October 9, 2014

Employment retaliation: the high cost of revenge

Posted in Discrimination, National Origin, Race, Retaliation, Title VII of the Civil Rights Act of 1964 tagged , , , , , , at 7:40 pm by Tom Jacobson

Kinkead 10-10-14

While seeking revenge, dig two graves; one for yourself. Douglas Horton

Most laws granting rights to employees include anti-retaliation provisions intended to protect the employees who exercise those rights. Title VII of the Civil Rights Act of 1964 is no exception. Buffalo, MN based Izza Bending Tube & Wire and Wells Fargo & Co. recently learned that lesson the expensive way. That is, via costly settlements of EEOC employment retaliation charges.

Both cases were investigated by the Minneapolis, MN area office of the EEOC. In the Wells Fargo case, the EEOC determined that an employee reported to the company’s human resources department that she was being subjected to differential treatment based on her race and national origin. The agency also found that the employee’s supervisor told her not to speak Spanish during her non-duty time. Shortly after the employee’s report, the EEOC found, Wells Fargo disciplined and then terminated the employee for practices other employees regularly engaged in without discipline. This, the EEOC concluded, violated the employment retaliation provisions of Title VII.

To resolve the charge, Wells Fargo agreed to pay $295,000.00. The company also agreed to:

  • Conduct training on the laws prohibiting employment discrimination, with special emphasis on employment retaliation and English-only speaking requirements;
  • Distribute to all employees an annual e-mail affirming its commitment to diversity, multilingual ability and the use of languages other than English in the workplace;
  • Report to the EEOC all allegations of discrimination or employment retaliation annually for three years.

In the Izza case, the EEOC alleged that a manager first instructed an employee to not hire a black temporary worker for a permanent position and then told the employee to get rid of him because of his race. The EEOC further alleged that after the employee filed a discrimination charge with the EEOC, she was laid off and then terminated in retaliation. Izza settled the case by paying $45,000.00 and agreeing to train employees and report any retaliation complaints to the EEOC.

The main takeaway from these cases is that retaliating against employees who exercise their Title VII rights is by itself a violation of Title VII, and resolving those cases can be extremely expensive. The same holds true for employees who exercise their rights under the Minnesota Human Rights Act and many other employment laws. Moreover, preserving access to the justice system by fighting employment retaliation under Title VII is one of the EEOC’s 2013-2016 Strategic Enforcement Plan priorities. Therefore, employers would be wise to make prohibiting employment retaliation one of their HR priorities. Or, start digging.

For more information about this article, please contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2014 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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August 1, 2014

Another day, another Executive Order impacting federal contractors

Posted in Age, Alternative Dispute Resolution, Americans with Disabilities Act, Arbitration, Arbitration, Color, Creed, Disability, Discrimination, Fair Labor Standards Act, Family and Medical Leave Act (FMLA), Gender / Sex, Harassment, LGBT, Minnesota Human Rights Act, National Labor Relations Act, National Origin, Pregnancy, Race, Religion, Sexual Harassment tagged , , , at 11:23 am by Tom Jacobson

White HouseIn another attempt to flex his regulatory muscle, President Barack Obama on July 31, 2014 issued yet another Executive Order aimed at federal contractors. This one, the Fair Pay and Safe Workplaces Executive Order, requires potential federal contractors to disclose past employment and labor law violations before they can secure federal contracts.

Earlier this month, President Obama issued an Executive Order to protect the rights of LGBT employees of federal contractors (see President Issues Order to Protect LGBT Workers).

Yesterday’s Order requires most potential federal contractors to disclose violations in the past three years of thirteen specified federal labor and employment laws. These laws include the National Labor Relations Act, the Fair Labor Standards Act, the Family and Medical Leave Act, the Americans with Disabilities Act, the Occupational Safety and Health Act, the Age Discrimination in Employment Act and Title VII of the Civil Rights Act of 1964, and any state counterparts of these statutes.

The Order also directs employers with contracts of $1 million or more to “agree that the decision to arbitrate claims arising under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment may only be made with the voluntary consent of employees or independent contractors after such disputes arise.” In other words, the Order will severely limit these federal contractors’ rights to enter into pre-dispute arbitration agreements.

The Order appears to be directed at preventing repeat offenders, but it will have a major impact on employers who will need to overcome this new regulatory hurdle before securing federal contracts.

For more information about the President’s Order, see Obama Signs Executive Order Protecting Federal Contractors’ Employees (CBS News, 7/31/14), President Issues Order Requiring Contractors to Disclose Labor Law Violations When Competing for Federal Contracts (SHRM, 7/31/14), the President’s FACT SHEET: Fair Pay and Safe Workplaces Executive Order, or contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2014 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

August 28, 2013

Civil rights in Minnesota: setting the national agenda?

