Southwest Florida Employment Law Blog : Southwest Florida Employment and Labor Lawyers & Attorneys for Discrimination Lawsuits and Civil Rights Cases in Fort Myers, Bonita Springs & Sanibel FL

Yesterday, the Equal Employment Opportunity Commission announced it received 99,412 private sector workplace discrimination charges during the 2012 fiscal year.  In its  press release , the EEOC noted that while the number of charges is down slightly from last year, it recovered $365.4 million dollars for employees, the "largest amount of monetary recovery" through its administrative process.

(Side note:  I'm not sure how that's the "largest" recovery, if EEOC recovered $404 million in 2010, but then again I'm no math major....).

For the third year in a row, retaliation claims were the most frequently filed claim (38.1%), followed by race (33.7%), sex (30.5%), and disability (26.5%).  There was a jump in sex and disability claims over last year. 

A stat I found particularly interesting is that although the EEOC reduced the pending inventory of charges by 10% from the 2011 fiscal year, it still has over 70,000 cases in queue.  So, for those of you who feel like you've been waiting for-ev-er for a determination, don't worry -- you're clearly not alone!

What does this mean for employers?  Be extra extra careful not to take any action that remotely resembles retaliation!  I know we say this every chance we get, but it's SO important, and these statistics prove it.  Remember, even if the employee does not have a valid underlying claim, he/she can have a valid retaliation claim if take adverse action after you learn of the employee's discrimination or harassment complaint. Don't be a statistic!

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Tis election season! And it is impossible to ignore the political debate that is unfolding in the media, on social networks, and in everyday conversation. Can and should employers restrict political discussion in the workplace? It depends.

Private employers enjoy wide latitude in determining whether and how to regulate employees' expression of their political views in the workplace. Contrary to popular belief, employees in the private sector do not have a First Amendment right to discuss politics in the workplace. The Constitution applies only to governmental censorship of speech. 

Generally, an employer's goal is to keep employees comfortable and focused on work. After all, employees are paid to do a job, not campaign. Heated political debate or solicitation in the workplace is likely to have a negative effect on morale and productivity. But, political debate in the workplace may also expose an employer to liability. When co-workers discuss politics, employer may be exposed to claims of discrimination, retaliation or hostile work environment. After all, political views are often intertwined with an individual's beliefs on hot button topics such as sex, religion, national origin, age, and disability. Consider how a co-worker's unwelcome comment about a candidate's age or religion might lead to a hostile work environment claim. Or, how a supervisor's discipline of an employee for insubordination after an intense debate over a candidate's pro life politics could expose an employer to a claim of retaliation.

Most employer do not have a formal policy governing political speech in the workplace. However, non-solicitation policies may be applicable to some forms of political speech. And, policies governing computer usage may be utilized to restrict employees using the e-mail system or accessing the internet for political purposes.

Some freedom of expression in the workplace is a good thing. However, employers should be aware of the hazards of political speech in the workplace. Expression of political beliefs may interfere with workplace efficiency, cause workplace disruption and even lead to claims of discrimination, retaliation, and harassment.

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For Part Two of my "EEOC Came Knocking" series (click here for Part One), I thought I'd offer some tips on how to present an effective position statement as part of your response to an EEOC charge.  A solid position statement is critical to the employer's defense of an EEOC charge.  It is the company's opportunity to tell the its side of the story, point out relevant case law, and hopefully convince the EEOC investigatorit didn't discriminate against or harass the charging party.

There are many different ways you can set up a position statement -- there really is no one "right" way to do it.  Sometimes an attorney will prepare the entire position statement.  Other times, HR or another executive will prepare it.  Often, it's combination of the two.  Irrespective of how you choose to do it, this list includes things I believe are important to include in any position statement.

1.  Start with an explicit denial.  This can be just a few sentences, but I recommend starting with a strong opening statement explicitly denying the company discriminated and/or harassed (whatever the charge may be) the charging party.

