THE LEGAL PITFALLS OF WORKPLACE ROMANCE

 

Birds do it, bees do it,

Even educated fleas do it,

Let’s do it, let’s fall in love

                        Let’s Do It (Cole Porter 1928)

I.  Introduction

History is full of great romances.  Romeo and Juliet, who defied their families for true love.   Rhett and Scarlett’s tumultuous love was set against the backdrop of the Civil War.  And of course, the classic workplace romance at the Daily Planet between Clark Kent/ Superman and Lois Lane.

But for Larry, GeneriCorp’s Human Resources Director, the great romance he’s concerned about is between Shipping Department Manager Ken Worth and Shipping Clerk Lola Rider.  Ken is Lola’s direct supervisor.  Larry learned about the couple’s sexual relationship after other female clerks in the Shipping Department angrily complained about Ken’s plans to promote Lola to the newly created and higher paying position of Assistant Shipping Manager. 

All indications at this point are that the relationship is consensual.  Morale is suffering in the Shipping Department amid complaints of favoritism and Larry is concerned about whether the company may have more serious potential legal problems.

II.  The Workplace as a “Dating Pool” 

Workplace romances are nothing new and if anything, have become more common. With the amount of time people spend working and the increased percentage of women in the workplace, it’s no surprise that the workplace is fertile ground for couples to meet. People who work together also usually live within a reasonable dating distance, and because they share a workplace, they see each other on a daily basis.  Coworkers in similar jobs may also be approximately the same age, and share similar interests both inside and outside of work.  As such, the workplace creates an inadvertent dating pool. 

In a survey of U.S. workers by the staffing and recruiting business Spherion Corporation, 39% of workers said they have already had a workplace romance and the same percentage would consider it.  Looking at the workplace relationships, the survey found 27% involved couples dating for just a few weeks or less, 30% dating for several months, 15% dating several years and 25% resulting in marriage of coworkers.  As the survey indicates, the majority of these relationships are short term and when the romance sours or goes bad, it can be really bad and cause serious problems for employers.  The Spherion Corporation survey noted that nearly half of all employees surveyed (46%) said they felt that dating a coworker would jeopardize their job security or career advancement opportunities.

III.  Non-Fraternization Policies

In this case, GeneriCorp does not have a non-fraternization policy, which would otherwise address Ken and Lola’s workplace romance.  In this regard, GeneriCorp is not unique. A recent survey by the Society for Human Resource Management  showed that 72 % of the employers who responded said they did not have a written non-fraternization policy, 14 % said they had a non-written policy that was understood within their workplace, and only 13 % indicated they had a formal written policy.  However, even when there is a policy, many employers adopt an enforcement attitude of benign neglect. 

This is not surprising.  It’s an awkward subject for some employers and Human Resource professionals, who do not relish the role of being the “Romance Police.” Many would rather not get involved in employees’ personal lives unless it is causing problems in the workplace.  However, such policies are important so employers can clearly communicate to employees what is and is not appropriate in the workplace and to protect themselves from legal liability and disruption of the work environment.

What are some of the specific reasons for adopting such a policy?  It addresses and hopefully prevents problems arising from:

·         Favoritism/perceptions of favoritism (and the ensuing rumor mill)

·         Disruption of the workplace (including extramarital affairs)

·         Conflicts of interest

·         Confidentiality (nondisclosure agreements, trade secrets, salary information, etc.)

·         Hostile Work Environment

·         Sexual Harassment (including repeated unsolicited requests for dates)

The purpose of this article is primarily to address the issues that arise from consensual workplace romances, and it is not intended to address the broader area of sexual harassment.  However, as noted above, the problem with certain office romances, especially between supervisors and subordinates, is that they may not be consensual, and in fact may be coerced.  Contrary to the traditional Title VII scenario in such cases, in recent years there has been an increase in the number of EEOC charges filed by male employees, complaining of sexual harassment from female supervisors.  Any such  issues should be addressed fully by the sexual harassment policy employers should already have in place. A non-fraternization policy should be utilized in conjunction with the sexual harassment policy.

A.        Supervisor and Subordinate Relationships

In the case of the romance between GeneriCorp Shipping Manager Ken Worth and Shipping Clerk Lola Rider, what are the legal issues?  Assuming that it is a voluntary consensual relationship, there would not appear to be any liability for GeneriCorp under Title VII for sexual harassment and/or sexual discrimination. 

  However, what about the claims of favoritism from the other female clerks in the Shipping Department, who are upset that Lola is getting a promotion from her boss and new boyfriend?  Do these other employees have a Title VII claim against GeneriCorp for favoritism shown to a co-worker who is sexually involved with a supervisor?

According to the EEOC, the answer, in regard to “insolated instances” of sexual favoritism, is “no.”  The EEOC Policy Guidance on Employer Liability under Title VII was adopted January 12, 1990, and was updated in June 1999.  It provides that:

Not all types of sexual favoritism violate Title VII.  It is the Commissioners position that Title VII does not prohibit isolated instances of preferential treatment based on consensual romantic relationships.  An isolated instance of favoritism toward a “paramour” (or a spouse or friend) may be unfair, but it does not discriminate against women or men in violation of Title VII, since both are disadvantaged for reasons other than their genders.  A female [plaintiff] who is denied an employment benefit because of such sexual favoritism would not have been treated more favorably had she been a man nor, conversely, was she treated less favorably because she was a woman.[1]

In essence, the EEOC is saying that while other employees in the workplace, both men or women, may feel the situation is unethical or unfair, it is not sexual discrimination because both groups are disadvantaged for reasons other than their gender.  However, the EEOC Policy Guidance also notes that:

Managers who engage in widespread sexual favoritism may also communicate a message that the way for women to get ahead in the workplace is by engaging in sexual conduct or that sexual solicitations are a prerequisite to their fair treatment.  This can form the basis of an implicit “quid pro quo” harassment claim for female employees, as well as a hostile work environment claim for both women and men who find this offensive.

 

The EEOC authority has been cited favorably by federal courts within the Fifth Circuit (which encompasses Louisiana, Mississippi and Texas) in dismissing such claims of sexual favoritism.  The Fifth Circuit itself has also held that an employee does not have a cause of action for retaliation for reporting a supervisor’s sexual relationship with a subordinate coworker.[2]

However, there is some indication that courts may be taking a more nuanced view on sexual favoritism based on consensual relationships. The key phrase in the EEOC Policy Guidance is that “Title VII does not prohibit isolated instances of preferential treatment based on consensual romantic relationships.” 

In a recent case by the California Supreme Court, it was held that widespread and overt sexual favoritism resulting from consensual relations could create a cause of action for sexual harassment and hostile work environment.  This ruling may reflect a trend in how courts view such cases.

 In Miller v. Department of Correction, 36 Cal. 4^th  446 (Cal. 2005), two former female employees at a California prison claimed that the warden gave unwarranted favorable treatment to numerous female employees with whom he was having sexual affairs, and they claimed it amounted to sexual harassment and discrimination.  The case was dismissed at the trial stage but the California Supreme Court reinstated the lawsuit.  While it was a state court claim, the California Supreme Court relied on the federal EEOC Policy Guidance.  In finding for the Plaintiffs, the Court held:

[A]lthough an isolated instance of favoritism on the part of a supervisor toward a female employee with whom the supervisor is conducting a consensual sexual affair would not constitute sexual harassment, when such sexual favoritism in a workplace is sufficiently widespread it may create an actionable hostile work environment in which the demeaning message is conveyed to female employees that they are viewed as “sexual playthings” or that the way required for women to get ahead in the workplace is to engage in sexual conduct with their supervisors or the management. (emphasis added).

