Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

While I was on trial last month, a Second Circuit decision on Associational Discrimination slipped by.  Fortunately, the Delaware Employment Law Blog picked up the slack here.

The obvious question that arises first is: What is Associational Discrimination?  Well, most discrimination cases arise when the employee has a "protected characteristic" such as his or her race or gender, and has had some type of employment action taken against him or her. But suppose the employer took action not because of the color of the employee's skin, but because of the color of the skin of  the employee's spouse.  That, the Second Circuit, has ruled, may violate federal anti-discrimination laws. 

The case, Holcomb v. Iona College (decided April 1), arises from the firing of the former assistant basketball coach at Iona College.  The school allegedly fired him for performance reasons.  He claimed that various college officials made derogatory comments about his wife -- who is Black. 

The court’s discussion set forth the associational discrimination analysis. Here is the three-part review, as summarized by the Delaware blog:

1. Protected Class. The Court held that Holcomb was a member of a "protected class" under Title VII. Although Holcomb was not Black, his wife was, and there was evidence that his interracial marriage was the reason for his termination.
   
2. Interracial Association. The Court reasoned that, "where an employee is subjected to an adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee’s own race." All the district judges in this circuit to consider the question, including the district court in this case, have reached that conclusion."
   
3. Pretext Evidence. As noted above, there was plenty of evidence from which the Court could conclude that the reasons given for Holcomb’s termination were a mere pretext for race-based discrimination. Another piece of evidence to support Holcomb’s claim was that O’Driscoll, the white staff member who replaced Holcomb, was the only white member of the staff without a Black girlfriend or wife.

What's the takeaway from this case? Claims based on associational discrimination represent another type of claim that can be raised.  Is it the start of a trend? It's really much too early to tell, but other circuits have recently ruled on the theory as well. Employers should be sensitive to this type of claim.  With interracial marriages and interfaith marriages becoming increasingly common, derogatory remarks about employees' spouses should be and must remain be off-limits at work.  Maintaining and enforcing sensible human resource policies may be all that's required for most companies, but each company should consider making its own assessment about whether associational discrimination claims are a higher risk to them.. 

(H/T Wait a Second).

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For non-exempt employees (in other words, those employees eligible for overtime), a common question is whether an employee should be paid for commuting time.  The answer to that question is typically no.

Now suppose the employee carries their work files in a briefcase to and from work, does that change the analysis? According to a recent Second Circuit decision (which covers employers in Connecticut, New York and Vermont), the answer is still no.   In doing so, the Second Circuit in Singh v. City of New York has clarified the limited circumstances when an employee may be paid for their commuting time. 

When is that? Well, under the Fair Labor Standards Act (FLSA), the employee must engage in work for the employer's benefit at the employer's request, in order for commuting time to be compensable.  In addition, if an employer's policies increase that commuting time by a trivial amount, the employee is still not entitled to be paid under the FLSA.  

When is work required during a commute? When the employee's work during that time is integral and indispensable. It typically depends on whether the time is spent predominantly for the benefit of the employer ("predominant benefit test"). For commuting, the Second Circuit indicated that the:

appropriate application of the predominant benefit test is whether an employer's restrictions hinder the employees' ability to use their commuting time as they otherwise would have had there been no work-related restrictions.

For employers, and particularly with the addition of BlackBerrys, this case emphasizes that the employer should review its policies and practices to ensure that commuting time remains non-compensable.  In particular, the employer can emphasize that non-exempt employees should not perform work during their commute. 

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It's just a little bit ironic that on this Good Friday, the Second Circuit decided a case that will be very important to religious institutions in Connecticut, New York and Vermont.  Ultimately, it held that Title VII -- which, among other things, prohibits discrimination based on race -- is unconstitutional when applied to certain religious institutions, thereby confirming the existence of the "ministerial exception."

In Rweyemamu v. Cote (download here) , the Second Circuit decided an issue of first impression here.  As the court noted, "This court has had no prior occasion to confirm the existence of the ministerial exception, and rarely an opportunity to discuss its scope."

And upon reflection, the court held, "we affirm the vitality of that doctrine in the Second Circuit. In our view, the ministerial exception is constitutionally required by various doctrinal underpinnings of the First Amendment." 