Posted in Age, Color, Commission Membership, Creed, Disability, Discrimination, Gender / Sex, Marital Status, Minnesota Human Rights Act, National Origin, Public Assistance, Race, Religion, Sexual Orientation tagged , , , , at 1:24 pm by Tom Jacobson

“judged … by the content of their character.” Dr. Martin Luther King, Jr.

It’s a cornerstone of our democracy that laws must change when they do not fit the needs of the majority. Today, the 50th anniversary of the March on Washington for Jobs and Freedom and Dr. Martin Luther King, Jr.’s iconic I Have a Dream speech, is the perfect opportunity to reflect on how there may be no better example of that principle than the ongoing struggle for civil rights for all Americans.

When it comes to civil rights, Minnesotans have historically been trend setters, not followers (see 150 Years of Civil Rights in Minnesota, Minnesota Department of Human Rights). For example, Minnesotans bravely fought and died in the 1863 Battle of Gettysburg, and efforts to protect the rights of  Jews and Native Americans date back to at least the 1930’s. Twenty years before Dr. King’s speech, Minnesota Governor Edward Thye created a commission to study discrimination and economic inequality. In 1946 Minneapolis Mayor Hubert H. Humphrey created the Mayor’s Commission on Human Rights, and two years later Minneapolis enacted the country’s first municipal fair employment law. The Minnesota State Act for Fair Employment Practices (which was the predecessor to the Minnesota Human Rights Act) pre-dated the federal Civil Rights Act of 1964 by nine years. When that state law was passed, the Minnesota Legislature declared:

[T]he public policy of this state is to foster the employment of all individuals in this state in accordance with their fullest capacities, regardless of their race, color, creed, religion, or national origin, and to safeguard their rights to obtain and hold employment without discrimination. Such discrimination threatens the rights and privileges of the inhabitants of this state and menaces the institutions and foundations of democracy.

Since its initial passage, the MHRA has of course been amended several times to add sex, marital status, status with regard to public assistance, membership or activity in a local commission, disability, sexual orientation, and age to its list of protected classifications. Some of those characteristics are now also protected by federal law,

In June I had the privilege of leading off a morning of presentations at the tenth annual West Central Minnesota Employment Law Update. To put things into perspective, I noted how the law is always playing “catch up.” That is, laws are passed in response to societal change. I suggested that if you want a glimpse into what our laws might look like in the future, pay attention to societal trends now. Let me take that a step further; to envision our nation’s future civil rights landscape, take a look at Minnesota today. But don’t look through rose-colored glasses, for much work still needs to be done to eliminate the vestiges of discrimination that continue to threaten the rights and privileges of the inhabitants of this state and nation and menace the institutions and foundations of democracy.

For more information about this article, please contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2013 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

November 9, 2012

January 16, 2013 Employment Law Update Announced

Posted in Acknowledgment, Age, Arrest records, At-will Employment, Background Checking, Color, Conviction Records, Criminal History, Disability, Disclaimers, Discrimination, Employee Handbooks, Facebook, Fair Labor Standards Act, Family and Medical Leave Act, Gender / Sex, Harassment, Hiring and Recruiting, Interactive Process, Leaves of Absence, National Labor Relations Act, National Origin, Posting Requirements, Posting Requrements, Protected Concerted Activity, Race, Reasonable Accommodation, Religion, Retaliation, Sexual Harassment, Sick Leave, Social Media, Social Media in the Workplace, Workplace Posters tagged , , , , at 10:28 am by Tom Jacobson

Need continuing education credits?  Want to keep up to date on the latest developments in employment law?  If so, here’s an opportunity for you.

I’ll be moderating Lorman’s Employment Law Update in Fargo, North Dakota on January 16, 2013. The day-long event has been approved for 6.5 hours of HRCI and CLE credit, 1.0 hour of HRPD credit, and 8.0 hours of CPE credit.

In interested, please contact me at taj@alexandriamnlaw.com, or click here for more information or to register.

I hope to see you in Fargo on January 13!

P.S. Don’t forget to ask me about a discount on the registration fee!

August 5, 2012

With Legitimate Business Reasons for Dismissal, Plaintiffs Can’t Always Get What They Want

Posted in At-will Employment, Color, Disability, Discrimination, Family and Medical Leave Act (FMLA), Gender / Sex, Legitimate business reason, Marital Status, National Origin, Pretext, Prima Facie Case, Race, Reduction in Force (RIF), Religion, Reprisal, Retaliation, Sexual Orientation, Termination for Cause, Wrongful Termination tagged , , , , , , , , , , , , , at 8:20 pm by Tom Jacobson

I’ve often advocated that regardless of whether an employment relationship is contractual (where the reasons and/or process for dismissal may be spelled out in an agreement) or at-will (where the employment can be ended with or without notice and with or without legal cause), the best practice is to have a legitimate business reason for discharging an employee. Three recent court decisions validate my point.

