Employment Law

Eleventh Circuit: Title VII Doesn’t Prohibit Sexual Orientation Discrimination

Why it matters

In a decision that is already being cited in other courts around the country, the U.S. Court of Appeals for the Eleventh Circuit held that discrimination based on sexual orientation is not included in Title VII’s prohibition against discrimination “because of sex.” A security officer for Georgia Regional Hospital, Jameka Evans claimed she was constructively discharged from her position because she did not conduct herself in a traditional female manner and that her sexual orientation resulted in a hostile work environment as she did not comport with traditional gender stereotypes. A district court rejected her Title VII suit and a divided panel of the Eleventh Circuit affirmed, holding that sexual orientation is not protected under the statute. The majority cited a 1979 Fifth Circuit decision for support while the dissent argued that intervening U.S. Supreme Court case law trumped that precedent. The court did remand the case to permit the employee to amend her complaint with regard to her sex stereotyping discrimination claim, however, as she failed to plead sufficient facts. Employers around the country are already citing the decision for support, including in a closely watched case currently pending before the en banc Seventh Circuit.

Detailed discussion

For a little over one year, Jameka Evans worked as a security officer at Georgia Regional Hospital. After she left the job, she filed a pro se complaint alleging that she was discriminated against on the basis of her sex and targeted for termination for failing to carry herself in a traditional female manner.

Evans claimed that a less qualified individual was appointed to be her direct supervisor, that her equipment was tampered with, and that after she complained about allegedly discriminatory behavior against her, she was retaliated against. The hospital moved to dismiss the suit, arguing that Title VII does not prohibit discrimination based on sexual orientation.

A magistrate judge recommended that the lawsuit be dismissed with prejudice, holding that the statute doesn’t cover discrimination based on sexual orientation and that the plaintiff’s claim of discrimination based on gender non-conformity was “just another way to claim discrimination based on sexual orientation.” A district court judge agreed. With the benefit of appointed counsel, Evans appealed.

The U.S. Court of Appeals for the Eleventh Circuit affirmed in part and reversed in part.

Binding circuit precedent forecloses a claim of workplace discrimination under Title VII based on her sexual orientation, the court said. In 1979, the Fifth Circuit wrote in Blum v. Gulf Oil Corp. that “[d]ischarge for homosexuality is not prohibited by Title VII.” When the circuit was divided to create the Eleventh Circuit, the court adopted as binding precedent all prior decisions of the Fifth Circuit.

The majority was not swayed by an argument from the Equal Employment Opportunity Commission (EEOC) as amicus curiae that the statement in Blum was dicta and not binding precedent. Nor was the panel persuaded that the U.S. Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins supported a cause of action for sexual orientation discrimination under Title VII. “The fact that claims for gender non-conformity and same-sex discrimination can be brought pursuant to Title VII does not permit us to depart from Blum,” the majority wrote.

Other circuits have reached the same conclusion, the panel noted.

However, the court did permit Evans to pursue her gender non-conformity claim, holding that it “constitutes a separate, distinct avenue for relief under Title VII,” and is not just another way to claim discrimination based on sexual orientation, as the lower court ruled.

Although the court found discrimination based on gender non-conformity actionable, Evans’ original pro se complaint failed to plead facts sufficient to move the case forward, the court said. “In other words, Evans did not provide enough factual matter to plausibly suggest that her decision to present herself in a masculine manner led to the alleged adverse employment actions,” the panel wrote. The court affirmed dismissal of the claim but reversed to allow Evans the opportunity to amend her complaint.

One member of the majority wrote separately to discuss the “legally distinct” concepts of a gender non-conformity claim under Title VII and a person who experiences discrimination because of sexual orientation.

“Deviation from a particular gender stereotype may correlate disproportionately with a particular sexual orientation, and plaintiffs who alleged discrimination on the basis of gender nonconformity will often also have experienced discrimination because of sexual orientation,” Circuit Judge William Pryor wrote. “But under Title VII, we ask only whether the individual experienced discrimination for deviating from a gender stereotype.”