The case arises from a lawsuit brought in Connecticut against the Roman Catholic Diocese of Norwich. The Plaintiff, claimed that its Bishop, misapplied canon law in denying him a requested
promotion and, ultimately, in terminating him.   Father Justinian Rweyemamu, an African-American Catholic priest, claimed racial  discrimination in a Title VII suit against the Bishop and the
Diocese.

For any religious institutions in the state, this case should now be required reading and required consideration when faced with any employment-related decisions.  The amount of protection that this exception offers -- while not absolute -- is significant.  When my trial ends, I hope to provide more information about it, but for now, its worth taking a look at.

For those curious, both sides had notable Connecticut attorneys.  The Plaintiff was represented by Norm Pattis, who has an amusing blog here as well as a weekly column in the Law Tribune.  And, on a personal note, I used to work with Meredith Diette, who successfully represented the defendants in this case and wish her congratulations on the results she achieved for her client.

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The sad reality is that, on rare occasion, some employees will revert back to their middle school days and behave like a couple of children. Some will even resort to physical fighting. In such a case, employers are faced with a difficult question -- can I punish one employee more than other if I think they "started" it?

The answer has not always been as clear as you'd like in Connecticut.  Indeed, earlier this month, I commented about a case where the employer punished both employees -- and was still subject to a discrimination claim.  But the Second Circuit provided some helpful guidance to employers and suggests that not all fights need to be treated the same. 

The Second Circuit yesterday released an interesting "summary order" (being it is not "binding precedent") that tackles the subject even further.  In Mincey v. University of Rochester (download here), the Court was faced with an age discrimination claim by a former employee who was terminated for her role in an altercation with a younger co-worker, who was not. 

The employer moved for summary judgment on the claim arguing that the termination, which resulted from determining that the Plaintiff was the instigator, in an altercation, did not give rise to an inference of age discrimination.  The lower court granted the employer's motion and the employee appealed.

At first, it appears that the court is going to overrule the District Court's decision. Indeed, it concludes that the district court erred in finding that the employee was not terminated under circumstances giving rise to an inference of discrimination:

Although it is true, from the record, that Mincey admitted to striking [her co-worker], the record also demonstrates that she consistently stated that she had struck [her co-worker] only after he had struck her with his index finger. Taking the evidence in the record in a light most favorable to Mincey, her contention that [her co-worker] hit her first is sufficient to demonstrate that her termination gave rise to an inference of discrimination.

But the court quickly shoots down the employee's claim that her evidence was sufficient to send the case to trial because it found that the employer's decision was not false or "pretextual".

[E]ven if the conclusion made by the Hospital after its investigation was incorrect-- even if [the co-worker] did actually strike Mincey first -- so long as  that conclusion was the “actual purpose” for her termination, Mincey’s age-discrimination claim fails. An incorrect conclusion, while unfortunate for Mincey, does not constitute age discrimination.

Notably, for employees and their counsel, the case does highlight two arguments that could have been made that might have helped the employee's cause -- but were not. 

For example, the court notes that "Mincey offered no evidence that the investigation was improperly conducted for the purpose of providing a pretextual explanation for an otherwise discriminatory termination." The court also notes that plaintiff did not offer evidence "to suggest that other employees who had struck their coworkers had not been terminated by the [employer], or to rebut the [employer's] evidence that it uniformly terminated employees for fighting. "

The case shows that for employers, a consistently applied disciplinary policy will assist the employer in defending against discrimination cases.  It also reinforces the notion that were an employer conducts an investigation before terminating employees, that investigation should be thorough enough to withstand some criticism.  The case highlights the fact that employers should not be afraid to treat employees in a fight differently, but should be prepared with a good reason for doing so.

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Suppose an employee takes maternity leave from a position. Due to health complications, that leave is extended multiple times (past the 12 or 16 weeks required under FMLA or CT FMLA).  The employee remains an employee pursuant to a short-term disability plan. When the employee is ultimately medically cleared to work, does the employer need to reinstate the employee?

An summary order (i.e. an opinion that is NOT binding in future cases) from the Second Circuit this morning suggests that the employer does not need to reinstate the employee and that the employer's actions do not violate Title VII. 

