PRINCE WILLIAM SHRM
January 5, 2011
WHAT HAPPENED IN EMPLOYMENT LAW IN 2010; WHAT'S COMING
IN 2011
Tyler A. Brown
Jackson Lewis LLP
10701 Parkridge Blvd, Suite 300
Reston, VA 20191
Phone: 703-483-8300
E-mail: brownt@jacksonlewis.com
BRIEF OVERVIEW OF FEDERAL LAW
DEVELOPMENTS IN 2010
•
HEALTH CARE REFORM
•
PENDING EMPLOYEE MISCLASSIFICATIONS
PREVENTION ACTION
•
USDOL RULE’S ON UNPAID INTERNSHIPS
•
EEOC’s SUPER AGGRESSIVE SYSTEMIC
DISCRIMINATION INITIATIVE
•
BREASTFEEDING RIGHTS/FLSA
AMENDMENT
•
FMLA
•
GINA
2
Newly Enacted and Pending State Laws
and Regulations
Employee Misclassification Prevention Act
Employee Misclassification Prevention Act
Target abuses of independent contractor classification
introduced in both houses of Congress on April 22, 2010.
Aimed at ensuring that workers who are considered
“employees” under the FLSA are properly classified by
their employers
• Making them eligible for minimum wage, overtime and
other statutory employee protections
• Providing tax revenue to the government employer
withholdings and payments
5
Provisions of the Misclassification Bill
• The Bill provides:
• Employers must keep records reflecting the correct status
of each worker as an employee or nonemployee;
• Employers must state expressly that they violate the FLSA
when they misclassify workers;
• Civil fines of $1,100/employee for repeat or willful
violators;
• Double liquidated damages for failing to accurately
classify an individual as an employee and violate the
minimum wage or maximum hour provisions of FLSA;
6
Practical Solutions for Addressing
Misclassification Issues
• Conduct an Audit of All Positions

Involve counsel with the audit

Preserve attorney-client privilege
• Change Job Titles for
Independent Contractors

Ensure that, where possible,
contractors have titles that
employees do not have
7
President Obama’s Message to Employers
President Obama’s Message to Employers (cont’d)
You will pay for misclassifying independent contractors:
•
“As part of the 2011 budget, the Departments of Labor
and Treasury are pursuing a joint proposal that
eliminates incentives in law for employers to misclassify
their employees; enhances the ability of both agencies to
penalize employers who misclassify; and restores
protections to employees who have been denied them
because of their improper classification. This proposal
would increase Treasury receipts by more than $7 billion
over 10 years. The 2011 budget for [the
Department of Labor] includes an additional
$25 million to target misclassification with
100 additional enforcement personnel and
competitive grants to boost States’ incentives
and capacity to address this problem.”
9
President Obama’s Message to Employers (cont’d)
• The IRS is to conduct 6,000 audits of companies for
compliance in the next three years.
• The most misclassified workers are truck drivers,
construction workers, home health care aids, and high-tech
engineers.
• A misclassified employee is not entitled to the same
protections of the discrimination laws and cannot form
unions.
• Furthering the push for more aggressive enforcement is the
Labor Department’s new top law enforcement official, M.
Patricia Smith, formerly New York’s Labor Commissioner,
who has a reputation for cracking down on misclassification.
10
Unpaid Internships
Unpaid Internships Under FLSA
• Department of Labor released new Fact Sheet on April
21, 2010 regarding unpaid internships in the “for
profit” private sector
• New Guidelines:

If the intern is engaged in the operations of employer or
performing other productive work (i.e., assisting
customers, filing, etc.), then they are NOT exempt from
the FLSA’s minimum wage and overtime requirements

This applies even if they are receiving benefits in the
form of a “new skill or improved work habits”
12
Next Steps for Employers
• Before considering offering an unpaid internship,
carefully evaluate whether each of the following factors
are met:

The internship is similar to the training provided in
an academic or vocational setting

The unpaid intern does not displace regular paid
workers

The employer does not receive an “immediate
advantage” from the intern’s work
• If any of these factors are not met, the intern MUST be
paid minimum wage and overtime in order to
comply with the FLSA
13
Patient Protection & Affordable Care Act
Patient Protection & Affordable Care Act
• Amends FLSA: employers must furnish
“reasonable” breaks to mothers to express milk
for infants up to 1 year old