Judge Robin S. Rosenbaum dissented, arguing that Blum was overruled by Price Waterhouse, which “substantially broadened the scope of actionable discriminatory stereotyping under Title VII.”

“Plain and simple, when a woman alleges, as Evans has, that she has been discriminated against because she is a lesbian, she necessarily alleges that she has been discriminated against because she failed to conform to the employer’s image of what women should be—specifically, that women should be sexually attracted to men only,” she wrote. “And it is utter fiction to suggest that she was not discriminated against for failing to comport with her employer’s stereotyped view of women. That is discrimination ‘because of … sex,’ and it clearly violated Title VII under Price Waterhouse.”

To read the decision in Evans v. Georgia Regional Hospital, click here.

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Paramedic Can Be Terminated for Social Media Activity

Why it matters

Can a paramedic be legally terminated for social media activity? Yes, the U.S. Court of Appeals for the Fourth Circuit has ruled, affirming summary judgment for the county that employed him. After some negative incidents involving social media, Howard County’s Department of Fire and Rescue Services promulgated a social media policy and issued a code of conduct. A battalion chief later posted on social media after watching a news segment on gun control, while on duty: “My aide had an outstanding idea … lets all kill someone with a liberal … then maybe we can get them outlawed too! Think of the satisfaction of beating a liberal to death with another liberal … its almost poetic.” The employee also engaged in other social media activity, including liking a response to his post that added “pick a black one, those are more ‘scary.’” as well as a post that questioned the chain of command at the station. After being fired for violating the social media policy and code of conduct, the battalion chief sued alleging that his First Amendment rights were violated. Although at least some of his activity touched on issues of public concern, the employer’s interest in workplace efficiency and preventing disruption outweighed the public interest commentary contained in his social media activity, the panel concluded.

Detailed discussion

Kevin Buker began his employment as a paramedic with Maryland’s Howard County Department of Fire and Rescue Services in 1997 and in 2012, he was promoted to the rank of battalion chief. The department had experienced some problems with employee use of social media and in response, drafted a policy and guidelines that prohibited personnel “from posting or publishing any statements, endorsements, or other speech, information, images or personnel matters that could reasonably be interpreted to represent or undermine the views or positions of the Department, Howard County, or officials acting on behalf of the Department or County.”

The department’s code of conduct further banned conduct or words that “are disrespectful to” or undermined the authority of the chain of command as well as public criticism of the department, county, or its policies.

In 2013, Buker was on duty and watching news coverage of a gun control debate, which prompted him to write a social media post: “My aide had an outstanding idea … lets all kill someone with a liberal … then maybe we can get them outlawed too! Think of the satisfaction of beating a liberal to death with another liberal … its almost poetic.” A few minutes later, another paramedic with the county replied with the comment: “But… was it an ‘assault liberal’? Gotta pick a fat one, those are the ‘high capacity’ ones. Oh … pick a black one, those are more ‘scary.’ Sorry had to perfect on a cool idea!” Buker liked the comment and replied, “Lmfao! Too cool!”

When the post was brought to the attention of the department chiefs, Buker was asked to review his social media activity and remove anything inconsistent with department policy. Though he maintained he was in compliance with all policies, Buker removed the post.

But he then added a new post: “To prevent future butthurt and comply with a directive from my supervisor, a recent post (meant entirely in jest) has been deleted. So has the complaining party. If I offend you, feel free to delete me. Or converse with me. I’m not scared or ashamed of my opinions or political leaning, or religion. I’m happy to discuss any of them with you.” In response to a comment on this post from a friend, Buker wrote, “Free speech only applies to the liberals, and then only if it is in line with the liberal socialist agenda.”