2.  Don't forget the small details.  Explain the nature of the company's business.  Likewise, explain the charging party's job (job duties, employment history, reporting channels, etc), and how that job fits into the company's bigger picture.  Remember, while you know everything about the company and its business, the EEOC investigator probably has no idea.  These details can be critical to the overall story.

3.  Explain your EEO policies and procedures.  You will likely be asked to produce a copy of your policy manual in the Request for Information, but make sure you take a few sentences in the position statement to explain the policies and how they are enforced.  Explain how employees become aware of the policies and complaint procedures.  Include a copy of the charging party's signed acknowledgement, confirming he/she has received, read, and understood the policy manual.  (Side note:  Don't use acknowledgement forms?  Start immediately!)  If the employee did not follow reporting procedures, make sure to mention that. 

4.  Explain the employment decision.  Identify facts and circumstances that gave rise to the allegedly adverse employment action.  If the charging party was terminated for excessive absenteeism, explain not only the absences, but how the absences affected the company and why they weren't acceptable.  If the charging party has prior disciplinary action, explain it.  Make sure you include all supporting documentation.

5.  Address comparators/similarly situated employees.  If the charging party specifies other employees who were allegedly similarly situated and treated better, discredit that contention.  The standard for "similarly situated" is quite high -- show why the employees are not, in fact, similarly situated with the charging party.  Did the charging party violate a rule three times, while the comparator violated it once?  Has the comparator been successfully employed by the company for 25 years, while the charging party was only employed for one year?  If the situations are dissimilar in any way, make sure you point it out.

6.  Affirmatively show non-discrimination, if possible. For example, in a pregnancy discrimination case, if another female employee has been pregnant, given birth, and successfully returned to work under the same supervisor, reference it.  In an age discrimination case, if you can show that other employees who are the same age or older than the charging party work under the same manager without issue, that needs to go in your position statement.  Though you likely won't be able to do this in every case, when you can, don't miss the opportunity to include what could be a critical part of the employer's defense.

7.  Consider other possible defenses.  You should consider whether you can use defenses such as timeliness, constructive discharge, same actor inference, offers of reinstatement, or after acquired evidence.  This is one area in particular where assistance of counsel is key -- employment lawyers are trained to spot and properly apply these defenses. 

8.  Review other proceedings involving the charging party.  Has the charging party filed a claim for unemployment?  Workers' compensation?  An unfair labor practice claim?  If so, make sure you review as many of those details as you can, and check to see if the charging party has taken inconsistent positions.  If he/she has, include this in the position statement.

9.  Decision-maker review.  Make sure the decision-makers review the charge and confirm the position statement's completeness and accuracy.  Remember, they could be confronted with the details if the case proceeds past the administrative stage and into litigation.

10.  Position statement becomes a public record.  Keep this in mind.  Not only does it become a public record, it is discoverable, and could be used in subsequent litigation.

Bonus.  Counsel review.  This is quite possibly the most important step (of course, coming from the lawyer!).  If you already have counsel preparing the position statement, you are covered here.  If, however, you decide to prepare the position statement yourself, I recommend, at the very least, having counsel review the position statement before it goes out.  Counsel can add strong legal arguments and defenses, and can just generally confirm that the position statement is legally sound before you file it.  Remember, once you file it, you can't get it back!

I hope these tips are helpful for those of you faced with responding to an EEOC charge.  Though the position statement is just one part of the overall response, it is, perhaps, the most critical.  Take care to ensure it is done properly, so you know you're presenting the very best defense possible for your company.

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Last week, I spoke at the Florida Public Human Resources Association's Annual Conference at the Waldorf Astoria in Naples, Florida.  For the first of my two sessions, I was asked to present on EEOC charges which, as you all probably know, is a pretty timely topic given some of the recent record statistics (almost 100,000 charges filed in 2011 alone!).

If your company has not received an EEOC charge recently, consider yourself lucky.  Since I know so many of you have dealt with or will deal with EEOC charges, I thought I would post some tips on how to respond from last week's presentation.  In Part One, I will review the basics of what you should do when you receive the charge.  Next week, in Part Two, I'll offer some tips on how to prepare an effective position statement. 

