Dr. Knight here. His conduct caused harm to his own family and his employee, and he put himself in the position of having to choose one over the other. Unfortunately, Ms. Nelson is the person out of a job. But, the anti-discrimination laws don’t prohibit unfair decisions; or harsh ones; or those based upon an employee’s attractiveness or lack thereof, whether male or female. If there is no harassment, no coercion, and no evidence of bias against female employees, there is no unlawful discrimination. It is also important to note that, while this ruling obviously touched some sensitive cultural nerves, it is not a decision that is likely to have significant impact on sex discrimination litigation. The Court expressly limited its ruling to the unique circumstances that existed in this particular situation. This case involved a family business owner's decision to favor his wife’s request over the interests of a particular female employee. While perhaps unfair, it was not unreasonable for the Court to conclude the Iowa Civil Rights Act does not make such a decision unlawful.
For some other thoughtful commentary on this decision, I recommend the following:
Rush, Nigut, at Rush on Business;
Thomas, Crane, San Antonio Employment Law Blog
Eric Meyer, at Employer Handbook Blog
Don't Forget About the Failure to Exhaust Administrative Remedies Defense: Eighth Circuit Holds that it Still Applies to Retaliation Claims, Overruling Precedent to the Contrary
Title VII requires an employee alleging unlawful discrimination or retaliation to file an administrative charge with the EEOC (or a similar a state or local agency with authority to seek relief) before bringing a suit in court. EEOC is charged with investigating claims and pursuing conciliation between the employee and employer where appropriate. The purpose of the administrative scheme is to avoid litigation as a first step in the process. It allows a neutral third party to investigate the claim and work toward resolution. Litigation is a last resort for claims that cannot be resolved, or where the employee decides to retain private counsel and pursue the claim him or herself.
The Supreme Court has deemed that EEOC investigation and conciliation is essential to Title VII’s enforcement scheme, and therefore has strictly enforced its requirements. It is not a mere procedural hoop through which a claimant has to jump. Courts have held that, unless EEOC has the opportunity to investigate and conciliate a particular claim, Title VII’s process would be frustrated. Thus, for example, an employee may not file an EEOC charge alleging sex discrimination and then sue for sex discrimination and disability discrimination. EEOC could not have investigated or conciliated the disability discrimination claim because it was not part of the charge, and therefore the employee barred from suing on such a claim.
Despite the strict enforcement of the administrative process, for many years there seemed to be a loophole in the Eighth Circuit for claims in which an employee alleged a retaliatory termination followed closely on the heels of the employee's filing of a discrimination charge. In Wentz v. Maryland Casualty Co., (8th Cir. 1989), Wentz filed an EEOC charge alleging age discrimination, and was terminated one day later. He did not file a second charge alleging retaliation, but nonetheless in a subsequent lawsuit claimed his termination was in retaliation for filing the age discrimination charge. In evaluating whether Wentz exhausted administrative remedies for the retaliation claim, the test applied was whether the claims in the lawsuit were “like or reasonably related to” charges that were timely filed with EEOC. In the Wentz case, the court held the retaliation claim should not be dismissed because is “grew out of the discrimination charge filed with the EEOC.”
The Eighth Circuit closed this loophole in a recent case involving almost identical circumstances. (Richter v. Advance Auto Parts (8th Cir. 8/1/2012)). Richter filed an EEOC charge on August 18, 2009. On the part of the form asking about the basis of the discrimination, she checked “race” and “sex”, but did not check “retaliation”. She informed a regional vice president about the EEOC charge on August 23, and was terminated on August 25. Richter did not fie another administrative charge nor amend the charge that was filed August 18. Nonetheless, when she filed a lawsuit, she alleged her termination was in retaliation for filing the August 18, 2009 administrative charge. The district court dismissed the retaliation claim for failure to exhaust administrative remedies, which was affirmed on appeal.
In its opinion in Richter, the court did not expressly state that Wentz was overruled, but in effect that is what occurred. The Court said it had “considerably narrowed [its] view of what is ‘like or reasonably related’ to the originally filed EEOC allegations.” Strict application of the statutory text requires an employee to file a charge for each discrete act of discrimination. In other words, retaliation that occurs after an employee files an EEOC charge is separate and distinct from the discrimination alleged in the charge, and thus requires a new or amended charge.
One judge dissented, arguing that strict application of the exhaustion requirement in these circumstances was a “needless procedural barrier”, and there were policy reasons for following a standard that judges could apply more flexibly. The majority rejected that view, concluding that strictly following the text was the best guarantee of evenhanded administration of the law.