The Second Circuit in Infante v. Ambac Financial Group, suggests that this is a fairly easy call:

[The employer] avers that it could not rely on the possibility of [the employee]’s return from her leave because she had repeatedly extended her anticipated dates of return-- sometimes on one or two business days’ notice. [The employer] thus faced uncertainty about when, if ever, [the employee] would return, as well as the increasing work demands of [employee]’s former accounting unit. After [the employee] had extended her return date by more than six weeks, [the employer] decided to interview replacements. As of that time, [the employee]’s leave of absence was outside the scope of the twelve-week job protection provided by the Family and Medical Leave Act, 29 U.S.C. § 27 2612 (“FMLA”). [The employer]’s short-term disability leave policy contains no similar job protection provision.

So [the employer] was under no legal or contractual obligation to hold [the employee]’s job open for her, and was entitled to interview (and hire) replacement candidates whom it deemed more qualified for the role.

The opinion suggests that courts will not be afraid to read the statutory limits on protected leave strictly; 12 weeks under FMLA is 12 weeks -- not 20.  And for employers, the case is a good reminder that upon expiration of FMLA leave, the employer can and should explore filling open positions as business needs dictate.

That said, there are -- of course -- cautionary notes. For example, this case does not address the trickier issue of whether a disabled worker out on leave is allowed to have extended leave as a "reasonable accommodation" under the ADA.  Thus, whenever employees are out on extended leave, an employer should review all the laws that may apply (not simply FMLA) to ensure their compliance with various legal obligations.  Also, employers should also review their internal policies to ensure that they are following what their policies say about leaves of absences.

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For the second time in two days, the Second Circuit has reversed a lower court's dismissal of an employment claim.

This time, in Patane v. Clark, released today, the Second Circuit reversed an decision granting a motion to dismiss a claim of sexual harassment claim.  The takeaway from the case today is that the mere presence of pornography in the workplace -- even if never viewed directly by the plaintiff-employee -- may be sufficient to state a claim of sexual harassment (and that the District Court was wrong to dismiss such a claim without even allowing the parties to conduct discovery).

The Court's key finding is summarized in this section:

Specifically, the district court concluded that Plaintiff failed to allege that she faced an objectively hostile work environment, “because [she] never saw the videos, witnessed [her supervisor] watch the videos, or witnessed [her supervisor] performing sexual acts.” Patane, 435 F. Supp. 2d at 316. However, Plaintiff does allege that she regularly observed [him] watching pornographic videos. This Court has specifically recognized that the mere presence of pornography in a workplace can alter the “status” of women therein and is relevant to assessing the objective hostility of the environment....

Moreover, Plaintiff alleges that she was regularly required to handle pornographic videotapes in the course of performing her employment responsibilities of opening and delivering [her supervisors] mail; and that she once discovered hard core pornographic websites that [he] viewed on her workplace computer. Combined with Plaintiff’s other allegations regarding [his] sexually inappropriate behavior in the workplace, including her allegation regarding his earlier harassment of [another employee], and with [the employer’s] failure to take any action notwithstanding Plaintiff’s numerous complaints, a jury could well conclude that Plaintiff was subject to frequent severely offensive conduct that interfered with her ability to perform her secretarial functions.

This case is yet another reminder to employers to: 1) be vigilant about preventing pornography in the workplace; and 2) to investigate all claims seriously.  I discussed this in yesterday's post, but the Second Circuit's message to employers should be loud and clear -- investigate all claims of gender discrimination and harassment; failure to do so will leave the employer susceptible to such claims in the future.  This decision is a full published decision and can be cited in future cases.

The case is also a reminder to bolster any internet firewalls to prevent access to pornographic websites from the workplace.  Even if another employee never views the pornography directly, its presence (and tacit allowance by an employer) could be used as the basis for a hostile work environment claim.

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Summary Orders (in other words, decisions with no precedential value) by the Second Circuit typically are not worth noting. However, a decision released today is telling for the court's view of race and gender discrimination cases and it can be cited by parties under certain limitations.

In Williams v. Consolidated Edison of New York, the court reversed a lower court's decision granting summary judgment to the employer on race and gender harassment grounds.  While the court may have been skeptical of the claims, it found that the amount of evidence presented by the Plaintiff -- if believed -- could support a claim of racial and gender harassment.