It is not uncommon that once a consensual relationship ends, the subordinate employee will subsequently claim they were coerced by the supervisor and will file a Title VII lawsuit.    Aside from any potential legal liability, the issue of a supervisor sexually involved with a subordinate can result in acrimony and disruption in the workplace if the relationship ends badly.  Even assuming the relationship continues happily, the impact in the workplace can be disgruntled coworkers, poor morale and a never-ending distraction from the real work of your business.

An employer’s non-fraternization policy should strictly prohibit romantic relationships between supervisors and subordinate employees or any employee who falls under that supervisor’s chain of supervision.  Companies that are large enough sometimes have policies that allow the supervised employee to transfer, if possible, to a different department, where they would not be supervised by their love interest.  However, this potentially opens the door to claims of employees being treated differently on the basis of their gender.  A zero tolerance policy best protects the employer.

While this type of policy may seem harsh and draconian, it is important to remember that the purpose of your business is not to be a dating service or a singles bar.  You did not create the situation, the two employees who started the relationship created the problem.  Having been involuntarily placed in the position of having to deal with it, this is the best option to avoid possible legal liability and problems in the workplace.  In the instance of a violation of the policy, the following procedure can be followed:

(1)   Call them in and talk to them separately;

(2)   Tell them that you have reason to believe that they are involved in a sexual relationship with the other employee;

(3)   Make them aware that the company has serious concerns because a relationship between a supervisor and a subordinate employee leaves the company open to claims of sexual harassment, hostile work environment, retaliation or favoritism;

(4)   Inform both employees that it put the company in position where it has to do something to avoid legal liability and/or disruption to the workplace, and the situation  cannot continue;

(5)   Tell both of them they have until noon the next day or some other deadline to decide between themselves which of them is going to voluntarily decide to resign, and if they can’t, both of them will be terminated.  This avoids later claims of sex discrimination, because the employer’s decision is not based on gender and in the event they cannot decide, both genders are treated equally.  Some employers may elect to terminate one of the employees based on their respective employment history, position and seniority.  However, this opens the door to claims that employees of different genders were treated differently.

Some employers adopt non-fraternization policies that discourage but do not strictly forbid relationships between supervisors and employees who do not fall under their chain command.  Such policies require that the relationship must be disclosed by the supervisor to his or her manager or the next person up the supervisory chain.  The higher supervisory official then must assess the situation and make a recommendation to resolve any actual or potential conflict created by the relationship.  However, such policies may not address all of the potential problems. Likewise it results in  company managers using company time to “assess” romantic relationships.

 B.        Coworker Relationships

Fresh on the heels of addressing the Ken and Lola romance in the Shipping Department, Larry the Human Resources Manager is faced with another office love affair.  This time it’s over in the Data Processing Department.  Larry learns that Data Entry Clerks Ivy Pod and  Pete Dief have been dating quietly for six months, and generally few people at GeneriCorp know they are an item.  Neither Ivy nor Pete have any supervisory authority over each other.

It’s estimated that 80% of office romances involve similarly situated co-workers. Romantic relationships between co-workers with no supervisory authority over the other still present many of the same potential problems for the employer.  While there is less potential for sexual coercion than in a supervisor - subordinate situation, there is still plenty of opportunity for disruption of the workplace during the relationship, and even more so after an unhappy breakup.

Adopting the same zero tolerance policy as to co-worker romances is an option.  However, Human Resource professionals report such policies are harder to enforce in a co-worker scenario. Employees resent the intrusion into what they perceive as their private lives and they are more likely to keep the workplace relationships underground, putting more effort into “beating the system” as opposed to complying with a no-dating policy.

Taking into account the realities of the workplace and the reluctance to be the “Romance Police”, some employers have adopted policies that allow co-workers to date but require both individuals to enter into written agreements: (1) voluntarily disclosing their relationship, (2) acknowledging their understanding of the company’s sexual harassment and discrimination policy, and (3) acknowledging that if the relationship causes disturbance in the workplace, they may be subject to discipline, up to and including termination.  Such an agreement also requires either party to promptly report to management anything relating to the relationship or a broken-off relationship that might serve as the basis of a harassment complaint. 

Such an agreement is a way for employers to preemptively avoid problems with office romances.  If you need such a policy drafted for your business or a non-fraternization policy, please feel free to contact me and we can discuss what type of policy or agreement would work best for your workplace.

                        IV.  Tips for Dealing with Workplace Romances  

Office romances are often the focus of intense gossip, so Human Resources professionals and supervisors need to know to keep their ears open for news about job or career damaging behavior resulting from such relationships.  Supervisors need to know the appropriate disciplinary measures to take if a romance derails and the resultant employee behavior disrupts the workplace.

Employees need to be made aware that the company will not tolerate sexual liaisons or sexual behavior at work and any such relationships need to be kept entirely separate from the work environment. The company’s sexual harassment and non-fraternization policy needs to be posted and all employees should be trained as to the company’s policy.  If romance becomes sexual harassment, supervisors, working in concert with Human Resources, needs to know what to do to take immediate action.

V.  Conclusion

Paraphrasing the old song at the start of this paper, if birds and bees and educated fleas fall in love, the odds are employees at your company are doing the same.  Having the appropriate policies and training in place can help prevent legal woes  as well as workplace headaches and heartaches

Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLC, which has offices in Louisiana, Mississippi, Florida, Texas, Alabama, North Carolina and London. To view his firm bio, click here. He can be reached at (601) 360-9716 and by e-mail at fijmanm@phelps.com

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[1] See EEOC Policy Guidance on Employer Liability under Title VII for Sexual Favoritism No. 915.048

 

[2]       See Ellert v. Univ. of Texas, 52 F.3d 543 (5^th Cir. 1995) (“Even if [Plaintiff’s] knowledge of the affair was the true animus behind the discharge decision, it was a motivation that did not rely upon her gender and, as such, it was not within the ambit of Title VII’s protections.”).

EEOC Tells Employers “If you like your Criminal Background Check…you Can Keep your Criminal Background Check”

 After suffering defeats over its efforts to enforce guidelines on the use of criminal background checks, it appears the Equal Employment Opportunity Commission (“EEOC”) has launched its version of a charm offensive, while simultaneously girding for appellate battle over its latest courtroom loss.

At the recent American Bar Association's Annual Labor and Employment Conference, top EEOC officials argued that the federal agency was not trying to prevent employers from using background checks. The EEOC’s Senior Counsel James Paretti said the EEOC’s new guidelines merely seek a balance between employers’ interests in protecting property and ensuring personal safety, and making sure that minority job seekers are not subjected to disparate impact discrimination under Title VII.

Paretti denied that the EEOC was administratively seeking to create a new protected class of individuals with criminal records. Under the 2012 enforcement guidelines, the stated rationale for the EEOC’s position was that employers’ reliance on criminal records as a factor in hiring decisions disproportionately affects minorities, who statistically have higher rates of arrest and criminal conviction, i.e. disparate impact.