Let me set the stage by noting that in discrimination cases, the employee wants to prove that the employer’s actions were based on some unlawful discriminatory reason, such as age, race or gender.  The employer, of course, wants to prove that its decisions were based on entirely legitimate reasons. To balance these competing interests, the courts recognize a process that begins with the employee being required to present a legally-specified bare minimum of evidence suggesting that discrimination occurred. This is called the employee’s prima facie case. If the employee can do that, the burden shifts to the employer to present evidence that its actions were based on legitimate (non-discriminatory) business reasons. Once that’s done, the burden shifts back to the employee to present evidence that the employer’s stated reason is a pretext, which is basically a cover up for the true discriminatory motive. In legalese, this is referred to as the McDonnell-Douglas burden-shifting framework (named after the  United States Supreme Court’s 1973 decision in the case of McDonnell-Douglas v. Green).

The effectiveness of being able to establish a legitimate business reason played out recently in three separate cases. First, in Prody v. City of Anoka a former employee established a prima facie case of age discrimination under the federal Age Discrimination in Employment Act (ADEA) and the Minnesota Human Rights Act (MHRA). The employer then presented evidence that he was dismissed as a part of a reduction in force (RIF). Because the plaintiff could not establish pretext, the case was dismissed.

Next, in Bone v. G4 Youth Services, LLC the employee alleged age, race and Family and Medical Leave Act (FMLA) discrimination. As in the Prody case, the plaintiff was unable to show that the employer’s stated reasons for the discharge (failing to follow a directive, poor communication, losing the trust of employees, and refusing in general to accommodate employees’ requests) were a pretext for discrimination.

Finally, in Hilt v. St. Jude Medical S.C., Inc. the plaintiff claimed the employer fired her in violation of Minnesota’s Whistleblower Act. The employer presented evidence that the termination resulted from a RIF, and because the plaintiff could not establish that the RIF was a pretext, the court dismissed the case.

So, as these three cases illustrate, if you are an employee who feels you’ve been discriminated against, but your employer can demonstrate a legitimate business reason for its actions, You Can’t Always Get What You Want (thank you, Rolling Stones!).

What you need to know:  Regardless of the type of employment relationship, it is always an employer’s best practice to be able to rely on evidence to show that employment decisions are based on legitimate non-discriminatory reasons.

For more information about this article, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2012 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

January 12, 2012

Federal court reaffirms importance of harassment policies

Posted in Color, Disability, Discrimination, Employee Handbooks, Gender / Sex, Genetic Information, Harassment, Harassment, Marital Status, National Origin, Race, Religion, Sexual Harassment, Sexual Harassment, Sexual Orientation tagged , , , , , , , , , at 11:07 am by Tom Jacobson

I am often asked if employers must have a written policy prohibiting sexual and other forms of unlawful harassment. The short answer is no, for there is no statute, regulation or court decision mandating such policies. However, and it is a big however, implementing such policies is clearly the best practice. And, as reaffirmed by the United States Eighth Circuit Court of Appeals on January 11, 2012, having a written policy can be the key to successfully defending harassment charges.

The case is Crawford v. BNSF Railway Co. In this case, BNSF had a “zero tolerance” policy on workplace harassment. Among other things, the policy defined the prohibited conduct, instructed employees to report complaints through one of five channels (one of which was an anonymous employee hotline), explained that  allegations would be investigated “promptly, impartially, and confidentially,” included guidelines explaining the ranges of discipline BNSF might apply to offenders, and contained a provision prohibiting retaliation for reporting discrimination. BNSF also trained employees on how to report harassment.

In this case, five employees alleged that they were victims of unlawful harassment by their supervisor. Specifically, they claimed that their supervisor engaged in a long litany of inappropriate behaviors ranging from fondling and sexual comments to requests for sexual favors, mimicked sex acts, and racial slurs.

Eight months after the alleged harassment began, the employees filed discrimination charges with the Nebraska Equal Opportunity Commission (NEOC) and the Equal Employment Opportunity Commission (EEOC).  One of the employees then reported the harassment directly to BNSF. BNSF conducted an investigation, which included interviewing four of the plaintiffs. Within two days, BNSF placed the supervisor on administrative leave. After completing its investigation less than two weeks later, BNSF informed the supervisor that he was being terminated, and the supervisor then chose to resign.

The general rule in such cases is that an employer is liable for the unlawful harassment committed by its supervisors unless it can show that: (a) it exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (b) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm.