Richter is an important reminder to employers and defense counsel that the administrative charge still matters, and the failure to exhaust defense remains potent in the right circumstances. Some may claim it is unfair for the employer to rely upon a techincal defense that avoids facing the merits of a retaliation claim. However, given the expense and risks of defending these claims through trial, there is nothing unfair about expecting the employee to follow the law's procedural requirements before suing.
Under the FMLA, liquidated damages are a form of “extra” damage a court may award over and above other damages an employee is awarded. The employer can avoid liquidated damages, however, if it proves the FMLA violation was in good faith, that is, the employer reasonably believed its action did not violate the FMLA.
Marez v. Saint Gobain Containers (8th Cir., 7/31/12), shows that a decision maker’s good faith is not enough to avoid liquidated damages if the plaintiff relies upon the “cat’s paw” theory to prove liability. Cat’s paw in employment discrimination means an employer can be liable for discrimination even if the decision maker was not biased. It applies if there is evidence a non-decision maker acted with a discriminatory motive and caused the adverse employment action. The most common example is when the decision maker relies upon information or advice given by a biased non-decision maker.
Marez worked as a production supervisor at Saint Gobain plant that made glass beer bottles. On January 28, 2008, Marez notified her supervisor that she would require FMLA leave for her husband’s upcoming surgery; Marez did not know the exact date of the surgery but said it would be “soon.” Marez did not notify anyone else at the company about her leave request, nor did her supervisor. Notably, Marez had been on FMLA leave the previous July and August for several weeks, and there was evidence her supervisor was irritated about her lack of availability during that time.
Two days later, on January 30, Marez was terminated. One of the reasons given for the termination was that Marez had falsified paperwork. Specifically, she had reported on a check sheet that a piece of equipment was functioning when in fact it was “flatlining”, or not reporting data. Marez claimed it was an error and not a deliberate omission. Marez’s supervisor was the one who discovered the paper work was wrong. The supervisor assembled and presented the information about Plaintiff’s paperwork to another member of management. They consulted with the plant manager, and the three of them together made the decision to terminate Plaintiff.
The jury awarded the plaintiff damages of $206,500 for a FMLA violation, and the court added an additional $206,500 as liquidated damages. On appeal, Saint Gobain claimed that the trial court should not have awarded liquidated damages because two of the decision makers, the plant manager and another member of the management team, did not know about Plaintiff’s FMLA request at the time of the termination, and therefore reasonably believed Plaintiff’s termination would not violate the FMLA. In other words, even though Marez could rely upon a “cat’s paw” theory to establish liability under FMLA, Saint Gobain argued it should be not used as a basis for awarding liquidated damages. The Court rejected that argument:
Were we to accept the proposition that the cat’s paw theory applies to determining liability and lost wages but not to liquidated damages, that would have the result of treating less favorably for purposes of damages calculations plaintiffs who utilize the cat’s paw theory than those who do not. We see no basis in the statute for such a result.
The result in Marez is not surprising, given the tendency of courts to extend the cat’s paw theory to all of the laws that govern the employment relationship. This case should reinforce the importance of thorough investigations of the facts and circumstances before termination decisions are made. That includes getting the employee’s side of the story and whenever possible have a disinterested person investigate the facts.
Injunction Against HHS Coverage Mandate Raises Question Whether Employers Have Right to Religious Accommodation
Just days before the Health and Human Services contraceptive mandate went into effect, a federal district court in Colorado issued a temporary injunction exempting a Denver based company from its application. (See ruling in Newland v. Sebelius here). The controversial HHS rule requires all employer provided health coverage, with limited exceptions for certain religious organizations, to cover FDA approved contraceptive methods (which include sterilization and abortifacient drugs) at no cost to the employee. Since the publication of the final rule in January, HHS has come under fire for refusing to provide a broader exemption for religious organizations such as hospitals, schools, colleges, and charities. (See our post on the subject here). Nearly 60 different religious organzations, including the University of Notre Dame, have sued HHS Secretary Sebelius to block application of the rule to their organizations.
The Colorado ruling is remarkable, however, because the plaintiff is not a religious organization but a private corporation that manufactures heating, air conditioning and ventilation products. The owners of Hercules Industries are a Catholic family who strives to operate their business consistent with the teachings of the Church. Hercules has a self-insured health plan for its employees that does not cover contraception, abortion, or sterilization. The HHS mandate would have forced Hercules health plan to cover these items effective August 1, 2012.
The Hercules Inudstries case presents a very important question whether a corporation operating in the secular, commerical world has the right to operate consistent with the religious principles of its owners. For decades employees have had the right to exercise their religion in the workplace so long as it does not create an undue hardship to the operation of the employer's business. Hercules Industries does not have the right to refuse to hire non-Catholics or to force its employees to practice the Catholic Faith. Should an employer have a similar right to accomodation from a government rule that imposes an obligation contrary the the religious faith of its owners, so long as it does not interfere with the rights of its employees?