Time is unpaid

FLSA mandates paid breaks if ≤ 20 minutes
• Employer must furnish a private space, other than
a restroom, for lactation

Employer ≥ 50 employees. Smaller employers
excluded only if can prove undue hardship
15
What’s Happening at the EEOC
What’s Happening at the EEOC?
Private Sector Discrimination Charges Received by EEOC
100,000
95,402
93,277
2008
2009
80,000
75,768
82,792
60,000
40,000
20,000
0
2006
2007
17
17
What’s Happening at the EEOC?
“The near-historic level of total discrimination charge
filings may be due to multiple factors, including
greater accessibility of the EEOC to the public,
economic conditions, increased diversity and
demographic shifts in the labor force, employees’
greater awareness of their rights under the law,
and changes to the agency’s intake practices that
cut down on the steps needed for an individual to
file a charge.”
--EEOC Press Release
(Jan. 2010)
18
18
FY 2009 Charges By Type
Retaliation Becomes the Most Popular Type of Charge
Filed, Edging Out Race for the First Time
19
19
What’s Happening at the EEOC?
• Most frequent charges brought by employees in 2009
were race discrimination (33,579 charges), retaliation
(33,613) and sex discrimination ( 28,028).
• Age remains a substantial charge with 22,778 filings
although this was a decline from 24,582 the prior year
• One area where we see significant increase from 2008
is disability discrimination charges, which rose 10.6%
from 19,453 to 21,451 filings
20
20
What’s Happening at the EEOC?
• The total number of filings in which the EEOC
issued a “no reasonable cause” finding
increased from 47,152 (58.2% of all
resolutions) to 52,363 (60.9%).
• Total monetary relief recovered by the EEOC
in 2009 through enforcement, mediation and
litigation equaled $376 million.
• The EEOC predicts it will receive over
101,000 charges in FY 2010, the largest
number ever filed.
21
21
What’s Happening at the EEOC?
• The EEOC received a funding increase of $23
million in its FY2010 budget; the Obama
Administration requested an additional $18 million
increase for FY2011
• In late March, President Obama announced four
EEOC recess appointments, including Jacqueline
Berrien, who was serving as Associate DirectorCounsel of the NAACP Legal Defense and
Educational Fund, to become EEOC Chair
22
22
What’s Happening at the EEOC?
Systemic Discrimination Initiative:
The EEOC defines systemic discrimination as “a
pattern or practice, policy, or class case where the
alleged discrimination has a broad impact on an
industry, profession, company or geographic
area.”
23
23
What’s Happening at the EEOC?
Systemic Discrimination Initiative: The EEOC defines
systemic discrimination as “a pattern or practice,
policy, or class case where the alleged
discrimination has a broad impact on an industry,
profession, company or geographic area.”
BEST PRACTICE TIP:

Review Your Policies For Job-Relatedness and
Ensure Consistent With Business Necessity

Make Certain You Use Validated Tests

Consider Conducting Periodic disparate impact
analysis or selection or promotion criteria
24
24
FMLA Regulations
What the 2009 FMLA Regulations Mean for Litigation;
Traps to Avoid: “In Loco Parentis”
• DOL Administrator’s Interpretation No. 2010-3 (June 22,
2010):
• FMLA regulations define in loco parentis as those “with dayto-day responsibilities to care for and financially support a
child.”
• The Interpretation states that an individual can establish in
loco parentis as someone with day-to-day care OR financial
support.
• Consider: Grandparents, godparents, uncles, stepparents. . .
• Employer may require reasonable documentation of family
relationship
• Don’t automatically discount cases involving care of, or
by, a non-parent.
26
GINA
The Genetic Information Nondiscrimination Act
Developed to address concerns that genetic testing may
result in loss of health insurance coverage or
employment.
Designed to encourage people to use genetic testing to
gain insight into potential illnesses.
Genetic information is:
•
Individual’s Genetic Tests