One continuing complaint about the EEOC’s guidelines is that it places significant costs on employers to create and maintain screening systems to evaluate whether an individual with a criminal record should be excluded on the basis of business necessity, using factors such as the severity of the crime, the period of time since conviction and the specific duties and responsibilities of the job sought. The guidelines further require employers to allow for an additional individualized assessment to those excluded by the initial screening, to explain why they should not be disqualified.

In what appears to be a new approach by the EEOC, Paretti strongly suggested that while employers are free to use background checks, they should not do them until after employers already have determined that the applicant meets all other job qualifications. In a less than subtle threat, EEOC Commissioner Chai Feldblum noted that the agency was looking into whether the EEOC would consider it a record-keeping violation if employers did not retain data on the disparate impact the an employer’s background screening had on minorities.

I have two thoughts on this. First, requiring employers to go through the time and expense of ensuring an applicant’s qualifications, and then leaving a background check until last, could result in wasted efforts and additional costs. For example, an employer could spend significant time and effort confirming that a candidate is ideally qualified to be a daycare administrator, only to find out at the end, per the EEOC’s suggestion, that the job candidate is a convicted sexual offender, and ineligible for such a position.

Second, the EEOC’s intimation that employers who use background checks could be subject to even more stringent record-keeping requirements, belies their claim that they are not trying to eliminate employers from using background checks.

In a related note, you may recall in my September 30, 2013 posting, the EEOC suffered a court defeat in the case of EEOC v. Freeman. In that case, a District Court in Maryland granted summary judgment in favor of the defendant employer Freeman, dismissing the plaintiff EEOC’s claim that Freeman’s background check policies violated Title VII. In the Court’s opinion, it issued a stinging rebuke to the EEOC for pursuing a disparate impact discrimination claim based on “a theory in search of facts to support it.”

On November 6, 2013, the EEOC appealed the District Court’s dismissal of the case to the U.S. Court of Appeals for the Fourth Circuit. Other than the loss of face over the Court’s rejection of their theory of liability, the EEOC has another strong motivation to appeal the adverse ruling. Following the ruling in its favor, Freeman filed a motion to require the EEOC to cover the company’s $1.2 million dollars in attorneys’ fees.

Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLC, which has offices in Louisiana, Mississippi, Florida, Texas, Alabama, North Carolina and London. To view his firm bio, click here. He can be reached at (601) 360-9716 and by e-mail at fijmanm@phelps.com

Workplace Profanity Can Support Religious Discrimination Claim

A ruling by a federal District Court in Oregon should serve as a warning to employers that a co-worker’s use of profanity in the workplace may be enough to support a triable religious discrimination hostile work environment claim under Title VII of the Civil Rights Act (“Title VII”). In Griffin v. City of Portland, the Court noted that while not every use of profanity that occurred was enough to prove it was directed at the plaintiff because of her protected class, there was sufficient evidence to put the case in front of a jury.

For an excellent in-depth analysis of the case, I would direct you to an article authored by MaryJo Roberts, of my firm’s New Orleans office. For purposes of this posting the facts are as follows.

The plaintiff in the case, Kellymarie Griffin, described herself as a devout Christian. She alleged that co-workers frequently used profanity in the workplace, including the names of God and Jesus Christ in their curse words. The Plaintiff alleged that because of her deep religious beliefs, she was offended by such profanity and would inform her co-workers that such language was offensive to her. From the facts of the case, it appears that for the most part, such profanity from her co-workers was not directed at her because of her faith or on the basis of religious animus, and the co-workers generally refrained from cursing in her presence after she spoke with them.

More troubling were specific comments from plaintiff’s co-worker Theresa Lareau. According to the lawsuit, Lareau called plaintiff a “wacko” and told plaintiff that she prayed to something “that didn’t exist.” On one occasion, after plaintiff complained about profanity, Lareau allegedly told her "I'm sick of your Christian attitude, your Christian [expletive] all over your desk, and your Christian [expletive] all over the place" and Ms. Lareau accused Plaintiff of using her religion for attention.

Plaintiff filed a lawsuit claiming she was subjected to a religiously hostile work environment because of her religion. Her employer sought to have the case dismissed on summary judgment, but the District Court denied the City’s motion, allowing the case to proceed to trial. The Court held that "not every allegation of offensive conduct" by Plaintiff's co-workers will ultimately be pertinent to the question [of] whether Ms. Griffin was subjected to a hostile work environment because of her protected status”, but that she had "shown sufficient evidence of religiously discriminatory conduct to make out a claim for hostile work environment religious discrimination as a matter of law."

The Court’s opinion distinguished between profanity that directly implicated religious ideas and profanity that were simple secular epithets. Of note was the Court’s observation that the absence of a hostile intent was not enough to insulate an employer from liability and “if conduct occurred 'because of' a plaintiff's protected status, even if the actor does not intend hostility or even know that the conduct may be perceived as hostile, that conduct is relevant to whether the plaintiff experienced a hostile work environment." The Court also found there was a jury question as to whether the City had taken sufficient action to remedy the alleged religious discrimination.

Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLC, which has offices in Louisiana, Mississippi, Florida, Texas, Alabama, North Carolina and London. To view his firm bio, click here. He can be reached at (601) 360-9716 and by e-mail at fijman@phelps.com

“Don’t Mess with Texas” . . . the Lone Star State Sues the EEOC over Employers’ Use of Criminal Background Checks

The State of Texas has filed a lawsuit against the Equal Employment Opportunity Commission (“EEOC”), alleging that the federal agency has overstepped its statutory authority by imposing limits on employers’ use of criminal background checks in making employment decisions.

It has been over a year since the EEOC issued strict enforcement guidelines, seeking to limit employers’ ability to make employment decisions based on an individual’s criminal history. The stated rationale for the EEOC’s position is that employers’ reliance on criminal records as a factor in hiring decisions disproportionately affects minorities, who statistically have higher rates of arrest and criminal conviction, and has a disparate impact in violation of Title VII of the Civil Rights Act (“Title VII”). While not completely banning the use of background checks, the EEOC guidelines place a burden on employers to prove that such reliance is based on business necessity.

The lawsuit by the State of Texas alleges that the EEOC “purports to limit the prerogative of employers, including Texas, to exclude convicted felons from employment” and that the State of Texas and “its constituent agencies have the right to impose categorical bans on the hiring of criminals, and the EEOC has no authority to say otherwise.”

Since the EEOC released the new enforcement guidelines in 2012, it has brought a series of lawsuits against employers, alleging violations of Title VII. However, federal courts have expressed skepticism over the federal agency’s theory of liability and in recent cases, have ruled against the EEOC and in favor of employers. In one such case, a U.S. District Court chastised the EEOC for pursuing a disparate impact discrimination claim based on “a theory in search of facts to support it.”

In its lawsuit, the State of Texas is asking the U.S. District Court to declare that the EEOC’s use of the guidelines are invalid and to enjoin the EEOC from challenging the State’s policy of not hiring convicted felons for certain state jobs.

At the time the EEOC released the stricter guidelines, many legal commentators noted that Congress had never granted the federal agency such rulemaking authority, and that the guidelines were an illegitimate exercise of authority.

Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLC, which has offices in Louisiana, Mississippi, Florida, Texas, Alabama, North Carolina and London. To view his firm bio, click here. He can be reached at (601) 360-9716 and by e-mail at fijmanm@phelps.com

Employment Non-Discrimination Act Nears Senate Vote and Related "Lagniappe"

In a  posting last month, I noted on the improved prospects for passage of the Employment Non-Discrimination Act (“ENDA”), which would extend Title VII protection against employment discrimination to lesbian, gay, bisexual or transgender employees (“LGBT”). The law would make sexual orientation/sexual identity a protected class in the same manner race, religion, gender, national origin, age and disability are protected under existing federal laws, and make it illegal for organizations with 15 or more employees to:

"[F]ail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual . . . because of such individual’s actual or perceived sexual orientation or gender identity."

On Monday, October 28, 2013, Senate Majority Leader Harry Reid (D-Nev.) announced that he would bring the legislation to a Senate vote within the coming weeks. The legislation has picked up support from two Republicans in the majority Democrat chamber. Passage in the Senate would be a symbolic first for the legislation, which has been unsuccessfully introduced in one form or another for decades. However, it is unlikely that bill will get much traction in the House of Representatives.

This is an issue where the private sector has quietly taken action without the help or hindrance of lawmakers in Washington. A significant majority of Fortune 500 companies have voluntarily put in place policies prohibiting discrimination in the workplace on the basis of sexual orientation or sexual identity. Some states also have  passed similar legislation into law.

 

However, specific provisions of ENDA do raise concern among employers, on such issues as employer dress codes. The language of ENDA does not prohibit “reasonable dress or grooming standards” but would require employers to permit:

"[A]ny employee who has undergone gender transition prior to the time of employment, and any employee who has notified the employer that the employee has undergone or is undergoing gender transition after the time of employment, to adhere to the same dress or grooming standards as apply for the gender to which the employee has transitioned or is transitioning."

Employers also have expressed worries about ENDA interpretations that would require employers to allow access to restrooms or dressing/locker rooms to employees who are biologically one gender, but identify with another gender. With the potential for sexual harassment liability or privacy issues, some business owners believe, for example, that ENDA would force them to ignore the legitimate concerns of female employees about having to share a restroom of dressing room with a male employee who self-identifies as a woman.

Regardless of how ENDA fares in Congress, the Equal Employment Opportunity Commission (“EEOC”) is already trying to pursue some of the same goals of ENDA, within the existing structure of Title VII. As I’ve previously discussed, late last year, the EEOC released its Strategic Enforcement Plan (“SEP”) for 2013 – 2016. Among the agency’s targeted goals was to provide LGBT coverage under Title VII sex discrimination, even though such protection is not contained within the actual statute. The SEP also addressed the agency’s intent to curtail employer’s use of criminal background checks when making employment decisions.

In a somewhat related story, on September 27, 2013, in an en banc ruling, a ten-judge majority of a bitterly divided sixteen-judge Fifth Circuit Court of Appeals held that the EEOC could establish a same-sex harassment claim with evidence of gender stereotyping in the form of sexually charged taunting directed at a male employee by his male supervisor. EEOC v. Boh Bros. Constr. Co., (5th Cir. Sept. 27, 2013).

In 2007, the employee filed a charge with the EEOC alleging sexual harassment stemming from the conduct of his male supervisor, who oversaw an all-male workforce on an ironworker construction site. The supervisor purportedly was lewd and vulgar to the employee on a daily basis, including instances of exposing his genitals to the employee while urinating, simulating anal intercourse whenever the employee bent over, and using homophobic slurs to refer to the employee. Upon completion of the administrative process, the EEOC brought an enforcement action on the employee’s behalf and, following a three-day jury trial, obtained a $300,000 verdict in favor of the employee.

The employer appealed the verdict. Initially, a Fifth Circuit panel tossed out the trial verdict for the employee, finding that there was insufficient evidence to establish that the supervisor had discriminated against the employee because of his gender. The EEOC subsequently sought and obtained an en banc review. Upon review, the en banc majority disagreed with the panel’s decision to overturn the jury verdict.

Although same-sex harassment has been judicially recognized for over a decade, this decision links the concept of unlawful gender stereotyping directly to same-sex harassment and reminds employers that same-sex taunting can be actionable. Moreover, the court noted that there was no evidence that either the employee or supervisor were homosexual, nor was evidence presented that the conduct at issue was motivated by sexual desire. The court’s opinion cautions that notions of sexual harassment based solely on sexual desire or exclusively between members of the opposite sex are misplaced and can increase risks for employers who are not aware that the prohibitions can be broader.

Employers should review their anti-discrimination and anti-harassment policies in light of this opinion, and stay tuned for further developments in this area.

* Lagniappe: An extra or unexpected gift or benefit, i.e. “a little something extra”. (Chiefly Southern Louisiana & Mississippi).

Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLP, which has offices in Louisiana, Mississippi, Florida, Texas, Alabama, North Carolina and London. To view his firm bio, click here. He can be reached at (601) 360-9716 and by e-mail at fijman@phelps.com

 

“You’ve Got (Mass) Mail”…From the EEOC?

In an ironic reversal of roles, on Monday October 21, 2013, the Equal Employment Opportunity Commission (“EEOC”) asked a federal District Court in the District of Columbia to dismiss a lawsuit filed against the agency by an aggrieved employer. The lawsuit alleges the EEOC unconstitutionally solicited or “trolled” the company’s employees to become class members in a potential age discrimination class action. (Case New Holland, Inc. and CNH America LLC v. EEOC et al., Civil Action No. 1:13cv1176).

The suit claims the EEOC violated the law by sending a mass e-mail, utilizing the company’s business e-mail domains, to over 1300 management and non-management employees, requesting the employees complete a survey and supply evidence of discrimination against the employer.

For employers more familiar with the typical EEOC procedures associated with a Charge of Discrimination, the mass e-mailing and request for information, without any notice to the company, raises some serious red flags.

The facts of the case are as follows. In March 2011, the EEOC notified CNH America, LLC (“CNH”) that it was launching a nation-wide review of the company for alleged violations of the Age Discrimination in Employment Act (“ADEA”). The company employs approximately 10,000 people in the United States. The EEOC made a sweeping request for information and documents.

According to the lawsuit, in January 2012, the company produced to the EEOC 300 documents totaling 5,707 pages and over 600,000 electronic records from CNH databases, totaling 66,630 pages of documents. After complying with the agency’s request, the company received no communications of any sort from the EEOC until June 5, 2013, eighteen months later.

At 8:00 a.m. on June 5, 2013, the EEOC conducted a mass e-mailing to the business e-mail addresses of 1330 CNH employees across the United States and Canada. Over 200 of the recipients were members of management. The e-mail stated the EEOC was conducting “a federal investigation” and making “an official inquiry” into allegations that CNH discriminated against job applicants and employees, and contained a link to an on-line series of questions. It also asked for the employee’s birth date, address and telephone number. The EEOC’s on-line survey instructed CNH employees to “Please complete and submit this electronic questionnaire as soon as possible.”

The e-mail had been sent without any advance notice to CNH and according to the lawsuit, the mass mailing disrupted CNH’s business operations at the start of the work day and communicated to employees they should cease their legitimate work duties and instead immediately respond to the agency’s questions. A significant concern was the company’s belief that the EEOC had deliberately cut the employer out of the investigatory process, and had solicited members of management, whose statements arguably could have bound the company.

