Tuesday, September 3, 2013

Looking For a Job in NJ? Don't Worry - Your Facebook Password is Safe.

Last Thursday, New Jersey Governor Chris Christie approved a new law that prohibits private employers in the Garden State from requiring job applicants to disclose their social media usernames and passwords as a condition of getting a job.  The new law carries with it civil penalties of up to $1,000.00 for the first violation and $2,500.00 for all subsequent violations and does not allow applicants to waive the protections afforded them by the legislation. 

But, before all you job-seeking N.J. readers out there throw your hands in the air and go buck-wild on Facebook, be careful.  The new law does not prevent potential employers from: (1) asking whether you have a social media account; or (2) searching for and viewing anything on your social media pages that is accessible to the public. 

So, this new law notwithstanding, it is still a good idea to think before you Tweet.  Your new job might still depend on it.  

Friday, July 5, 2013

When You Should Put "Brazilian Waxed" On Your Resume.

How many times have you been told that your employment prospects hinge upon the style of your under-there-hair?  Well, this woman's did... No Brazilian Wax? No Job!

Jennifer Finley is now suing for sexual harassment and discrimination, arguing that her employer unlawfully tried to force her into baring her genitals for cosmetic alteration by her co-workers and required her to give a Brazilian Wax to one of her co-workers, as well.

Putting aside the fact that her employer was called the "European Wax Center" (and we all know those wacky Europeans have different attitudes about ones' nether-regions), what do you think about Jennifer's lawsuit?  Do you think what she was asked to do constitutes unlawful sexual discrimination or harassment?

Monday, June 24, 2013

Think You Were Retaliated Against? Better Be Sure.

In the world of employment law, retaliation claims are often thought of by many attorneys as the most important or critical aspect of discrimination claims.  Many times, an aggrieved employee can wind up being successful on his/her claims for retaliation even when his/her claims for discrimination or harassment have come up short.  We may see that trend start to change, however. 

Today, in the case of University of Texas Southwestern Medical Center v. Nassar (here), the U.S. Supreme Court held that in order to be successful for a claim for retaliation under Title VII, the employee has to prove that retaliation was the "but for" cause of the adverse employment action.  What does this mean in real life?  Essentially, a plaintiff-employee who claims that his/her employer retaliated against the employee for engaging in protected activity under Title VII, or for filing a charge of discrimination against the employer, must now be able to convince a jury that it was the plaintiff's activities, and not some other reason or issue, which prompted the employer to take the action it did.  Unlike a claim for discrimination, in which an employee can prevail by showing that the employer's adverse action was simply motivated by discriminatory animus or by the employee's protected trait, an employee arguing retaliation will have to persuade a jury that no other factors prompted the employer's decision to fire, demote or otherwise discipline the employee.

In other words, for employees who believe they are or have suffered retaliation by their employers for engaging in protected activity, the hill to climb just got a little bit steeper.  

Who's the Boss?

If you were asked to identify who is your "supervisor" at work, I'm sure that many of you would do so quickly, without much hesitation or thought.  In fact, you many even name more than one person, as you might work in the type of "Office Space," environment where you have ten or twelve different "bosses."  

But, you may be surprised to find that those individuals who you may consider to be your "supervisors" during your day-to-day job, are not your "supervisors" for purposes of workplace discrimination.  Or, at least, so says the U.S. Supreme Court. 

Today, in a narrow 5-4 decision in the case of Vance v. Ball State (here), a majority of the U.S. Supreme Court held that a "supervisor," as referred to in the context of Title VII (the federal law that prohibits employment discrimination and hostile work environments), is narrowly defined as an individual who is "empowered by the employer to take tangible employment actions against the victim. . ."  In plain English, this means that in Title VII employment cases, a "supervisor" is now limited to only those individuals who have the power or authority to fire, demote or otherwise discipline the employee who complains of discrimination or harassment.  This decision eliminates from that group those people who may have the power and authority to control and direct an employee's everyday tasks or assignments at work, but who lack any disciplinary ability. 

So, take a minute to think again about the question I asked at the beginning of this article.... Has your list changed at all?  I bet it probably did. 

Wednesday, May 23, 2012

"Too hot" for work?