Family Members’ Genetic Tests


Manifestation of a Disease or Disorder in Family
Members of the Individual
Genetic Services & Genetic Research
28
The Genetic Information Nondiscrimination Act
GINA prohibits:
•
Discrimination against employees in the terms and
conditions of employment
•
•
•
Acquiring Genetic Information
•
•
Fail to Hire, Discharge, Discriminate in terms of
compensation, terms, conditions, privileges, of
employment
Limit, Segregate, or Classify Employees in any way
that would deprive any employee of employment
opportunities or otherwise adversely affect the
employee’s status
Unlawful to Request, Require, or Purchase Genetic
Information About an Employee or the Employee’s
Family Member
Disclosing Genetic Information
29
The Genetic Information Nondiscrimination Act
6 exceptions to the prohibition on acquisition:
• Inadvertent Requests: The “Water Cooler”
Exception
• Health or Genetic Services
• Family and Medical Leave Act
• Commercially and Publicly Available
Information
• Genetic Monitoring
• DNA Testing For Law Enforcement
30
The Genetic Information Nondiscrimination Act
•
•
•
No requests for genetic information as part of postoffer medical exam allowed by ADA
Reasonable accommodations are not covered if the
request was lawful
GINA does not apply to information received as part of
a fitness for duty test
—
•
Exemption: Voluntary Wellness Programs
Requesting entire medical file in response to a request
for leave
31
The Genetic Information Nondiscrimination Act
Best Practices:
• Do not discriminate on the basis of genetic information
no matter how the information was obtained
• Make sure employer’s and insurer’s forms do not
request family medical history
•
Consider including express statement not to provide
family medical history
• Be careful of broad requests for medical files
• Update handbook policies
• New “Equal Employment Opportunity Is The Law” poster
• Train HR and supervisors
32
The Genetic Information Nondiscrimination Act
Best Practices Continued:
• Be careful what you say in response to an employee’s
disclosure of genetic information
• Be careful what you tell others about an employee’s
genetic information
• Ensure all adverse action is well-documented to avoid
problems after inadvertent disclosure of genetic
information
33
Supreme Court Review
Supreme Court Cases
Decided in 2010
35
Stolt-Nielsen v. AnimalFeeds
559 U.S. __ (2010)
Decided April 27, 2010
• Case arose in context of a commercial dispute involving maritime
law
• No clause in arbitration agreement authorizing class-wide
arbitration
• Arbitration panel held class action could go forward
• After issuance of award, defendant moved to vacate the award
under the Federal Arbitration Act
• District Court granted motion but Second Circuit reversed
36
Stolt-Nielsen v. AnimalFeeds
559 U.S. __ (2010)
Decided April 27, 2010
• Sup. Ct. noted arbitration under the FAA is a matter of consent,
not coercion, and that private agreements need to be enforced
according to terms
• Parties are free to structure their arbitration agreements
• Sup. Ct. held that it was error to order parties’ dispute to
proceed with a class arbitration because the parties had not
agreed in advance to do so
• Lesson: Address issue of class arbitration in arbitration
agreement!
37
City of Ontario v. Quon
130 S.Ct. 2619
Decided June 17, 2010
Facts:
•
City issued 2-way pagers to SWAT Team
•
Had Electronics Communication Policy, but silent as to pagers
•
Had “No Expectation of Privacy” provision
•
Conveyed in meeting and told about audit
•
Excessive Overage Usage
•
Decided to review text messages
•
Got transcripts from wireless service provider
•
Didn’t search off-duty hours texts
•
Only a representative sample of each employee’s texts was viewed
•
Quon sent 456 messages during work hours in August ’02 - only 57 were
work related; sent as many as 80 a day; received as many as 28 a shift only 3 work related; some to his wife & some to mistress
•
Quon sent sexually explicit messages on the clock
38
City of Ontario v. Quon
130 S.Ct. 2619
Decided June 17, 2010
• Unanimous decision
• Court reversed and concluded that City’s review of employee’s pager
messages was:
•
Legitimate
•
Reasonably related to work purpose
•
Did not intrude on privacy expectation or 4th Amendment rights
• Court intentionally avoided determining whether privacy expectation
actually existed
• Limited decision to facts of case, due to “rapid changes in the
dynamics of communication and information transmission” and
societal acceptance of the same
39
New Process Steel v. NLRB
560 U.S. ___ (2010)
Decided June 17, 2010
• Facts:
•
•
•
•
•
NLRB had 4 members in ’07
Knew terms were expiring
Delegated authority to three-member panel
Panel member term expired, so went down to two members in
early ‘08
600 decisions issued from 1/08 to 3/10
• Court held that while it was an “understandable desire to
keep its doors open despite vacancies”…
• The NLRA does not “authorize the Board to create a tail that
would not only wag the dog, but would continue to wag
after the dog had died”
• Lots of rubber stamping of decisions going on now
40
Rent-A-Center v. Jackson
130 S.Ct. 2772
Decided June 21, 2010
•
Jackson filed employment discrimination suit
•
Rent-A-Center moved to dismiss and compel arbitration
•
Jackson opposed
•
Arbitration agreement he signed was unenforceable because unconscionable
under Nevada contract law
•
Company argued unconscionability was issue for arbitrator
•
Lower court ruled in favor of company, but 9th Cir. Reversed
•
9th Cir. held where “party challenges an arbitration agreement as
unconscionable, and thus asserts that he could not meaningfully assent to the
agreement, the threshold question of unconscionability is for the court”
41
Rent-A-Center v. Jackson
130 S.Ct. 2772
Decided June 21, 2010
Does the court have jurisdiction to decide if an agreement to arbitrate is
unconscionable, even when the parties to the contract have clearly and
unmistakably assigned this “gateway” determination to the arbitrator?
5-4 decision
Court reversed 9th Cir.
Arbitration is a matter of contract
Court held that when the entire contract (e.g. employment agreement as a