The department began an investigation to determine if Buker violated the social media policy and code of conduct. While that was ongoing, another member of the department posted a picture of an elderly woman with her middle finger raised with the caption, “THIS PAGE, YEAH THE ONE YOU’RE LOOKING AT IT’S MINE[.] I’LL POST WHATEVER THE F*** I WANT[.]” Above the image, the user wrote, “for you Chief.” Buker liked the image.

Buker was terminated based on his social media activity and he filed suit in response, alleging that he was retaliated against for exercising his First Amendment rights. A district court judge granted summary judgment in favor of Howard County and the U.S. Court of Appeals for the Fourth Circuit affirmed.

Applying a balancing test, the panel found the government’s interest in providing efficient and effective services to the public outweighed protecting the speech interests of Buker. His social media posts and likes did address some matters of public concern, the court acknowledged, as his initial post was allegedly a commentary on gun control legislation and his later comment was meant to reflect his concerns about First Amendment rights.

“Because the public has an interest in receiving the ‘informed’ opinions of public employees, it necessarily also has an interest in information about policies that circumscribe public employees’ speech and public employees’ opinions of such policies,” the court wrote. “However, we also acknowledge that some of the [social media] activity prompting plaintiff’s termination did not implicate matters of public concern,” such as Buker’s like of the image of the elderly woman raising her middle finger, which amounted to no more than an employee grievance.

With at least some of the plaintiff’s speech addressing matters of public concern, the court turned to whether Buker’s interest in speaking outweighed the department’s interests. “For several reasons, we conclude that the Department’s interest in efficiency and preventing disruption outweighed Plaintiff’s interest in speaking in the manner he did regarding gun control and the Department’s social media policy,” the panel wrote.

Buker’s social media activity interfered with and impaired department operations and discipline as well as working relationships within the department. For example, multiple African American employees complained to the county about the racial overtones of the “black” comment and several employees spoke out about how it seemed acceptable for battalion chiefs such as the plaintiff to violate the department policies.

In addition, Buker’s social media activity “significantly conflicted” with his responsibilities as a battalion chief, as his “actions led to concerns regarding Plaintiff’s fitness as a supervisor and role model, and concerns that Plaintiff’s subordinates would not take him seriously if Plaintiff tried to discipline them in the future.” His speech also frustrated the department’s public safety mission and threatened “community trust,” the court added, particularly in light of his post advocating for using violence to effect a political agenda.

Some of Buker’s speech expressly disrespected his superiors (such as his like of the elderly woman image) and the record was “rife with observations” of how the plaintiff’s social media activity upset the chain of command in the department. “In sum, we conclude the Department’s interest in workplace efficiency and preventing disruption outweighed the public interest commentary contained in Plaintiff’s social media activity,” the court concluded.

To read the opinion in Buker v. Howard County, click here.

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California Appellate Court Sends Employment Dispute to Arbitration

Why it matters

A California appellate panel disagreed with a former employee that an arbitration clause in her employment agreement was procedurally and substantively unconscionable, reversing a denial of the motion to compel arbitration. When Wilson Farrar was hired by Direct Commerce as a vice president of business development, she negotiated an employment agreement that was set forth in a six-page offer letter. The agreement had details about her compensation and stock options as well as an arbitration provision. Farrar later sued the employer for breach of contract and wrongful termination and Direct Commerce moved to compel arbitration pursuant to the agreement. A trial court judge denied the motion, ruling that the agreement was both procedurally and substantively unconscionable. But the appellate panel reversed. Procedurally, Farrar was not surprised by the arbitration provision and there was no evidence of oppression by the company, which negotiated with her over other terms. While the arbitration provision was one-sided because it excluded any claims arising from a separate confidentiality agreement Farrar also signed, that provision is “readily severable,” the court said. Ordering the provision severed, the court remanded the case to be sent to arbitration.