Is this sexual harassment or sex discrimination at a New York lingerie store?  You be the judge.  Click below to view the video and drop me a comment to let me know what you think.

Wednesday, February 1, 2012

"Split Happens:" 3rd Circuit Finds Supervisors at Public Agencies Can Be Personally Liable for FMLA Violations

Yesterday, in the case of Haybarger v. Lawrence County Adult Probation and Parole, the Third Circuit Court of Appeals determined, for the first time in this Circuit, that supervisors who work at public agencies can be held personally liable for violations of the Family and Medical Leave Act (FMLA).  


The facts of this case and the analysis employed by the Court in reaching its decision are not overly exciting.  In short, Debra Haybarger worked as an office manager for Lawrence County Adult Probation and Parole, and suffered from Type II diabetes, heart disease and kidney problems.  Her health problems forced her to miss work often for medical appointments, and the Director of the Adult Probation and Parole, William Mancino, expressed dissatisfaction with Haybarger's frequent illness-related absences.  Mancino informed Haybarger that she needed to "cut down" on the days she was taking off and began to ask her why she needed to visit the doctor so much.  Haybarger was then formally disciplined by Mancino for her frequent medical absences and eventually terminated by the Adult Probation Office on Marcino's recommendation.  Haybarger then sued Lawrence County, Lawrence County Adult Probation and Parole and Marcino for various employment law violations, including the FMLA. 


After a complex procedural history, which saw many of Haybarger's claims dismissed, Marcino sought to have Haybarger's FMLA claims against him dismissed as well, arguing that the statutory language of the FMLA did not allow for personal liability.  After engaging in a thorough (and none-too-thrilling) parsing of the operative statutory language that defines who is an "employer" under the FMLA, the Third Circuit concluded that this definition includes an individual employed by a public agency who (1) exercises supervisory authority over a complaining employee and (2) was responsible, either in whole or in part, for the alleged FMLA violation.  The Third Circuit then examined the specific facts in this case and concluded that enough evidence existed to allow a jury to conclude that Marcino fit this definition as it related to Haybarger. 


What really makes this case interesting and important (aside from the fact that this issue had never been decided by the Third Circuit before), is that it widens a Circuit-split that previously existed on this question.  In its decision, the Haybarger Court noted that the Sixth and Eleventh Circuits had already arrived at the opposite conclusion - that the FMLA does not permit individual liability for supervisors at public agencies.  Additionally, the Eleventh Circuit has similarly held that there is no individual liability for public officials under the FMLA because "an individual officer lacks sufficient control over an employee's employment."  The Haybarger Court, however, rejected these rationales and instead chose to follow the lead of the Fifth Circuit, which had previously concluded that individual liability under the FMLA can attach to supervisors at public agencies.  


So, we now have at least three Circuits finding no grounds for individual public supervisor liability, and at least two that have taken the opposite tack.  With that schism, it seems likely (if not inevitable) that the U.S. Supreme Court will now have to take up this question and determine it once and for all.  As they say in show business, "stay tuned folks... there's more after this."


You can read the full Third Circuit opinion in Haybarger v. Lawrence County Adult Probation and Parole here: http://www.ca3.uscourts.gov/opinarch/103916p.pdf

Thursday, January 12, 2012

US Supreme Court: First Amendment Bars Discrimination Suits By Ministers Against Religious Employers

Yesterday, in the case of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the U.S. Supreme Court, for the first time, adopted and sanctioned the "ministerial exception" rule that has been utilized by the Federal Courts of Appeals for 40 years, which provides that the Free Exercise and Establishment Clauses of the First Amendment prohibit ministers, priests, and other religious individuals from suing their ecclesiastical employers for employment discrimination.  In short, the Court held that the First Amendment's prohibition on the government's establishment of religion and its guarantee of free exercise and worship prohibit such lawsuits because religious organizations are free to choose which ministers they want to lead and guide their congregation, without interference or the threat of forced-reinstatement or monetary damages imposed by the courts or the government. 