Side note:  Though the focus of this post is on EEOC charges, the same basics apply to charges filed with the Florida Commission on Human Relations (FCHR).

First up:  The EEOC Came Knocking:  What Should I Do?!

1.  Do not ignore the charge.  Don't laugh -- I have seen this happen!  The charge will not go away if you ignore it.  The EEOC will move on and investigate anyway, with only the employee's side of the story in the file. 

2.  Notify your Employment Practices Liability (EPL) carrier.  This is an extremely important step.  Do this in writing, so you have a record of the notification.  Not sure whether you have EPL coverage (Hint:  it's that coverage with the giant deductible!)?  Call your agent.  Better safe than sorry.

3.  Contact counsel.  While you are not required to have representation at this stage in the process, having the assistance of qualified employment counsel can make a huge difference.  If cost is an issue, prepare the bulk of the response yourself, but make sure you have counsel review it before it is submitted.  There are often critical legal defenses, arguments, etc. that should be raised, and lawyers are trained to spot these items. 

4.  Determine and calendar deadlines.  You will typically have several weeks to submit your response.  If you need additional time to prepare a thorough response, ask for an extension.  The EEOC is usually pretty generous with extensions, as long as the request is reasonable.

5.  Check to see if the charge is timely.  Remember, in Florida, the charge must be filed with the EEOC within 300 days of the alleged discriminatory act.  If the charge is filed with the FCHR, the charging party must file within 365 days.

6.  Notify affected managers/decision-makers.  Identify those managers/decision-makers who were directly involved with the allegations in the charge.  Let them know the company received a charge, and he/she will be called upon for information.  Limit this to those managers/decision-makers who are actually involved -- don't make a company-wide announcement.  See #7 and 9 for additional info on manager/decision-makers.

7.  Assemble and preserve documents.  Gather critical documents, like personnel files for the charging party and any alleged comparators, disciplinary documents, etc.  Make sure you instruct managers, decision-makers, IT personnel, or anyone else who may have relevant documents, including emails, to preserve them -- the last thing you want is to have to explain missing or, worse, destroyed, evidence.

8.  Plan internal investigation.  This could take up an entire blog post in itself.  Perhaps the most important advice I can give you is to do it quickly.  The sooner you investigate, the better, especially if the charge was the first notice you have of the alleged discriminatory action.   Assistance of counsel can be critical during an investigation.

9.  Prevent retaliation.  If the charging party is still employed, make sure he/she is not retaliated against in any way.  Remember, even if the underlying claim of discrimination or harassment has no merit, if you take adverse action against the charging party because he/she has filed a charge, you can hand him/her a valid retaliation claim.  This doesn't mean the employee now has immunity from disciplinary action or even termination, but you should take special care in these situations.  Even if the adverse action was not because of the charge, be mindful that the timing can look pretty suspect.  This is an important reason to be cautious with how many managers/decision-makers you notify about the charge.  Though it's not an iron clad defense, if the charging party's immediate supervisor does not know about the charge (protected activity), the employee may not be able to show a causal connection between the charge and any adverse employment action he/she suffers after filing the charge.  Keeping information limited to those who truly need-to-know is critical, particularly when the charging party is still employed.

10.  Consider mediation.  In most EEOC charges, the EEOC will offer pre-investigation mediation.  Like investigations, this could take up an entire post in itself.  Briefly, there are many pros to mediation.  It can be speedy, cost-effective, and, if settled, gives you certainty with respect to resolution of the charge.  Though not all cases are well-suited for mediation, I tend to recommend it in the majority of charges.  Legal counsel can help you evaluate whether mediation is an attractive option for your particular charge. 

There you have it -- a few basic tips on what to do when you receive an EEOC charge.  Check back next week for tips on how to prepare an effective position statement. 

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For years, college admissions officers were on safe ground when considering race as a factor in their admissions programs to promote class diversity. This may change now that the Supreme Court has agreed to consider Fisher v. The University of Texas at Austin. In Fisher, Plaintiff Abigail Fisher argues she was rejected by the school, not because of her grades or test scores, but because she is white.