whole) is challenged, issue of enforceability is decided by arbitrator – e.g.
fraudulent inducement
But…when the challenge is to the enforceability/validity of the arbitration
provision itself, issue is for the court
42
This Term’s Preview
Cases Being Argued in
2010
43
Nelson v. NASA
Argued on October 5, 2010
ISSUE: Whether NASA’s background investigations violate federal
contract employees’ constitutional right of information privacy?
FACTS: 28 scientists/engineers asked on questionnaire about
treatment/counseling for illegal drug use in last year. References
asked same questions. Responses used only for employment,
protected by Privacy Act.
HELD: District Court denied injunction. 9th Cir reversed: Gov’t – no
legitimate state interest in asking for drug treatment – inquiry not
narrowly tailored
44
Nelson v. NASA
Argued on October 5, 2010
SIGNIFICANCE
Question is extent to which government may protect the
safety/security of federal facilities
No court has held that applicants have constitutional right to privacy
of information disclosed by their references
S Ct – has held that applicants have no legitimate expectation of
privacy of information they voluntarily disclose
No court has held a gov’t EE to have a constitutionally-protected right
to privacy not to disclose illegal drug use
DISSENT: Court of Appeals’ Panel decision “opens the door for
lawsuits against employers who perform standard reference
checks”
45
Kasten v. Saint-Gobain
Argued on October 13, 2010
• ISSUE: Whether an employee’s verbal, not written, complaints of
violations of the FLSA constitute “protected activity” to establish basis for
retaliation claim?
• FACTS: Kasten was required to use timecard at Kronos time clock, which
he contended was unlawfully placed and did not permit employees to
account for time “donning” and “doffing” protective equipment.
• Progressively disciplined & terminated, Kaston argued that he was
terminated in retaliation for “filing” a complaint re: FLSA violation
• Dist Ct – granted MSJ for the Company
46
Kasten v. Saint-Gobain
Argued on October 13, 2010
HELD: 7th Circuit sustained the lower court:
•
FLSA & ADEA forbid retaliation against employee who has
“opposed any practice” unlawful under the statutes.
•
FLSA non-retaliation provision does encompass internal
complaints.
•
“Filing” a complaint means in writing – “to file” is not the same as
“to submit.”
SIGNIFICANCE: Title VII & ADEA forbids retaliation against
employee who “has opposed any practice” - broader language.
4th Circuit - FLSA prohibits retaliation, but NOT for employee
“voicing” a position on working conditions in opposition to an
employer.
47
Staub v. Proctor Hospital
Argued on November 2, 2010
ISSUE: “Cat’s Paw” theory or liability – can an employer be found liable
for unlawful intent of a supervisor who influenced, but did not make
the decision?
FACTS:
•
Staub – angio tech for hospital
•
Army Reservist – weekend drills and 2-weeks
•
Supervisor Mulally – interfered, gave him grief, scheduled him weekends,
bad-mouthed him
•
Military duties – “bullshit”, “Army Reserve bullshit”, “bunch of smoking &
joking”
•
Progressive discipline – suspension & termination
•
VP HR Buck = decision-maker – reviewed the file, relied on other factors
(attitude, flirting with med students)
48
Staub v. Proctor Hospital
Argued on November 2, 2010
FACTS:
•
Jury trial - $57K for Staub
HELD:
•
Overruled the jury verdict – trial court erred in not making finding of
“singular influence” before giving case to jury
•
Buck need not be “paragon of independence”
•
Sufficient if “not wholly dependent on a single source of information
and conducts her own investigation into the facts”
•
Trial Court erred in not making initial determination
SIGNIFICANCE:
•
Factual issue of “singular influence” will be tried to judge –
not jury.
49
AT&T Mobility v. Concepcion
Argued on November 9, 2010
ISSUE: Does an arbitration agreement waiving class actions control over
California state law? [Not employment]
FACTS:
•
AT&T Mobility offered “free” phones with new service
•
Plaintiffs sued for non-compliance with the offer
•
AT&T moved to compel individual arbitrations
•
Plaintiffs argued under Calif. Law, the arbitration clause and class-action waiver was
unconscionable and unenforceable
HELD: 1) Contract of adhesion? 2) Small amounts involved? 3) Scheme
to cheat? - Yes - waiver unconscionable under Calif. Law
SIGN: Workplace arbitration agreements may be
at risk
50
Thompson v. North American
Stainless Argued on December 7, 2010
ISSUE: RETALIATION – cause of action under Title
VII for persons who have not engaged in
protected activity?
FACTS:
•
Thompson employed by N. American – six years
•
Met, dated, engaged to fellow employee Regalado
•
She filed a gender charge with the EEOC
•
He was terminated three weeks later
•
Trial Court = Summary Judgment for company
HELD: Affirmed. Joining the Third, Fifth & Eighth
Cirs
•
claimants must have personally opposed a practice, filed
a charge, or assisted or participated in an investigation.
51
Next Term’s Preview
Preview of Coming
Attractions
52
Dukes v. Wal-Mart Stores
• Seven female Wal-Mart EEs filed class action alleging female EEs
receive lower pay and fewer and slower promotions
• Plaintiffs were seeking injunctive and declaratory relief, back pay
and punitive damages
• Potential class size over 1.5 million employees
• 3400 stores and numerous different positions
• Plaintiff offered factual, expert, statistical and anecdotal evidence
of co-wide gender disparities
• Ninth Circuit sitting en banc affirmed certification of largest
employment class action in history
53
Dukes v. Wal-Mart Stores
• Whether claims for monetary relief can be certified
under FRCP 23(b)(2) – by its terms appears to be limited
to injunctive or declaratory relief?
• Certiorari granted
• There is a split in the circuits and the class is huge
54
Trends To Watch in 2011
Trends and Legislation to Watch
• Worker Adjustment and Retraining
Notification Act (WARN) and wage
and hour lawsuits (FLSA and state
law) have shown increases in the
past year.
• Growing areas for employment
class actions:

