Shaw Valenza's Employment Law Pot Pourri / Quick Takes

Here are some quick takes to catch you up on a bunch of recent developments.

Rounding Time to the Quarter Hour

The Ninth Circuit upheld a neutral policy under which an employer rounded time to the nearest quarter-hour.

The time clock system would automatically round back for 7 minutes or less of time worked in the 15-minute period, and would round ahead for 8 or more minutes.  The rounding mechanism was not allowed to be edited by managers.

On that basis, the Court held that the rounding system was neutral on its face.  And as applied to the plaintiff, he lost just $15.00 in pay over the 13 months of punches that he made.  That's how neutral rounding is supposed to pan out.

The Court found that this practice was lawful under both the federal Fair Labor Standards Act and the  California Labor Code.  The case is Corbin v. Time Warner Entertainment etc. and the opinion is here.

California Fair Employment Agency to Revise Gender Regulations

The FEHC is beginning the process of revising its regulations regarding gender identity.   You can read the proposed revisions here.  The proposed additions include a new provision on bathroom / locker facilities:

(A) Employers shall permit employees to use facilities that correspond to the employee’s gender identity or gender expression, regardless of the employee’s assigned sex at birth.

(B) To balance the privacy interests of all employees, employers shall provide alternatives if no individual facility is available, such as, locking toilet stalls, staggered schedules for showering, shower curtains, or other method of ensuring privacy. However, an employer or other covered entity may not require an employee to use a particular facility.

(C) Transitioning employees shall not be required to undergo, or provide proof of, any particular medical treatment to use facilities designated for use by a particular gender.

(D) Employers and other covered entities with single-occupancy facilities under their control shall use gender-neutral signage for those facilities, such as “Restroom,” “Unisex,” “Gender Neutral,” “All Gender Restroom,” etc.

There also is a proposed regulation regarding pronouns and names:

(h) Recording of Gender and Name

(1) It is unlawful to require an applicant or employee to state whether the individual is transgender.

(2) If a job application form requires an individual to identify as male or female, designation by the applicant of a gender that is inconsistent with the applicant’s assigned sex at birth or presumed gender shall not be considered fraudulent or a misrepresentation for the purpose of adverse action based on the applicant’s designation.

(3) If an employee requests to be identified with a preferred gender, name, and/or pronoun, an employer or other covered entity who fails to abide by the employee’s stated preference may be liable under the Act, except as noted in subdivision (4) below.

(4) An employer may use an employee’s gender or legal name as indicated in a government-issued identification document only if it is necessary to meet a legally- mandated obligation.

Here's a proposal about dress and grooming standards:

(g) Physical Appearance, Grooming, and Dress Standards. It is lawful for an employer or other covered entity to impose upon an applicant or employee physical appearance, grooming or dress standards that serve a legitimate business purpose, so long as any such standard does not discriminate based on an individual’s sex, including gender, gender identity, or gender expression.

However, if such a standard discriminates on the basis of sex and if it also significantly burdens the individual in his or her employment, it is unlawful.  It is unlawful to require individuals to dress or groom themselves in a manner inconsistent with their gender identity or gender expression.

And, finally, something about requiring proof of gender identity:

(1) It is unlawful for employers and other covered entities to inquire or require documentation or proof of an individual’s sex, gender, gender identity, or gender expression as a condition of employment, unless the employer or other covered entity meets its burden of proving a BFOQ defense, as defined above, or the employee initiates communication with the employer regarding any requested adjustment to the employee’s working conditions. 

Attorney's Fees for Prevailing Employers Under Federal Anti-Discrimination Law?

The U.S. Supreme Court decided - 8-0 - that a prevailing defendant in a Title VII discrimination case (and that means ADA, ADEA and section 1988, too), may recover attorney's fees without winning "on the merits."  That means, for example, if a plaintiff insists on bringing a frivolous case that is obviously barred by the statute of limitations, the employer can apply for attorney's fees even though the statute of limitations defense is not proof of non-discrimination.  As Justice Thomas already points out, the defense already has to establish that the plaintiff's case was 'frivolous, unreasonable or groundless" because of an earlier Supreme Court case (that invented that standard).  So requiring a win "on the merits" would have been a whole new burden and the Court wasn't having it.  So, the EEOC owes CRST at least $4 million for its frivolous pursuit of CRST if that ruling holds up on remand.  Wet blanket moment: Where will the EEOC get the money to pay those fees?  Oh. Right.  Us.

That case is CRST Van Expedited, Inc. v. EEOC and the opinion is here.

Statute of Limitations for Constructive Discharge Under Federal Law

The U.S. Supreme Court in an 7-1 decision decided that a "constructive discharge" or forced resignation claim is considered timely or untimely based on the date that the employee gives notice of resignation.

The Post Office in Green v. Brennan, opinion here, argued that the limitations clock begins to run when the employer performs the "last discriminatory act."  But the Court disagreed and reversed the Tenth Circuit:

Ordinarily, a “ ‘limitations period commences when the plaintiff has a complete and present cause of action.’” Ibid. “[A] cause of action does not become ‘complete and present’ for limitations purposes until the plaintiff can file suit and obtain relief.” Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U. S. 192, 201 (1997).