In April 2003 the Court had seemingly resolved the issue in Grutter v. Bollinger. In that opinion, Justice Sandra Day O'Connor, writing for the majority, found that the University of Michigan Law School's compelling interest in promoting class diversity justified a race-conscious admissions process, and not an unconstitutional race-based quota system. The decision, however, left open the possibility that such programs might be unnecessary in 25 years. While universities around the country may have relied upon this decision in implementing their own affirmative action programs, the quarter century timetable may have been accelerated when Chief Justice John Roberts wrote in an opinion striking down affirmative action programs in public high schools. In Parents Involved in Community Schools v. Seattle School District No. 1, the Chief Justice opined that "[t]he way to stop discrimination on the basis of race is stop discriminating on the basis of race." Affirmative action proponents are concerned that the Court's more conservative make up signals an end to affirmative action and the ability to promote diversity. Critics welcome the opportunity to remove race from the admissions process.

The Court's newest Justice, Elena Kagan, will not participate in the review due to her prior involvement in the case while serving as U.S. Solicitor General. The Court is scheduled to consider the case in October, just before the 2012 elections.

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Title VII, and comparable state laws, like the Florida Civil Rights Act, prohibit employer actions that have the purpose or effect of discriminating against persons because of their national origin. It is no secret that U.S. work forces are becoming increasingly more diverse. In response to the increased linguistic diversity of the workforce, many employers have implemented policies that limit or completely prohibit their employees from speaking languages other than English while at work, or take action against employees because of their foreign accent. Employers must do so with great caution and deliberation - such practices may violate the national origin protections of Title VII.

Is an English-Only Policy a Business Necessity?

The EEOC and the courts will likely look at English-only policies with skepticism, and will require the employer to justify the policy by showing that it was a "business necessity." Generally speaking, the policy should be narrowly-tailored to address specific concerns. For instance, requiring hospital healthcare workers to speak English around patients due to safety concerns is likely reasonable, but requiring that they speak English at all times, including at lunch and/or in break-room conversations, is typically unlawful.

What about accent discrimination?

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Earlier this month, the United States Supreme Court issued a unanimous opinion expressly recognizing "a ministerial exception," which bars "ministers" employed by faith based employers from suing for discrimination. In Hosanna-Tabor Church v. EEOC, the Supreme Court considered the case of Cheryl Perich, an elementary teacher at a Church School. Although Perich was also a commissioned minister, the vast majority of her working time was devoted to teaching secular subjects. Perich took a six-month leave of absence from work after being diagnosed with narcolepsy. When she attempted to return to work, she was informed by her principal that the school already hired a lay teacher to fill her position. The school asked Perich to resign. She refused to quit, stating that she intended to pursue her legal rights. The Church School fired Perich for insubordination, disruptive behavior, and threatening to take legal action against the school. The EEOC sued on Perich's behalf, claiming Perich's discharge constituted unlawful retaliation under the Americans with Disabilities Act.

The Supreme Court held Perich's suit was barred by the "ministerial exception" created by the First Amendment religion clauses. The Court recognized the "ministerial exception" because "requiring a church to accept or retain an unwanted minister or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governments of the church." The Court did not decide whether the ministerial exception bars other types of employee suits, such as actions for breach of contract or torts.

The Hosanna-Tabor decision grants churches and other religious entities broad discretion in making decisions concerning the employment of their "ministers." Still, employers should still be cautious when making these types of employment decisions, even if the employer believes it will be shielded by the ministerial exemption. Remember, just because you think you have the "right" to do something, does not mean you should do it.

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Unless you've been living under a rock this week, those in the employment law/human resources field have inevitably heard about the U.S. Supreme Court's decision in the Wal-Mart v. Dukes case.  The decision, which was handed down Monday, reversed the Ninth Circuit's certification of a class of approximately 1.5 million female employees claiming gender-based pay/promotion discrimination.  Since I'm a couple of days behind the curve (I haven't been under a rock, just busy!), and since so much has already been written about this decision, instead of reinventing the wheel I decided to highlight points from a few of my favorite posts on the issue.