Detailed discussion

In November 2010, Wilson Farrar began discussions about joining Direct Commerce as vice president of business development. The company’s president sent her an initial draft of an employment agreement that outlined her job title, base salary, commission, and stock options, among other issues. The six-page letter also featured a paragraph titled “Arbitration” that appeared in the same font and graphic style as the other paragraphs and provided that arbitration would resolve any dispute “relating to your employment or its termination.”

Farrar continued to negotiate about her employment package, although she was led to believe that outside of the compensation details, the terms—such as arbitration—were non-negotiable. The parties reached a deal and Farrar signed the final agreement, which contained some changes from the draft, as well a confidentiality agreement.

Four years later, Direct Commerce terminated Farrar’s employment and she sued, alleging breach of contract and wrongful termination. Direct Commerce moved to compel arbitration. A trial court denied the motion, determining that the arbitration provision was both procedurally and substantively unconscionable. The employer appealed.

The appellate panel began with the issue of procedural unconscionability. “This case differs from many employment disputes where applicants for staff or lower level positions fill out a form employment application or are subsequently presented with a form employment agreement on a take-it-or-leave-it basis,” the court said. “Here we are dealing with a negotiated employment agreement for a top level executive who had extensive experience in sales and business development and held herself out as being experienced in contract negotiations.”

Although the parties were “roughly equal,” Farrar was not able to negotiate the terms of the arbitration paragraph, the court recognized, or the confidentiality agreement. In this respect, the agreement was adhesive but Farrar was still on notice about the arbitration provision, the panel said, as she received the offer letter before she reached the final employment agreement.

Finding “no evidence of ‘oppression’ or ‘sharp practices,’ on the part of the company,” the court said heightened scrutiny of the arbitration provision was not warranted.

Turning to substantive unconscionability, the panel found just one problem: a carve-out for claims related to the confidentiality agreement that provided a “wholesale exception” for the employer. The court also found a solution: severability.

“[T]he arbitration provision in the instant case is afflicted with only one substantively unconscionable provision, the exception for claims arising from the confidentiality agreement,” the court said. “This is not a case in which the arbitration provision is ‘permeated’ by unconscionability and, thus, would have to be ‘reformed’ in order to eliminate unconscionability.”

Instead, the court ordered the exception for claims arising from the confidentiality agreement to be severed and reversed the order denying the motion to compel arbitration.

To read the opinion in Farrar v. Direct Commerce, Inc., click here.

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Prohibition on Pins Violates NLRA

Why it matters

In-N-Out Burger, Inc. cannot prohibit employees from wearing buttons advocating for an increase in minimum wage payments, the National Labor Relations Board (NLRB) recently ruled. A manager at a Texas location of the fast food chain told a worker that the company’s dress code required him to remove a “Fight for $15” button while on the clock. Considering the employee’s charge that the application of the dress code violated the National Labor Relations Act (NLRA), an administrative law judge found no merit to the employer’s contention that its business plan necessitated all employees to dress alike. The Board affirmed that the company violated the NLRA when it enforced the ban and informed the worker to remove his pin. The Board also amended the remedy to nationalize it, requiring In-N-Out Burger to rescind any part of its dress code that prohibited workers from wearing unapproved buttons or insignia unless the rules make exceptions for buttons or insignia that pertain to wages, terms and conditions of employment, union support, and other protected activities.

Detailed discussion

In-N-Out Burger requires employees to adhere to a dress code that included a prohibition on wearing “any type of pin or stickers.” In April 2015, an employee at a Texas location wore a “Fight for $15” pin and was instructed to remove it. The worker filed a charge with the National Labor Relations Board (NLRB), arguing that the application of the dress code violated his rights under Section 8(a)(1) of the National Labor Relations Act by infringing on his exercise of Section 7 rights.

The employer admitted to requesting that the pin be removed, but argued that allowing employees to wear pins or insignias in violation of its dress code would detract from its image. The company’s brand identity hasn’t changed in decades, In-N-Out Burger said, including a plain uniform with “a limited number of specific identified elements” with employees directed they could not add or take away from the uniform. Permitting employees to wear an individualized pin would have a negative impact and prevent the company from furthering its business plan, the employer argued.