As shown by the recent efforts of several big-city Mayors to ban Chick-Fil-A because of statements made by one of its owners, the issue of an employer’s religious liberty is not limited to contraceptive coverage in health insurance. In the Hercules case, the government took the position that a private corporation engaging in commerce has no religious rights. Senior District Judge Kane rejected that position, at least for now. The temporary injunction means only that the court believes there is a "likelihood of success" on the merits, subject to a final ruling after all the evidence and legal arguments are considered.
Jon Hyman of Ohio Employer's Law Blog posted an excelleing piece several months ago proposing an Employer's Bill of Rights to balance the many rights their employees posess. Perhaps the right of a business owner to practice his or her religion in the workplace could be added to the list.
Eighth Circuit Finds that Public Employee's Gender Discrimination Claim Not Subject to Time Limits of Title VII
Crystal Henley enrolled in the Kansas City Police Academy in September 2005. By November 8, she was forced to leave and was not able to complete her training to become a police officer. During her short time at the Academy, Henley claims she was treated more harshly than male trainees, subject to sexual harassment, and even physical assault.
Almost five years later, in October 2010 Henley filed a lawsuit against the Kansas City Board of Police Commissioners and several of the employees and officials of the police academy, alleging sex discrimination and harassment in violation of her right to equal protection under the Constitution. The defendants asked the court to dismiss the suit because Henley had failed to first file an administrative charge with the EEOC, as is required to pursue a discrimination and harassment claim under Title VII. The reason she could not file an EEOC charge, of course, was because too much time had passed—a complainant has only 300 days after the alleged discriminatory conduct. The District Court agreed with the defendants that Henley failed to exhaust her administrative remedies, reasoning that Henley could not “circumvent Title VII requirements by only pleading violations of the Equal Protection Clause [of the Constitution].”
The Court of Appeals reversed the dismissal of Henley’s gender discrimination claims. (See ruling here) While acknowledging that Title VII procedures must be followed for violations of its terms, in Henley’s case, she was relying upon the Equal Protection Clause as the source of her right to be free from gender based discrimination. If a right is secured by the Constitution independent of Title VII, the Court reasoned, a plaintiff does not have to rely upon Title VII’s remedies to pursue such a claim.
The Court did not find that Henley actually asserted a plausible claim for gender discrimination based upon the Equal Protection clause. The case was remanded back to the district court to consider that question. Actually proving the defendants violated her Constitutional rights may be an uphill battle. Nonetheless, this ruling opens new doors gender based discrimination claims for public employees. The most significant practical impact is that potential claims once considered stale because more than 300 days had passed may have new life because of longer limitations periods for Constitutional claims. Public employers should be alert that this case presents yet another employment risk when taking adverse action against employees.
Unfortunately, the UI law school is learning this maxim the hard way. After securing a defense verdict last February in an age discrimination lawsuit an aspiring law professor filed, the same person has sued again. This time, Donald Dobkin alleges the UI refused to hire him because of his age and because of his prior lawsuit. Adding insult to injury, the second suit is based upon information the UI disclosed in discovery during the first lawsuit.
Dobkin filed his first lawsuit in 2009. Despite his pending claim, he again applied to the UI during the 2010 hiring cycle, and documents concerning the hiring decisions in 2010 were part of the discovery in the 2009 case. According to Dobkin’s attorney, the faculty committee interviewed a candidate in 2010 that scored 40 points below Dobkin on the law school’s preliminary screening tool that it uses to rank candidates. In the 2009 case, however, the UI claimed that Dobkin was not interviewed because the law school school interviews only the best candidates as shown by the preliminary screening. Whoops.
There was also evidence that a member of the hiring committee considered in deciding not to interview Dobkin that he had a pending discrimination case against the law school. Whoops again.
While a lawsuit contains only allegations, it should present a teachable moment to the professors on the faculty hiring committee.
First, it is important to remember that the stated reason you give for an adverse employment decision must be the real reason, and not appear to be a reason made up after the fact to justify the decision.
Second, when relying upon screening tools, it is important to apply them consistently. If there is a deviation from a standard practice in the case of a particular candidate, there should be a stated and documented rationale for the deviation.
Lastly, employers must remember that a pending discrimination claim creates an genuine risk of a subsequent retaliation complaint if the pending claims plays a role in an adverse hiring decision. Decision makers must remember that everything they write or put in a e-mail that refers to the pending claim, even if innocent or innocuous, is potential evidence in the next case. Even if you win the first case, it does not mean you are forever out of the woods.