CNH filed its lawsuit on August 1, 2013, alleging that the EEOC’s mass e-mailing: (1) was not authorized by any EEOC rule or regulation, (2) violated the federal Administrative Procedure Act, (3) constituted an unreasonable search and seizure in violation of the Fourth Amendment, (4) violated the takings clause of the Fifth Amendment, and (5) violated the EEOC’s own compliance manual, which requires that an employer be allowed to have a spokesman or attorney present during an interview of management employees, and that advance notice be given. The suit claims the EEOC engages in bullying tactics to force companies into monetary settlements of questionable claims.

The lawsuit seeks a permanent injunction prohibiting the EEOC from soliciting CNH employees by e-mail, and additional injunctive relief to prevent the EEOC from utilizing any of the information obtained through the mass e-mailing. The lawsuit claims:

"The EEOC has never, before June 5, 2013, sent out emails through business email servers, without any prior notice to the respondent employer, in an attempt to unearth plaintiffs against the employer"

On October 21, 2013, after some extensions granted by the District Court, the EEOC responded with a Motion to Dismiss. While addressing CNH’s various claims, the EEOC’s primary argument was that the case should be dismissed because the District Court lacked subject matter jurisdiction to consider CNH’s claims because it was not a “final agency action”, and that the EEOC’s actions were within the agency’s investigative authority. Additional briefing by the parties will take place before any ruling.

I am not going to try to “read the tea leaves” as to how the District Court will ultimately rule in this case, but a few things are worth noting. First, the EEOC has been less than successful lately when it comes to telling U.S. District Judges what their authority is in regard to the agency. You’ll recall in a recent posting, I discussed the EEOC’s recently stated position that the agency’s conciliation efforts with employers, or lack thereof, were not subject to review by the federal courts. As noted in my article, the EEOC subsequently received a severe slap-down by a U.S. District Judge in Texas. The EEOC also has recently found itself subject to significant monetary sanctions by federal courts for some of its investigatory and litigation tactics.

Second, this extremely aggressive approach by the EEOC should concern employers because it seems to be a deliberate effort to cut employers and their legal counsel out of the investigatory process. The EEOC has always had the investigatory right to interview non-management employees without an employer representative or attorney present. However, because a statement by a member of management could be considered a binding admission on the part of the company, an employer is entitled to have legal counsel present for such interviews. It’s very easy to envisage a manager being cowed by a very official and intimidating e-mail into providing information, unbeknownst to the employer.

Third, heavy handed tactics, such as the mass mailing to the CNH employees described in the Complaint, or other EEOC actions that have caught the attention of the federal courts and resulted in sanctions, could conceivably result in blowback for the agency. This might include congressional action to limit the EEOC’s authority.

Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLP, which has offices in Louisiana, Mississippi, Florida, Texas, Alabama, North Carolina and London. To view his firm bio, click here. He can be reached at (601) 360-9716 and by e-mail at fijmanm@phelps.com

The EEOC’s Title VII Conciliation Duty Remains Fair Game for Judicial Review

I am going to apologize in advance for this “Employee with the Dragon Tattoo Employment Law Blog” posting, because I suspect it will likely contain more than your daily suggested requirement of “legal-ese”. However, the issue of the Equal Employment Opportunity Commission’s (“EEOC”) duty to engage in conciliation before suing an employer seems to be developing into another ongoing showdown between the agency and the federal courts. It is also an important issue for employers.

What prompted this posting was an editorial in the Wall Street Journal entitled "Is the EEOC Above the Law?"  It addressed the EEOC’s recently stated position that the EEOC’s conciliation efforts with employers, or lack thereof, were not subject to review by the courts. As detailed in the editorial, the EEOC subsequently received a severe slap-down by a U.S. District Judge in Texas. It also got me thinking about a case I had a number of years ago where the question of “good faith conciliation” became a significant issue.

For non-lawyers (and other well-adjusted folks) “conciliation” is just a fancy word for trying to reach a settlement before an EEOC Investigation and determination evolves into an actual lawsuit brought by the agency.  It's an option many employers want to at least explore before having to engage in the costly defense of a discrimination suit brought by a government agency. 

When the EEOC makes a “reasonable cause” determination in the course of investigating a charge of discrimination, it triggers a mandatory responsibility under 42 U.S.C. § 2000e-5(f)(1) to engage in good faith conciliation efforts before filing a lawsuit. This responsibility is not supposed to be a mere formality that is satisfied by merely making a few telephone calls and then checking a box on an agency form. Conciliation, after all, serves important public interests by, among other things, guaranteeing administrative due process to the accused, protecting the public from unwarranted litigation expense, and conserving scarce administrative and judicial resources. It is for these reasons that federal courts uniformly recognize that the responsibility of good faith conciliation is so important that honoring it is a condition precedent to the EEOC filing a lawsuit.

Good faith conciliation efforts depend on the honest and straightforward communication of basic factual information. Common sense dictates that good faith conciliation efforts do not include “hiding the ball” by failing to communicate, or worse, withholding, basic factual information, since such tactics obviously deprive the accused of both the opportunity to respond to claims against it and the ability to understand the basis of any damages sought in settlement of those claims. Rather, good faith conciliation efforts can only occur when the EEOC “lays the cards on the table” by disclosing factual information sufficient to afford the accused with a reasonable opportunity to respond to the claims and damages at issue before the EEOC commits itself to litigation.

To satisfy the statutory requirement of good faith conciliation, the EEOC must: (1) outline to the employer the reasonable cause for its belief that the law has been violated; (2) offer an opportunity for voluntary compliance; and (3) respond in a reasonable and flexible manner to the reasonable attitudes of the employer. If a court finds that the EEOC terminated conciliation prematurely or failed to conciliate in good faith, it may stay the action and compel the EEOC to conciliate or dismiss the lawsuit. 42 U.S.C. § 2000e-5(f)(1) (1976) (the court may “in its discretion stay further proceedings for not more than sixty days pending further efforts of the Commission to obtain voluntary compliance”); see also EEOC v. Agro Dist., LLC, 555 F.3d 462, 469 (5th Cir. 2009) (“Courts remain free to impose a stay for the EEOC to continue prematurely terminated negotiations, and where the EEOC fails to act in good faith, dismissal remains an appropriate sanction.”).

So what are some hallmarks of “bad faith” conciliation? Denying an employer’s reasonable request for a face-to-face meeting is a common and compelling factor in finding that the EEOC has failed to conciliate in good faith. See, e.g., EEOC v. Agro Dist., LLC, 555 F.3d 462, 469 (5th Cir. 2009); EEOC v. Pacific Maritime Assoc., 188 F.R.D. 379, 380-381 (D. Or. 1999).

Another tactic found by the courts to be unreasonable and in bad faith is if the EEOC takes an “all-or-nothing” approach to settlement. See, e.g., Agro, 555 F.3d at 468 (“The EEOC's take-it-or-leave-it demand for more than $150,000 represents the coercive, ‘all-or-nothing approach’ previously condemned by this court…”); EEOC v. Asplundh Tree Expert Co., 340 F.3d 1256, 1259 (11th Cir. 2003) (“As we have said before, such an ‘all or nothing’ approach on the part of a government agency, one of whose most essential functions is to attempt conciliation with the private party, will not do”).