An administrative law judge (ALJ) disagreed. The employer had not established any special circumstance that would justify an exception to the rule that employees generally have a Section 7 right to wear buttons with messages related to a union or to terms and conditions of employment, the ALJ wrote.

In-N-Out Burger violated Section 8(a)(1) not only by maintaining the dress code policy prohibiting the wearing of all buttons and insignia except for those it approved or required, but also by requiring the removal of the “Fight for $15” button, the message of which related to a term or condition of employment, the ALJ found, limiting the scope of the remedies ordered to the Texas location.

The employer appealed to the National Labor Relations Board (NLRB) and the three-member panel unanimously affirmed. In-N-Out Burger presented insufficient “public image” evidence to render lawful its position that workers could not wear a “Fight for $15” button on their uniforms, the NLRB said.

Acting Chair Philip Miscimarra disagreed with the ALJ on several points, however. For example, the ALJ noted that In-N-Out Burger permitted the wearing of pins in certain circumstances, with “Merry Christmas” pins added to the uniform during the holidays as well as a button seeking donations to the In-N-Out Foundation each April. The ALJ found that by permitting the wearing of some pins, the employer “casts some doubt on any claim that special circumstances require the employee’s clothing to be button free.”

Not so, the Acting Chair wrote. “[W]hen the Board evaluates the legality of a restriction on buttons and pins, an employer’s ‘public image’ can legitimately recognize certain holidays or charities without diminishing the importance of the public image to the employer’s business.”

The entire panel also tweaked the ALJ’s order, finding he erred by declining to give it nationwide application. The parties stipulated that the employer’s dress code policy applied to employees at all of In-N-Out’s more than 300 restaurants and the employer repeatedly emphasized the importance of consistency from store to store. Accordingly, the NLRB modified the order to apply nationwide.

In-N-Out must cease and desist from “maintaining and enforcing a rule that prohibits employees from wearing, while on duty, any button or insignia apart from those it has approved, and that makes no exception for buttons or insignia pertaining to wages, hours, terms and conditions of employment or union or other protected activities,” the Board directed. Employees nationwide must be notified and provided with inserts for the current employee handbook reflecting the policy rescission.

To read the decision and order in In-N-Out Burger, Inc., click here.

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FMLA Retaliation Claims Don’t Require Direct Evidence, Third Circuit Rules

Why it matters

Direct evidence of retaliation is not required for a plaintiff to claim retaliation in violation of the Family and Medical Leave Act (FMLA), the U.S. Court of Appeals for the Third Circuit has clarified. Joseph Egan’s complaint against the Delaware River Port Authority alleged that he was fired in part because he took FMLA leave for his migraines. At trial, the district court required Egan to present direct evidence of retaliation and a jury found in favor of the employer. On appeal, the Third Circuit held that the jury should have been given instructions on a mixed-motive case. The panel relied in part upon on the Department of Labor’s (DOL) FMLA regulations, finding they embodied a permissible construction of the statute. “The DOL’s interpretation is consistent with the purposes of the FMLA, which include ‘entitling employees to take reasonable leave for medical reasons’ without interference,” the panel wrote. A concurring opinion took the opportunity to advocate for reconsideration of the deference accorded to federal agencies.

Detailed discussion

Hired as a Projects Manager for Special Projects, Joseph Egan worked at the Delaware River Port Authority from 2008–2012. He had suffered from migraines since a 1995 accident and when they increased in frequency, he applied for intermittent Family and Medical Leave Act (FMLA) leave in early 2012. The Port Authority granted the leave but issues arose by the summer about the number of hours Egan was reporting.

While on a period of FMLA leave, Egan was informed that his position was being eliminated. He filed suit alleging violations of the Age Discrimination in Employment Act, Americans with Disabilities Act, and the FMLA. The case proceeded to trial and Egan sought a mixed-motive jury instruction for his FMLA retaliation claim.