Meal and rest breaks

Sharing tips

Job classifications
•
Donning and doffing
56
56
Trends and Legislation to Watch
Employee Non-Discrimination Act
(H.R. 2981/S. 1584)
Would prohibit employment discrimination on the
basis of sexual orientation or gender identity
Affects employers, labor organizations/training
programs, and employment agencies
Supported by President Obama and EEOC
Chairman Stuart Ishimaru, who called ENDA “sorely
needed” and “long overdue” before a congressional
committee
Passed House but failed in Senate in 2009
57
57
Trends and Legislation to Watch
Employee Leave Bills:
•
Highlights of bills amending the FMLA
include:

Leave to care for same-sex spouses, domestic
partners, parents-in-law, adult children, siblings or
grandparents

Leave associated with domestic violence and
sexual assault

•
Paid parental leave for federal employees
Healthy Families Act:

Up to 7 paid sick days per year

Personal medical needs, family medical needs, or
domestic violence, stalking, or sexual assault
58
58
Trends and Legislation to Watch
Employee Leave Bills:
•
•
Family Leave Insurance Act (H.R. 1723):

Employees could receive up to 12 weeks of
paid leave

Would create a 0.2% tax on employee earnings
to finance paid time off program
Family and Medical Leave Restoration Act (H.R.
2161):