Lastly, federal courts have held that the EEOC’s failure to explain its monetary demands is not reasonable and does not allow a defendant to properly respond. See, e.g., EEOC v. Golden Lender Fin. Group, No. 99 CIV. 8591 (JGK), 2000 WL 381426, at *5 (S.D. N.Y. Apr. 13, 2000) (holding that the EEOC did not meet its statutory obligation to conciliate when it ended conciliation after the charged party sought additional information regarding the requested damages of certain alleged victims); EEOC v. Pac. Mar. Ass’n, 188 F.R.D. 379, 381 (D. Or. 1999) (ordering a stay for further conciliation where “meaningful conciliation efforts were thwarted” during conciliation after “[c]ounsel for [defendant] reasonably requested that the EEOC investigator explain his calculation of the monetary settlement offered”).

In the case I was involved in, my co-counsel and I were faced with all three of the tactics described above. We were representing an out-of-state company in a sexual harassment claim brought by a number of employees, and the particular out-of-state EEOC office had filed suit after very perfunctory and unproductive conciliation.  The client had responded promptly and correctly when it discovered the actions of a rogue supervisory employee, yet the EEOC was demanding an excessive "take-it-or-leave-it" monetary settlement, wildly disproportionate to actual damages in the case.

We responded by filing a motion with the court to stay litigation and compel good faith conciliation. In a well-reasoned opinion, the U.S. Magistrate assigned to the case ruled in our favor and ordered the EEOC back to the table.  While the case was not resolved at the "re-conciliation", it laid the groundwork for a later settlement of the case for a reasonable amount.

I think the ability of the federal courts to review the EEOC’s conciliation efforts is a valuable protection for employers, and without it, the statutory requirement of conciliation would become meaningless. In fairness and full disclosure, my overwhelming experience with the EEOC in this regard, especially the local office here in Jackson, Mississippi, has been positive and the people professional and upfront in conciliation negotiations. However, as shown by the many court opinions on the subject, bad faith conciliation occurs and the judiciary is a vital check to such abuse.

Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLP, which has offices in Louisiana, Mississippi, Florida, Texas, Alabama, North Carolina and London. To view his firm bio, click here. He can be reached at (601) 360-9716 and by e-mail at fijmanm@phelps.com

Accessing Employee’s Personal E-Mails on Company-Issued Phone Exposes Employer to Liability Under Federal Stored Communications Act

Earlier this month, I posted an article on how employers could face liability under the federal Stored Communications Act (“SCA”) if they solicited Facebook “friends” to access an employee’s social media postings. 

According to a U.S. District Court in Ohio, employers also could face SCA liability for viewing an employee’s e-mails on a company-issued phone.

In Lazette v. Kulmatycki and Cellico Partnership d/b/a Verizon Wireless, 3:12-cv-2416 (JGC) (N.D. Ohio June 5, 2013), Sandi Lazette received a company-issued Blackberry from her employer, Verizon Wireless.  Lazette would send and receive business related e-mails on the device. She was told that she also could use the company-issued phone for personal e-mail so she linked the device to her personal G-mail account.

When she left the company in September 2010, she returned the company-issued phone to her supervisor, Chris Kulmatycki. She understood that Verizon would “recycle” the phone for use by another employee.  However, when Lazette returned the phone, she neglected to delete the access to her personal Gmail account.

Over the next 18 months, without Lazette’s knowledge or authorization, Kulmatycki accessed her G-mail and accessed approximately 48,000 of her e-mails, which included communications about her family, career, financials, health, and other personal matters.  Lazette subsequently filed suit against Verizon and her former supervisor under the SCA. 

The company sought to have the case dismissed on a number of grounds, including its argument that the supervisor’s access was “not” unauthorized because: (1) he used a company-owned Blackberry; (2) he did not access a “facility,” as the statute uses that term; and that (3) Lazette authorized Kulmatycki’s access because she had not expressly told him not to read her e-mails and that she implicitly consented to his access by not deleting her G-mail account. Not surprisingly, the District Court rejected Verizon’s argument:

Turning to the substance of defendants’ contentions, defendants, in effect, contend that plaintiff’s negligence left her e-mail door open for Kulmatycki to enter and roam around in for as long and as much as he desired . . . Whether viewed through the lens of negligence or even of implied consent, there is no merit to defendants’ attempt to shift the focus from Kulmatycki’s actions to plaintiff’s passive and ignorant failure to make certain that the blackberry could not access her future e-mail.

After the District Court denied Verizon and Kulmatycki’s motion to dismiss, the case settled in August 2013 before it went to trial.

In this particular case, it’s obvious that the supervisor’s actions were not authorized by Verizon and his stalker-like review of the plaintiff’s personal e-mails were not for any legitimate business purpose. 

Aside from the inherent creepiness and “ick factor” of the plaintiff’s former supervisor, this case highlights the need for employers to have very clear policies as to what level of privacy an employee can expect in their use of a company’s devices or when an employee uses a personal mobile device or computer on behalf of their employer. 

In years past, such policies would simply inform employees that they should have no expectation of privacy, and that the company device is the property of the employer and may be subject to monitoring.  However, with companies allowing more personal use of company devices or moving to the practice of “BYOD” or “bring Your Own Device” for use at work, the lines have gotten blurred.  As such, employers need to regularly review and update their handbook policies to address how technology is actually being utilized by employees.

In light of this case, a good internal practice would be for a company’s IT department to review all returned devices and ensure they are scrubbed of any personal information before being recycled to another employee.

Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLP, which has offices in Louisiana, Mississippi, Florida, Texas, Alabama, North Carolina and London. To view his firm bio, click here. He can be reached at (601) 360-9716 and by e-mail at fijmanm@phelps.com.

EEOC Lawsuit Over Dreadlocks Sparks Criticism and Highlights Issues with Workplace Grooming Policies

The Equal Employment Opportunity Commission ("EEOC") has filed suit against Catastrophe Management Solutions, a Mobile, Alabama based insurance claims company, alleging the company violated Title VII of the Civil Rights Act by discriminating against an African-American job applicant on the basis of race because she wore dreadlocks. (Equal Employment Opportunity Commission v. Catastrophe Management Solutions, Inc., Civil Action No. 1:13-cv-00476-CB-M) The lawsuit highlights the employment issues that can arise over workplace grooming policies, and also has sparked sharp criticism from the business community.

According to the EEOC's suit, after completing an online job application, Chastity Jones was among a group of applicants who were selected for a group interview on May 12, 2010. At the time of the interview, Jones, who is black, had blond hair that was dreaded in neat curls, or "curllocks." Catastrophe's human resources staff conducted the group interview and offered Jones a position as a customer service representative.

Later that day, the human resources staff met with Jones to discuss her training schedule. During that meeting, they realized that Jones's curled hair was in dreadlocks. The manager in charge told Jones that the company did not allow dreadlocks and that she would have to cut them off in order to obtain employment. Jones declined to cut her hair, and the manager immediately rescinded the job offer.

In the lawsuit, the EEOC argues that Catastrophe's ban on dreadlocks and the imposition of its grooming policy on Jones discriminates against African-Americans based on physical and/or cultural characteristics. Delner Franklin-Thomas, district director for the EEOC's Birmingham District Office, stated, "Generally, there are racial distinctions in the natural texture of black and non-black hair. The EEOC will not tolerate employment discrimination against African-American employees because they choose to wear and display the natural texture of their hair, manage and style their hair in a manner amenable to it, or manage and style their hair in a manner differently from non-blacks.