In approximately three years at the company: (1) one supervisor..., referred to Williams as a “black b****” on more than one occasion and ... another supervisor,
referred to her as a “b****”; (2) [one supervisor] directed gender-based verbal abuse at Williams...; (3) [one supervisor insinuated that Williams and [another employee] were having a sexual relationship; (4) several male co-workers repeatedly used offensive and derogatory terms for women, such as “b***” and “c***”; (5) women encountered pornographic materials in the workplace on at least several  occasions; (6) Williams and [another employee] experienced tampering and sabotage of their equipment; (7) male co-workers were unwelcoming to women and commented that they did not belong in the Brooklyn Flush unit; (8) male workers sought to avoid shifts with women and supervisors would honor their requests; (9) at least one employee made comments to the effect that supervisors should let the men know when women were menstruating; and (10) women were not provided with adequate locker room facilities for months, until October 2001, although the men were. In addition, one of Ms. Williams’s coworkers... states that she, too, was sexually harassed, including that she was called a “b**” and a “cunt” on a regular basis, that supervisors ignored her complaints about this verbal
abuse, and that one supervisor threatened to suspend her from her job if she continued to complain.

Obviously, as readers of this blog know, these allegations are merely that -- allegations.  But the language used here and the different types of harassment alleged, was obviously more than enough for the Second Circuit to reverse.

The Court also addressed the employer's response to co-worker harassment:

Whether Con Ed’s response to Williams’s complaints about a sexually and racially hostile work environment — and the information it obtained in the process of investigating her complaints — constituted “appropriate remedial action” is subject to reasonable dispute on the record before us. During the first human resources investigation into Williams’s complaints in 2002, several of Williams’s co-workers verified her allegations that men sought to avoid working with women and supervisors honored their requests and that African-American employees were sent more frequently to high-crime neighborhoods. Yet inexplicably, the report summarizing the investigation did not discuss these co-worker accounts in reaching its conclusion that there was no record of discriminatory work assignments. Given the information that Con Ed received during its investigation and the absence of anything in the record indicating whether Con Ed followed up on this information, a reasonable juror could find that Con Ed failed to take prompt and appropriate remedial action in response to substantiated allegations of sexual and racial hostility in the workplace.

It's easy to look back on this case and point out that the employer should've done more.  And indeed, an investigation that may look thorough at the time, can appear to be incomplete given a the context later on.  However, the case is a further illustration about the importance of conducting a thorough investigation when complaints of harassment are made and detailing that investigation in a written report.  Whether that still would've been enough here is questionable but it might have helped. 

Moreover, when a second complaint was made by Williams and investigated until Williams said she was too "stressed" to continue, the court found that this second investigation was also subject to dispute and the employer may not have done enough.

When Williams complained a second time to human resources about being subject to a sexually hostile work environment, the human resources officer closed his investigation after speaking only to Williams’s supervisor. That action was based in part on Williams’s decision not to follow up with him because she was “too stressed.” A reasonable fact-finder could conclude this second investigation was a perfunctory and inappropriate response to Williams’s hostile work environment allegations, which Con Ed arguably should have investigated regardless of whether Williams had the time or the energy to pursue it further.

This illustrates the importance of continuing a sexual harassment investigation to its conclusion -- regardless of whether a complainant later refuses to cooperate or asks that the investigation be conducted in private. The court's decision suggests that employers have an independent and affirmative obligation to investigate claims of harassment, regardless of the complainant's wishes, once it is made aware of them

What is also notable about the case is that the court affirmed summary judgment to the employer on the retaliation claims finding them either time-barred or without merit.  In essence, the court found that the reasons given by the employer for the discipline of the employee were legitimate. 

Williams admitted that she made statements referring to the possibility of driving a truck into the trailers of the Brooklyn flush facility and to going “postal” at work — comments that invoke images of violence against her superiors and that could be understood as veiled threats. Furthermore, three coworkers reported that those comments were even more explicitly threatening than Williams admitted. Based on its zero tolerance policy of violence or threats of violence in the workplace, [the employer] took disciplinary action.

It's unfortunate that this case cannot be cited for precedent because it speaks to some issues that could use further clarification by the Second Circuit. But employers and in-house counsel can still take the lessons of the case to heart.

(H/T - Wait A Second!)

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