Noting the existence of BNSF’s zero tolerance policy and its swift action after receiving the employees’ complaint, the court concluded that BNSF had exercised reasonable care to prevent and correct promptly any sexually harassing behavior. Then, noting that the employees had not availed themselves of BNSF’s complaint procedure, the court also ruled that they had  unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. Accordingly, the court held that it was appropriate to dismiss the employees’ claims. Importantly, the court stressed that “‘distribution of a valid antiharassment policy provides compelling proof’ that an employer exercised reasonable care to prevent and correct promptly harassing behavior.

Thus, the Crawford v BNSF case clearly illustrates that the best practice for employers is to implement and distribute harassment policies, for without them, employers will find it extremely difficult, if not impossible, to defend claims on the basis that they exercised reasonable care to prevent and correct promptly harassment.

For more information about this article, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2011 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

July 7, 2011

Mean guys finish last: temperament as a job qualification

Posted in Color, Discrimination, Interviewing, National Origin, Race tagged , , , , , , , , , , , at 9:10 am by Tom Jacobson

Bad temperament during the application process can be used as the reason to reject a candidate, according to the United States Court of Appeals for the Eighth Circuit.

Last August I commented the case of Amini v. City of Minneapolis.  The case centers around Hamid Amini, who was a police officer candidate at the Minneapolis Police Department.  The hiring process at the MPD included oral and written examinations, fitness and psychological testing, background checks, and interviews.  During an interview, Amini became agitated, argumentative, frustrated, and demanding.   Because of its concerns over Amini’s temperament, the city did not hire him.

Amini sued the city under Title VII of the Civil Rights Act of 1964, claiming that he was discriminated against on the basis of his national origin, race, and color.  He also claimed race discrimination under 42 U.S.C. Section 1981.

Last summer, the United States District Court for the District of Minnesota, Judge Donovan W. Frank presiding,  dismissed Amini’s lawsuit.  Judge Frank held that while Amini may have been minimally qualified for the job, the city’s reason for rejecting him (his apparent bad temperament) was a legitimate non-discriminatory reason.  Judge Frank also rejected Amini’s argument that the city’s reason was a pretext for discrimination.

Amini appealed his case to the Eighth Circuit Court of Appeals, and in a July 5, 2011 decision authored by Circuit Judge Roger Wollman, the appellate court affirmed Judge Frank’s decision.

While the Amini case reinforces the principle that an employee’s or applicant’s temperament can be considered when making decisions about that person’s employment, personality traits should be considered with great caution.  Such traits tend to be subjective and are difficult to prove.  Indeed, Judge Wollman cautioned against the use of subjective criteria because they can be easily fabricated.  And, what might be an important personality trait in one job might be irrelevant in another.  Without solid evidence, relying on temperament may not be a good defense to a discrimination claim.  However, in situations where candidates’ objective qualifications are comparable, the mere use of subjective criteria, such as temperament, does not create an inference of discrimination.

For more information about this post, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2011 Swenson Lervick Syverson Trosvig Jacobson, PA

August 10, 2010

Angry applicants & cranky candidates: Can temperament be a job qualification?

Posted in Color, Discrimination, Interviewing, National Origin, Race tagged , , , , , , , , , at 11:22 pm by Tom Jacobson

If an applicant who is minimally qualified for a job becomes agitated or otherwise shows bad temperament during the application process, can those personality traits be used as the reason to reject the candidate?  Consider the July 28, 2010 case of Amini v. City of Minneapolis.

Hamid Amini was a police officer candidate at the Minneapolis Police Department.  The hiring process at the MPD included oral and written examinations, fitness and psychological testing,  background checks, and interviews.  During an interview, Amini became agitated, argumentative, frustrated, and demanding.   Because of its concerns over Amini’s temperament, the City did not hire him.

Amini sued the city under Title VII of the Civil Rights Act of 1964, claiming that he was discriminated against on the basis of his national origin, race, and color.  He also claimed race discrimination under 42 U.S.C. Section 1981.

The United States District Court for the District of Minnesota, Judge Donovan W. Frank presiding,  dismissed Amini’s lawsuit.  Judge Frank held that while Amini may have been minimally qualified for the job, the city’s reason for rejecting him (his apparent bad temperament) was a legitimate non-discriminatory reason.  Judge Frank also rejected Amini’s argument that the city’s reason was a pretext for discrimination.

While the Amini case reinforces the principle that an employee’s or applicant’s temperamant can be considered when making decisions about that person’s employment, personality traits should be considered with great caution.  Such traits tend to be subjective and are difficult to prove.  And, what might be an important personality trait in one job might be irrelevant in another.  Without solid evidence, relying on temperament may not be a good defense to a discrimination claim.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

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