In Wal-Mart v. Dukes:  What the Class-Action Decision Really Means for Employers, Dan Schwartz of the newly-revamped Connecticut Employment Law Blog gives an easy-to-understand analysis of how the decision may impact employers.  In a nutshell, Dan believes the decision stands for the proposition that a "mega-class action" will have difficulty proceeding absent a very specific and tangible policy or practice of discriminating against a particular class of workers.  He also gives a couple helpful pointers.  I couldn't agree more with his first "takeaway" -- if your company's policies and enforcement mechanisms aren't in top notch shape, fix them now! 

Charles C. Warner of Porter Wright's Employer Law Report gives a very thorough review and legal analysis of the decision in Wal-Mart v. Dukes:  Supreme Court Rejects "Expansive" Gender Bias Class Action in Absence of "General Policy of Discrimination."  For those of you interested in the details of the case, including its history, procedural posture, and each side's arguments, this is the post for you.

In The 7 Key Points for Employers from the Supreme Court's Wal-Mart v. Dukes Opinion, Jon Hyman of the Ohio Employer's Law Blog gives a great breakdown of important points employers should take away from the decision.  I particularly like the way he sums it up:  "Dukes means that corporate America can exhale a huge sigh of relief--a Court that has been surprisingly employee-friendly saved its biggest decision to flex its pro-business muscles."  Jon is right--this decision was a clear win for employers in a climate where employee-friendly laws and rulings are all the rage.  Even better than this quote, though, is the follow up Jon did today in the brilliantly-titled Wal-Mart v. Dukes Does Not Equal Barefoot and Pregnant.

How can you not click through to a post with that title?  In response to what some are basically calling an assault on women's rights, Jon explains,

There is no doubt that by limiting class actions, Wal-Mart was a big win for businesses. But let’s not confuse what Wal-Mart is for what it is not. It is not a death blow to women’s rights in the workplace. It will not eliminate all of the good that Title VII has done for women (and its other protected classes). It will not take us back in time to the days of June Cleaver and Harriet Nelson.

He's right (again).  I'm a woman, and I don't take offense to this decision at all (yes, yes -- I am a management-side employment lawyer, but I am still a woman, you know!).  The Supreme Court simply isn't going to allow over-zealous plaintiff lawyers to lump literally millions of people together in one action and allow them to recover damages without having to prove their own individual set of facts and damages.  Nothing in Dukes will prevent women from bringing actions for gender discrimination, and it doesn't stifle or set "us" back in any way.  Let's not get caught up in dramatics and lose sight of what the decision is versus what it is not.  To quote Jon yet again, "Such knee-jerk overreactions unnecessarily polarize us into positions that do nothing to further the debate over the real issue—eliminating workplace discrimination."

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The final regulations implementing the Americans with Disabilities Act Amendments Act ("ADAAA") are effective today, May 24, 2011.  As you probably know, the new regulations highlight the ADAAA's broader definition of disability.  This means more individuals with be considered disabled, thus qualifying for protection under the ADA.  The focus now will likely be on the accommodation process, instead of whether someone qualifies as disabled under the regulations.

Vicki Sproat of our office prepared a newsletter highlighting important parts of the new regulations, which we e-blasted to our subscribers last month.  If you missed it, you can download a copy here.

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Yesterday, Rep. Barney Frank (D-Mass) re-introduced the Employment Nondiscrimination Act ("ENDA") in the U.S. House of Representatives.  As you may recall, the ENDA would prohibit discrimination in employment based on an applicant's or employee's sexual orientation or gender identity.  If passed, the ENDA would create an additional protected class of employees.  Many states already have similar laws, but Florida is not one of them.

The ENDA, along with several other proposed bills, was big news back when President Obama first took office, as most experts expected the democratically-controlled Congress to institute sweeping employment law changes.  You can view one of our old newsletters on this topic here.