•
Would undo many changes to FMLA regulations
adopted by Bush Administration in 2008
Leave associated with H1N1 and similar flu viruses
59
59
The Americans with
Disabilities Act (ADA)
… as amended by the ADA
Amendments Act (ADAAA)
EEOC Regulations
(Over)Due
60
Any Questions?
THANK YOU!
For More Information, Contact:
Tyler A. Brown, Esq., 703-483-8314, brownt@jacksonlewis.com
62
62
Bonus : 2010 Case Review
Employment
SOX Claimant Stays in Court
In this first-impression case, a would-be whistleblower gets a de novo proceeding of his
Sarbanes-Oxley case in federal district court, as the 4th Circuit reverses the district court’s
dismissal of the suit in favor of an administrative forum.
Stone v. Instrumentation Laboratory Co. (VLW 010-2-002) (20 pp.)
Employment Discrimination
Summary Judgment for School System Denied
A 20-year veteran of defendant school system who alleges her demotion from a supervisory
position to a job working with anti-social and violent students cost her over $100,000 in wages
and benefits can pursue her Title VII retaliation claim, says a Roanoke U.S. District Court.
Session v. Anderson (VLW 010-3-072) (9 pp.)
Employment Discrimination
Condo Lawyer Not Liable
A lawyer for a condo association wins summary judgment in this 42 U.S.C. § 1981 action by an
African-American building manager who was terminated because of his criminal record, in this
case from Alexandria federal court.
Ford v. Zalco Realty Inc. (VLW 010-3-048) (13 pp.)
63
Bonus : 2010 Case Review
Employment
Punitives Ordered for Former Employee
A former employee, shareholder and corporate officer for a car dealership violated a
noncompete by forming a competing business while still employed by the dealership, and he
must pay damages – including punitives – for his breach of fiduciary duty and for conversion, a
Fairfax Circuit Court says.
Redden v. Liptau (VLW 010-8-050) (15 pp.)
Employment
Terminated Prof Denied Injunction
A college professor whose contract was not renewed, but who nevertheless was pursuing
tenure, cannot get a preliminary injunction, says a Big Stone Gap U.S. District.
Holbrook v. The University of Virginia (VLW 010-3-173) (8 pp.)
Employment Discrimination
Store Has Potential Supervisor Liability
Looking to Title VII cases, the 4th Circuit says a retail store manager was a female assistant
manager’s supervisor, not her coworker; the appellate court reverses summary judgment for
employer on the woman’s sexual harassment claim based on a South Carolina human rights
statute.
Whitten v. Fred’s Inc. (VLW 010-2-082) (30 pp.)
64
Bonus : 2010 Case Review
Employment Discrimination
Truck Driver Can Try Claim
Saying a jury could find that gender discrimination “was afoot,” the 4th Circuit reverses
summary judgment for a trucking company sued under Title VII by a female truck driver who
claims discrimination because the company required a physical ability test before she
returned to work after on-the-job foot injuries, and fired her when she failed the PAT.
Merritt v. Old Dominion Freight (VLW 010-2-088) (24 pp.)
Employment
Job Applicant Not Covered by FLSA
A job applicant can’t sue under the FLSA’s anti-retaliation clause on a claim that a government
contractor withdrew a job offer after learning she had filed an overtime-pay claim against the
last contractor who employed her, in this Alexandria U.S. District Court case.
Dellinger v. Science Applications Int’l Corp. (VLW 010-3-172) (14 pp.)
Employment
CEO’s ‘Bonus’ Checks Not Proven
An association CEO says her “bonus” checks were authorized, but an Alexandria U.S. District
Court says it’s not clear and the board president’s comment that the CEO was terminated for
improperly diverting funds was privileged; the court grants summary judgment to employer in
the CEO’s wrongful termination and defamation suit.
Greene v. National Head Start Ass’n Inc. (VLW 010-3-245) (22 pp.)
65
Bonus : 2010 Case Review
Employment Discrimination
Doctor Can Try Her ‘Hostile Environment’ Case
The 4th Circuit says a “shock jock” owner of a medical clinic must face trial on a female
physician’s claim that she endured a hostile environment from the employer’s “series of
graphic remarks of a highly personal nature.”
EEOC v. Fairbrooks Medical Clinic P.A. (VLW 010-2-120) (18 pp.)
Employment Discrimination
Suit Charges No Response to Harassment Claims
A Charlottesville U.S. District Court refuses to dismiss a Title VII sexual harassment complaint
filed by three female bank employees who allege bank supervisors failed to respond to their