The district court denied the motion, holding the instruction was not warranted because Egan had not presented direct evidence of retaliation. The jury returned a verdict for the Port Authority on all counts. Egan appealed, arguing that he should have been allowed a mixed-motive jury instruction for his FMLA claim.

Reversing, the U.S. Court of Appeals for the Third Circuit agreed. Liability for FMLA retaliation claims is premised upon regulations from the Department of Labor (DOL), the panel explained, an interpretation that embodies a permissible construction of the FMLA requiring deference pursuant to the standard found in the 1984 U.S. Supreme Court opinion Chevron v. Natural Resources Defense Council.

The FMLA itself provides that it is “unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided in this subchapter,” including the right to seek and to use FMLA leave. The statute also makes it “unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter.”

However, the statute does not specifically provide for a retaliation claim, the Third Circuit noted. In promulgating regulations for the FMLA, the DOL said the statute prohibits retaliation, and given the purposes of the FMLA, the panel agreed that this was a “reasonable interpretation” of the law.

“To allow an employer to take an adverse employment action against an employee who takes FMLA leave would ‘undoubtedly run contrary to Congress’s purpose in passing the FMLA,’” the court wrote. “Thus, the regulation prohibiting retaliation for exercising FMLA rights is consistent with Congress’s goal of enabling workers to address serious health issues without repercussion.”

Both the Sixth and Ninth Circuits have reached a similar conclusion.

Under the regulation, employers are prohibited from considering an employee’s FMLA leave as a negative factor in employment decisions and an employee does not need to prove that invoking FMLA rights was the sole or most important factor upon which the employer acted, the court said. This standard—that leave was a “negative factor” in the adverse job action as opposed to the but-for cause of the action—is also reasonable, the panel found.

Congress has endorsed the use of a lessened causation standard in Title VII’s anti-discrimination provisions, the court noted, reflecting “a view that consideration of any of the protected characteristics set forth in the statute, namely race, color, religions, sex, or national origin, is never permissible, even if it is not the sole reason for the employment decision. Similarly, in enacting the FMLA, Congress chose to ensure that those who need to address health issues may do so without interference. The regulation precludes an employer from considering the use of such leave as a negative factor in an employment decision.”

The DOL’s choice to use the negative factor standard is consistent with the goals of the FMLA and the regulation’s mixed-motive approach is a permissible construction of the statute, the Third Circuit found. As for an evidentiary threshold to obtain a mixed-motive instruction for a FMLA retaliation claim at trial, the panel said the Supreme Court has made clear that direct evidence is not required to proceed under a mixed-motive theory of liability.

While the justices’ holding was found in the Title VII context, federal appellate courts have applied the position in other contexts including the Federal Rail Safety Act as well as the FMLA, including the First, Seventh, Ninth and Tenth Circuits. Joining these courts, the Third Circuit ruled that Egan was not required to produce direct evidence to receive a mixed-motive instruction.

“Rather, in response to the request for the instruction, the court should have determined whether there was evidence from which a reasonable jury could conclude that the Port Authority had legitimate and illegitimate reasons for its employment decision and that Egan’s use of FMLA leave was a negative factor in the employment decision,” the panel wrote.

The court vacated the FMLA judgment in favor of the employer and remanded the case.

One member of the panel wrote separately in a concurrence that advocated for reconsideration of the deference accorded federal agencies by the Chevron doctrine. The standard runs “contrary to the roles assigned to the separate branches of government,” “embed[s] perverse incentives in the operations of government,” “spreads the spores of the ever-expanding administrative state,” and “requires us at times to lay aside fairness and our own best judgment and instead bow to the nation’s most powerful litigant, the government, for no reason other than it is the government,” according to the concurrence.

To read the opinion in Egan v. Delaware River Port Authority, click here.

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