 Applying this general rule to the case before it, the Court ruled:

the “matter alleged to be discriminatory” in a constructive-discharge claim necessarily includes the employee’s resignation for three reasons. First, in the context of a constructive-discharge claim, a resignation is part of the “complete and present cause of action” necessary before a limitations period ordinarily begins to run. Second, nothing in the regulation creating the limitations period here, §1614.105, clearly indicates an intent to displace this standard rule. Third, practical considerations confirm the merit of applying the standard rule here.

Of note, the Court made clear that the limitations period begins to run when the employee gives notice of the resignation, not on the date of the resignation.

Court of Appeal Affirms Summary Judgment on Sexual Harassment Claim and More

The Court of Appeal's decision in McCoy v. Pacific Maritime Association covers a lot of ground.  The opinion contains analysis of a variety of issues important for pre-trial and trial lawyers alike.

Here are the main issues -

1. The plaintiff's allegations of hostile work environment harassment and intentional infliction of emotional distress were not severe / pervasive / extreme / outrageous enough to reach the jury.  The plaintiff's claim is summarized here:

Appellant testified that she was harassed and shunned throughout her training period. Her complaints centered around one vessel planner in particular, Anthony Spanjol. Appellant testified that Spanjol would disrespect her by talking down to her and by putting his feet up on her work space. On one occasion, he yelled at her in front of other employees and called her stupid. One of appellant‟s supervisors, Marc Izzo, witnessed this incident, but left the room rather than address it. Appellant testified that when she complained about the incident she was told that she should go home and that Spanjol‟s behavior was just a part of his personality. She also stated that Spanjol often made racially derogatory remarks and engaged in sexually offensive behavior. He would comment on the buttocks of other female employees once they left the room, using terms like "„nigger ass‟" and "„J-Lo ass.‟" On at least one occasion, Spanjol also made crude gestures toward a woman when the woman‟s back was turned. He also mocked these women in appellant‟s presence. During another incident, appellant asked Spanjol a question regarding the unloading of a ship, but he ignored her and "never spoke to [her] again." Appellant testified that shortly after this incident she decided she could no longer handle the work environment and quit her job entirely.

The court held that the harassment was not severe or pervasive enough to require a jury's consideration. The court also held that the allegations of co-worker harassment were not actionable because the plaintiff did not prove that her employer knew or should have known of the conduct directed toward her.

2.  The court held that the trial court properly excluded evidence of harassment of other women because the only claim tried was retaliation.

3.   "Me-too" evidence of retaliation against other women should have been admitted.

4.   The plaintiff claimed denial of promotion based on retaliation. The court held she was entitled to damages if she prevailed even if she did not prove constructive discharge. The amount of those damages would have to be limited to what she actually lost (the difference between her pay and the pay if she had been promoted).  I don't understand how she would be entitled to that differential after she quit if it's not a constructive discharge.  If you voluntarily quit, you no longer receive pay...  I know, there I go thinking again.

5.   The court held that PMA, an association that negotiated collective bargaining agreements, was not the plaintiff's employer, and therefore could not be held liable for retaliation or other FEHA based actions.

So, lots of reasons to cite this case.  It's long, but worth reading.  The opinion in McCoy v. Pacific Maritime Association is here.

DGV
 

9th Circuit Sets Low Bar on Employer Liability for Employees' Conduct

Poland was with the Customs Service in Denver. Hillberry was his supervisor. Hillberry demonstrated some anti-age animus towards Poland. Poland at some point filed a charge of discrimination. Later, Hillberry requested an administrative review of Poland's management of subordinates. The reviewers found that Poland engaged in unprofessional conduct as a manager. As a result, Poland was demoted to a non-supervisory job and transferred to Vienna Virginia.
Poland accepted the transfer, but retired 3 years before the mandatory retirement age.

Poland sued for, among other things, retaliation and constructive discharge. He said that the administrative review was retaliation for his age discrimination claim. The trial court awarded damages for constructive discharge and retaliation.

The Ninth Circuit reversed on the constructive discharge claim. 2/3 of the judges said that Poland did not establish his working conditions were intolerable merely because he was demoted and transferred. Among other things, the court noted that Poland worked 5 months in Virginia, contradicting his argument the transfer created intolerable conditions.

The really significant part of the case, though, is the Ninth Circuit's stance on liability for actions taken by innocent superiors on the basis of lower level employees' complaints. Hillberry did instigate the investigation into Poland's conduct, true. But the court did not rely on that alone and said that Hillberry's referral alone would not have been enough. Rather, the court focused on the fact that the investigators had access to Hillberry's notes, that Hillberry gave the list of witnesses to the investigators, and that the panel relied on performance reviews that had increased in frequency after Poland filed his first discrimination complaint.

In upholding Poland's claim, the court announced the rule for holding employers liable for negative, non-discriminatory actions taken on the basis of an employee's complaint that is tainted by bias:

We hold that if a subordinate, in response to a plaintiff’s protected activity, sets in motion a proceeding by an independent decisionmaker that leads to an adverse employment action, the subordinate’s bias is imputed to the employer if the plaintiff can prove that the allegedly independent adverse employment decision was not actually independent because the biased subordinate influenced or was involved in the decision or decisionmaking process.

The court added that if the investigation is "entirely independent" of the subordinate's influence, the animus of the retaliating employee is not imputed to the employer.

So, if an employee engages in protected activity by complaining against a manager, that manager cannot be the impetus for negative treatment against the complaining employee, unless an "entirely independent" investigation finds the negative treatment is justified. Otherwise, the odds of a retaliation finding are very high.

The case is Poland v. Chertoff. Opinion is here.