Fast-forward a couple of years, and Congress' landscape has already changed.  Though the ENDA has been a major priority for civil rights groups for years, and though some reports have public support of the ENDA listed as high as 90%, with Republicans in control of the House the bill isn't likely to garner much attention or support at this time.  Still, we will keep an eye on it and let you know if it does pass.  

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Yesterday, the Equal Employment Opportunity Commission announced that a record number of private sector workplace discrimination charges were filed with the agency in its fiscal year 2010.  In its press release, the EEOC noted that 99,922 charges were filed, calling this figure an  "unprecedented level" of discrimination charges.  The statistics show the EEOC, through its combined enforcement, mediation, and litigation programs, secured more than $404 million in monetary benefits from employers. 

All major categories of charge filings increased last year.  Interestingly, but not surprisingly, retaliation charges surpassed race as the most frequently filed charge.  The EEOC also received 201 charges under the Genetic Information Nondiscrimination Act in its first year of enforcement.

In the press release, EEOC Chair Jacqueline A. Berrian stated:  "Discrimination continues to be a substantial problem for too many job seekers and workers, and we must continue to build our capacity to enforce the laws that ensure that workplaces are free of unlawful bias." 

What does this mean for employers?  Ms. Berrian's statement confirms the EEOC's commitment to step up its enforcement of anti-discrimination laws.  Employers should expect the upward trend in charge filings to continue, perhaps at an even more rapid pace.  The spike in retaliation claims should be a big warning light for employers -- you MUST take special caution when handling employees who have previously complained of discrimination, harassment, or other related workplace claims.  Even if the employee does not have a valid underlying claim, the employer can serve up a retaliation claim on a silver platter if not careful.

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The U.S. Equal Employment Opportunity Commission ("EEOC") announced the filing of three new disability discrimination cases in a recent press release.  These cases, which were filed under the ADA Amendments Act of 2008 ("ADAAA"), allege discrimination against qualified individuals with diabetes, cancer, and severe arthritis.

 You should recall that the ADA was amended by the ADAAA, effective January 1, 2009.  The ADAAA clarified and expanded the definition of "disability," making it easier for people with disabilities to qualify for protection under the ADA.  I wrote a brief newsletter article in October 2008 detailing some of the changes, which you can download here. 

The new cases are among the first filed by the EEOC under the ADAAA, but employers can rest assured they will not be the last.  According to EEOC Chair Jacqueline Berrien, the EEOC wants to send a "clear message that the Commission will vigorously enforce the ADA."  The EEOC's general counsel further cautions, "Individuals with disabilities -- including serious medical conditions such as cancer, diabetes, and severe arthritis -- must be evaluated according to their qualifications, and not their disabilities."

Employers and HR professionals should take special care to ensure they fully understand the scope and breadth of the ADAAA.  If you have any doubts or questions about the definition of diability, reasonable accommodations, or anything related to the ADAAA, the best time to act is NOW -- do not wait until the EEOC comes knocking.

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The Department of Labor recently debuted its Disability Nondiscrimination Law Advisor, an online tool intended to help employers determine which federal disability nondiscrimination laws apply to their organization, and their responsibilities under each law.  Employers answer a series of questions about their business, then the Advisor generates a list of applicable disability nondiscrimination laws.  The Advisor also includes a "Guide to Employing People with Disabilities," which outlines resources available to help employers comply with disability nondiscrimination laws.

While it is important to note that the Advisor does not address all federal disability nondiscrimination laws, it does address many of the major federal laws, including:

• Title I of the Americans with Disabilities Act of 1990 (ADA)
• Title II, Subtitle A, of the Americans with Disabilities Act of 1990 (ADA)
• Section 188 of the Workforce Investment Act of 1998
• Section 504 of the Rehabilitation Act of 1973, as amended (only as it pertains to federal financial assistance)
• Section 503 of the Rehabilitation Act of 1973, as amended
• The Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended

We encourage our clients to use the Advisor as a helpful guide and good starting point for understanding these laws.  The Advisor is not, however, a substitute for legal advice on all federal, state, and/or local disability nondiscrimination laws.  Employers should consult counsel with any specific questions.

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