complaints about a female branch manager who repeatedly made comments of a sexual
nature, asked for hugs and kisses and physically assaulted one plaintiff.
Colie v. Carter Bank & Trust Inc. (VLW 010-3-280) (16 pp.)
Employment Discrimination
Employer Not Biased Against Non-Hispanics
New management’s decision to hire Hispanic housekeepers for seven of eight jobs at a Best
Western hotel did not violate Title VII, an Alexandria U.S. District Court says as it dismisses the
EEOC’s complaint.
EEOC v. Mount Vernon Holdings LLC (VLW 010-3-378) (22 pp.)
66
Bonus : 2010 Case Review
Employment Discrimination
School Wanted ‘21st Century Communication Skills’
A Richmond U.S. District Court dismisses an age discrimination suit against a county school
superintendent filed after the school board allegedly replaced a 60-year-old female publicinformation director with her 37-year-old male assistant because the superintendent wanted
someone with “21st Century communications skills.”
Marlow v. Chesterfield County School Board (VLW 010-3-363) (11 pp.)
Employment Discrimination
NoVa Realty Office Not Covered as ‘Alaska Native’ Company
A Title VII exemption that allows Alaskan companies a hiring preference for Native Alaskans
does not protect a realty office that has an indirect subsidiary relationship with a Native
Corporation, an Alexandria U.S. District Court says in this first-impression suit filed by an
African-American male.
Fox v. Portico Realty Services Office (VLW 010-3-413) (17 pp.)
Employment Discrimination
‘Twiqbal’ Covers Affirmative Defenses
A woman who alleges gender discrimination in her discharge from her job as a milker at
defendant dairy succeeds in striking affirmative defenses pleaded by employer that do not
meet the pleading standard under Twombly and Iqbal.
Palmer v. Oakland Farms Inc. (VLW 010-3-397) (12 pp.)
67
Bonus : 2010 Case Review
Employment
Fraud Investigator Can Sue Under Bowman
A Warren County Circuit Court says a fraud investigator for a local services department can
sue her employer for wrongful discharge under Bowman, based on allegations that her
employer prevented her investigation of fraud cases and her cooperation with the prosecutor,
and that her grand jury appearance contributed to her termination.
McCloskey v. Warren County Dep’t of Social Servs. (VLW 010-8-164) (4 pp.)
Employment
No Long-Term Disability for Chronic Fatigue Syndrome
Although an employer’s disability plan administrator may have had an “aggressive claims
denial practice,” its liberal appeals process in this case mitigates the importance of that
history, and a Charlottesville U.S District Court upholds denial of long-term disability benefits to
an epidemiologist who failed to demonstrate that her chronic fatigue syndrome rendered her
incapable of full-time employment.
Van Valen v. Employee Welfare Benefits Committee (VLW 010-3-523) (12 pp.)
Employment Discrimination
Three-Time Insult Not ‘Hostile Environment’
There’s no bright-line rule on how many times a supervisor can use a racial slur to an
employee without creating a Title VII hostile work environment, says a Danville U.S. District
Court, but a foreman’s use of a racist epithet three times is not “objectively abusive.”
Hampton v. J.W. Squire Co. (VLW 001-3-516) (9 pp.)
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Bonus : 2010 Case Review
Employment Discrimination
Retaliation Claim Relates Back
A woman who alleges similar acts of retaliation, including assignment of her work to coworkers and denial of a pay increase, both before and after she notified employer that she had
filed an EEOC charge alleging age and race discrimination, may pursue both counts of her
claim, says an Alexandria U.S. District Court.
Harman v. Unisys Corp. (VLW 010-3-544) (18 pp.)
Employment
Groundskeeper With No CDL Loses Job
A city groundskeeper who lost his job can’t get back pay or alternative placement from a
grievance panel, but the panel could award a modified remedy, says a Norfolk Circuit Court.
Brito v. City of Norfolk (VLW 010-8-221) (5 pp.)
Employment Discrimination
‘Cat’s Paw’ Theory Fails in Title VII Suit
An Iraqi maintenance technician at a condo complex loses his Title VII national-origin suit; an
Alexandria U.S. District Court says plaintiff’s “cat’s paw” theory of liability fails because he has
no evidence the condo board rubber-stamped a lower-level employee’s alleged discriminatory
intent.
Zanganah v. The Council of Co-Owners of Fountains Condominium Inc. (VLW 010-3-648) (23
pp.)
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