The lawsuit came under sharp criticism today in a Wall Street Journal editorial entitled "The EEOC's Bad Hair Day".  The editorial notes the EEOC has a habit of "challenging perfectly legal business practices" and "[s]o is it any wonder that the agency is now expanding resources to workplace dress codes." The editorial had much harsher words for the EEOC’s position:

Apparently Ms. Franklin-Thomas has never seen dreadlocked whites (like the Counting Crow's Adam Duritz) or Latinas (like Shakira). Catastrophe's policy is in fact racially neutral because it enjoins all employees, regardless of race, "to be dressed and groomed in a manner that projects a professional and businesslike image," including "hairstyle." The company determined that dreadlocks don't meet that standard, as is its right.

By leveling a complaint on Ms. Jones's behalf, the EEOC is perversely suggesting that black people shouldn't be held to the same standards as everyone else. The larger travesty of this case and other misbegotten EEOC crusades of late is that they take time and resources away from individuals with legitimate claims of employment discrimination. Banning dreadlocks doesn't qualify.

Lawsuits over grooming policies and dress codes are nothing new, but usually arise in the context of Title VII claims of religious discrimination. These occur when a workplace policy conflicts with a religious practice. Such practices might include the wearing of a beard by Muslim men, the wearing of a skullcap or yarmulke by Jewish men, the wearing of a veil or hijab by Muslim women or the wearing of a turban by male practitioners of Sikh faith. As noted in an earlier article, the wearing of certain tattoos can be considered a religious practice under Title VII. Typical conflicts are policies against facial hair, or wearing attire that interferes with safety equipment or procedures.

In the context of religion, Title VII requires an employer to reasonably accommodate an employee’s or job applicant’s religious observances or practices unless it can demonstrate that doing so would constitute an undue hardship on the conduct of its business. The reasonableness of an employer’s attempt to accommodate is a factual determination, made on a case-by-case basis. Each case necessarily depends on its own facts and circumstances, and in a sense every case boils down to whether the employer has acted reasonably. When putting together employee handbooks for clients, I typically advise including a provision in the dress or grooming codes that provides for a request for religious accommodation.

However, in the lawsuit against Catastrophe, the EEOC is claiming that the insurance company’s policy that employees "be dressed and groomed in a manner that projects a professional and businesslike image," including "hairstyle" specifically discriminates against African-Americans on the basis of race. The aggressive position of the EEOC on this issue is a troubling development for employers, many of which likely have grooming and dress code policies very similar to the defendant in this case.

Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLP, which has offices in Louisiana, Mississippi, Florida, Texas, Alabama, North Carolina and London. To view his firm bio, click here. He can be reached at (601) 360-9716 and by e-mail at fijmanm@phelps.com.

Employers who Solicit Facebook Friend “Snooping” Could Face Liability Under Federal Stored Communications Act

Facebook postings by employees have increasingly become a factor in employment discrimination lawsuits.  In some of my recent cases, employers were made aware of an employee’s threats of violence, workplace misconduct or other inappropriate actions when a co-worker, who also was a Facebook “friend”, brought the Facebook post to the employer’s attention.  Such posts can be powerful evidence in defending against a discrimination lawsuit and proving that any adverse employment action was for a legitimate non-discriminatory reason.

However, a recent ruling by a federal District Court in New Jersey strongly suggests that employers who actively solicit Facebook friends to disclose the postings of an employee could be in violation of the Federal Stored Communications Act (“SCA”), 18 U.S.C. §§ 2701-11.

The SCA provides that whoever "(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or (2) intentionally exceeds an authorization to access that facility; and thereby obtains, alters or prevents the authorized access to a wire or electronic communication while in electronic storage in such a system" shall be liable for damages. The statute further provides that "[i]t shall not be unlawful . . . [to] access an electronic communication made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public." In other words, the SCA covers: (1) electronic communications, (2) that were transmitted via an electronic communication service, (3) that are in electronic storage, and (4) that are not public.

In Ehling v. Monmouth-Ocean Hospital Service Corp. , the plaintiff was a nurse who maintained a Facebook account and had approximately 300 Facebook friends. Plaintiff selected privacy settings for her account that limited access to her Facebook wall to only her Facebook friends. Plaintiff did not add any hospital managers as Facebook friends. However, Plaintiff added many of her coworkers as friends. Unbeknownst to Plaintiff, a hospital paramedic who was one of her Facebook friends was taking screenshots of Plaintiff's Facebook wall and printing them or emailing them to Plaintiff’s manager.

The evidence in the case showed that the paramedic independently came up with the idea to provide Plaintiff's Facebook posts to the manager, who had never asked the paramedic for any information about Plaintiff and had never requested to be apprised of Plaintiff's Facebook activity.

Plaintiff was subsequently temporarily suspended when the hospital learned of her Facebook post where she criticized paramedics in Washington, D.C. for saving the life of a gunman involved in a fatal shooting.  The post read as follows:

 An 88 yr old sociopath white supremacist opened fire in the Wash D.C. Holocaust Museum this morning and killed an innocent guard (leaving children). Other guards opened fire. The 88 yr old was shot. He survived. I blame the DC paramedics. I want to say 2 things to the DC medics. 1. WHAT WERE YOU THINKING? and 2. This was your opportunity to really make a difference! WTF!!!! And to the other guards....go to target practice.

The plaintiff received a memo from the hospital explaining the reason for the suspension was the hospital’s concern that her Facebook comment reflected a "deliberate disregard for patient safety." In response, Plaintiff filed a complaint with the National Labor Relations Board ("NLRB"). After reviewing the evidence, the NLRB found that the hospital did not violate the National Labor Relations Act. The NLRB also found that there was no privacy violation because the post was sent, unsolicited, to hospital management.  The plaintiff subsequently filed suit in federal court, alleging the hospital violated her rights under the SCA.

In its ruling, the District Court held that that non-public Facebook wall posts are covered by the SCA, because: (1) Facebook wall posts are electronic communication, (2) they are transmitted via an electronic communication service, the Facebook wall posts are in electronic storage, and (4) Facebook wall posts that are configured to be private are, by definition, not accessible to the general public, and that the touchstone of the SCA is that it protects private information.

However, the District Court ruled that the hospital was not liable because one of the SCA’s exceptions applied, which exempted conduct authorized (1) by the person or entity providing a wire or electronic communications service; [or] (2) by a user of that service with respect to a communication of or intended for that user." 18 U.S.C. §2701(c).

The Court held that exception applied because the plaintiff had authorized the paramedic to have access to her Facebook wall by making him a “friend” and that the information the paramedic supplied to hospital management was completely unsolicited.

The District Court implicitly held that if the hospital had directed the paramedic or any other of the plaintiff’s Facebook friends to monitor and keep them appraised on Plaintiff’s Facebook activity, it would have constituted a violation of the SCA due to the hospital seeking unauthorized access.  The SCA provides for civil liability under the statute and an employer would be subject to monetary damages.

While it may be tempting for employers to utilize the Internet to monitor employees’ conduct, the lesson from this case is that employers should never request that co-workers or any other individuals access an employee’s private social media.  As related in previous articles, employers also need to be aware that overly broad social media policies could expose them to potential liability under the National Labor Relations Act.

Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLP, which has offices in Louisiana, Mississippi, Florida, Texas, Alabama, North Carolina and London. To view his firm bio, click here.  He can be reached at (601) 360-9716 and by e-mail at fijmanm@phelps.com.

JAILHOUSE BLUES: EEOC TRIES TO ADDRESS CONCERNS OVER CONTROVERSIAL GUIDELINES ON CRIMINAL BACKGROUND CHECKS

The Equal Employment Opportunity Commission (“EEOC”) has responded to complaints from nine state attorneys general, over the federal agency’s enforcement actions against employers who use criminal background checks in making employment decisions.

However, the EEOC’s assurances are unlikely to address the concerns raised by the states, and the Commission’s enforcement guidelines are already faring poorly in the courts.

It has been over a year since the EEOC issued its revised enforcement guidance on the extent to which employers may rely on an individual’s criminal history in making hiring or other employment selection decisions. The stricter guidelines made it clear that an improper reliance on such information may constitute a violation of Title VII of the Civil Rights Act of 1964 (“Title VII”). The stated rationale for the EEOC’s position is that employers’ reliance on criminal records as a factor in hiring decisions disproportionately affects minorities, who statistically have higher rates of arrest and criminal conviction. This theory of liability is called “disparate impact.”

The complaints from the states were prompted by two high profile lawsuits filed by the EEOC against BMW Manufacturing in South Carolina and Dollar General Stores, based in Illinois. In the suits, the EEOC alleged the companies discriminated against minorities by excluding them from employment opportunities based on improper reliance on criminal background checks. The states take issue with the Commission’s reliance on the disparate impact theory of liability and accuse the EEOC of improperly and illegitimately seeking to expand Title VII’s protections to "former criminals."

In its letter  responding to the complaints, the EEOC claims criticism of the new guidelines is based on a “misunderstanding” of how employers should implement the Commission’s suggestions. The EEOC also claims that the employee screening proposed by the guidelines should not result in "significant costs" to employers.

Although employers may continue to struggle to determine how to best comply with the guidance, as demonstrated by a recent U.S. District Court decision, they are also not defenseless to claims that their policies are discriminatory.

On August 9, 2013, a District Court in Maryland granted summary judgment in favor of the defendant employer Freeman, dismissing the plaintiff EEOC’s claim that Freeman’s background check policies violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(k). EEOC v. Freeman, Case No. RWT 09cv2573 (D. Md. Aug. 9, 2013). In so doing, the District Court recognized an employer’s policy of conducting criminal history or credit record background checks on potential employees as “a rational and legitimate component of a reasonable hiring process.” The District Court chastised the EEOC for pursuing a disparate impact discrimination claim based on “a theory in search of facts to support it,” disregarding the EEOC’s expert’s report as “an egregious example of scientific dishonesty.”

The EEOC’s expert’s report was pivotal to the success or failure of its claim. To prevail on a claim of disparate impact discrimination, a plaintiff must show that a certain class of applicants is disproportionately and adversely impacted by a particular employment practice on the basis of their race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(k). In its revised guidance, the EEOC essentially presumes that, based on national statistics, the use of criminal records to exclude individuals from employment has a disparate impact on individuals of certain races and national origins. This presumption, however, may not be sufficient in court where the plaintiff bears the burden of proving disparate impact by showing statistical disparities between the number of protected class members in the qualified applicant group and those in the relevant segment of the workforce. More often, the plaintiff’s burden requires reliable and accurate statistical analysis performed by a qualified expert.

Freeman challenged the EEOC’s use of an unreliable expert report to establish a prima facie case of disparate treatment discrimination and prevailed. The District Court, in excluding the EEOC’s expert’s report, found that the report was based upon an inaccurate database containing “cherry-picked” data and a “mind-boggling number of errors.” The District Court was also unpersuaded by the EEOC’s arguments that national statistics were sufficient to create an inference of disparate impact, noting that the national statistics relied upon by the EEOC were not representative of the relevant applicant pool.

With neither national statistics nor expert analysis to support its allegations of disparate impact, the District Court concluded that the EEOC’s claim could not survive and granted summary judgment in favor of Freeman. This decision strikes at one of the pillars for the EEOC in pursuing disparate impact litigation based on the use of criminal background checks; namely, the ability to move easily past (or effectively skip) the plaintiff’s burden to prove that a particular policy has a disparate impact on a class of applicants based on their race or other protected characteristic. The EEOC cannot rest on its presumption that the mere existence of a background check policy creates a disparate impact; it must prove the existence of this disparate impact with reliable expert testimony and statistics.

Despite the Freeman decision, employers should still expect the EEOC to rely upon its presumption of disparate impact during the investigation stage. What is less clear is what impact this decision may have on the two currently pending lawsuits the EEOC has filed against BMW and Dollar General. It is clear, though, that despite some direction from the federal courts, employers still continue to struggle when determining how to comply with the EEOC’s revised guidance more than a year after its issuance.

Notably, employers who operate in states that have their own requirements regarding the hiring of applicants with criminal backgrounds face a particularly arduous task. At least one federal court has recognized this dilemma but has concluded that “Title VII trumps state mandates.” See Waldon v. Cincinnati Public Schools, Case No. 1:12-CV-00677 (S.D. Ohio Apr. 24, 2013). In Waldon, the defendant employer Cincinnati Public Schools complied with a state law that required background checks of current school employees, even those whose duties did not involve the care, custody, or control of children. As a result, two long-term employees were fired, and they subsequently filed suit, alleging that their terminations were based on state legislation that had a racially discriminatory impact.

The school system moved to dismiss, asserting that it was simply following Ohio law by terminating the plaintiffs’ employment, that it maintained no particular employment practice that caused a disparate impact, and that it was a business necessity to follow Ohio law. A District Court in Ohio disagreed, recognizing that although it was clear that the school system did not intend to discriminate, it implemented a policy that had a disparate impact on African-Americans. The District Court did not believe that the school system was “compelled to implement the policy” and stated that the school system “could have raised questions with the state board of education regarding the stark disparity it confronted.”

The District Court’s suggested course of action for employers facing such a quandary is not particularly instructive, especially when multiple state leaders themselves have expressed to the EEOC the difficulty of complying with its guidance. On July 24, 2013, the attorneys general for nine states sent a letter to the EEOC expressing concerns about its revised guidance and the position the EEOC has taken in recent lawsuits regarding criminal background checks. View the letter here. The letter described the EEOC’s claim that its revised guidance document supersedes state and local hiring laws as “particularly egregious” and expressed concern that many of the states’ laws could be affected.

Thus, the propriety of criminal background check policies remains uncertain, and the EEOC’s pursuit of litigation has not added clarity. If anything, the EEOC has muddied the waters by pursuing cases with theories like it advanced in Freeman, which cause employers to wonder whether they should consider ignoring the EEOC, or expend resources trying to comply with guidance that has not been well received in federal court litigation, as well as a patchwork of competing state laws. Nevertheless, Freeman is but one case, state law continues to evolve, and the jury is still out on whether the states that have publicly criticized the EEOC’s guidance will do more than jawbone about it. In the meantime, employers seeking to navigate the various laws should continue to monitor the developments and revisit their policies and practices as the situation develops.

Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLP, which has offices in Louisiana, Mississippi, Florida, Texas, Alabama, North Carolina and London. To view his firm bio, click here. He can be reached at (601) 360-9716 and by e-mail at fijmanm@phelps.com.