This case centered around Cheryl Perich, who was a "called" teacher of students from kindergarten to eighth-grade for the Hosanna-Tabor Church.  The Church has two categories of teachers that it employs: "called" teachers and "lay" teachers.  "Called" teachers are required by the Church to complete certain academic requirements, including an eight-class course of theological study at a Lutheran college or university, an endorsement of the teacher's local Church district, and the successful passage of an oral examination by Church faculty.  Once these requirements are met, the teacher may be "called" by the congregation, upon which the teacher formally receives from the Church the title of "Minister of Religion, Commissioned."  "Lay" teachers, on the other hand, are not required to be Lutheran or to be trained by the Church.  The Church only appoints "lay" teachers when no "called" teachers are available. 


Perich, as a "called" teacher, had completed all of the above requirements, and taught both religious and secular curriculum to her students at the Church.  Her duties also involved activities such as leading students in prayer exercises daily, attending weekly school-wide chapel services and even leading those chapel services approximately twice each year.  


In June of 2004, Perich was diagnosed with narcolepsy, and began the 2004-2005 school year on disability leave.  On January 25, 2005, Perich notified the school principal that she was ready to return to work.  The principal, however, informed Perich that the school had already contracted with a "lay" teacher to fill Perich's position, expressing concern that Perich would not be able to return to the classroom.  On January 30, the Church held a congregation at which the school's administrators concluded that Perich was physically unable to return to her job either that school year or the next, and requested that Perich resign from her position as a "called" teacher. 


Perich refused to resign and produced a note from her doctor indicating that she would be physically able to return to work on February 22, 2005.  On that date, Perich arrived at the school and the principal asked her to leave.  Later that day, the principal telephoned Perich and told her that she was likely going to be fired.  Perich responded that she had contacted an attorney and intended to pursue her legal rights. 


On April 10, 2005, a congregation of the Church was convened, and voted to rescind Perich's call in light of the "regrettable" actions that had occurred in February.  The next day, the school board terminated Perich's employment on the grounds of "insubordination and disruptive behavior," and because of the damage she had done to her "working relationship" with the school by "threatening to take legal action."


Perich then filed a Charge of Discrimination with the EEOC, alleging that she had been terminated from her employment in violation of the Americans with Disabilities Act (ADA).  Perich claimed that the Church had unlawfully retaliated against her for threatening to file a lawsuit under the ADA in February of 2005.


In a unanimous 9-0 decision, the Supreme Court held that Perich's suit, which originally sought reinstatement to her position as a "called" teacher, or alternative damages for back-pay, front-pay and punitive damages, was barred by the First Amendment's ministerial exception.  Chief Justice John Roberts, in writing for the Court, engaged in detailed examination of the history and origination of the First Amendment's Free Exercise and Establishment Clauses, and found that they had been adopted against the backdrop of the British Crown's historical interference and control over the appointment of ecclesiastical ministers.  


The Court also noted that its own past decisions have reinforced the rule that governmental actions that have the effect of contradicting or interceding in a religious organization's decision as to who shall serve as a minister and under what conditions or circumstances, are unconstitutional under the First Amendment.  The same holds true, the Court concluded, with employment discrimination actions brought by ministers against their former religious employers.  The Court held that: "[r]equiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision.  Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.  By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group's right to shape its own faith and mission through its appointments."


Finding that Perich was clearly a minister under the facts and circumstances surrounding her acceptance as a "called" teacher, and the fact that both Perich and the Church had held her out to the public as a minister during the years of her employment, the Supreme Court dismissed Perich's claim for retaliation under the ADA as unconstitutional. 


You can read the Supreme Court's full opinion in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC here: http://www.supremecourt.gov/opinions/11pdf/10-553.pdf

Friday, October 14, 2011

Filming Co-workers In Partial State of Undress is Bad.... In Case You Didn't Know

In the legal world, common sense and the law do not always go hand-in-hand.  Sometimes what seems practically logical or predictable will not be legally sustainable (or vice-versa).  But, on those rare occasions when the law and common sense can exist side-by-side without destroying each other like sparring gladiators, it can be refreshing. 

This is one of those moments.  In the recent case of Jane Doe v. Luzerne County, the Third Circuit Court of Appeals reversed a trial court's dismissal of a claim brought by a deputy sheriff who alleged that her supervisors and co-workers in the Luzerne County Sheriff's office violated her Right to Privacy under the Fourteenth Amendment when they surreptitiously videotaped her partially nude, showed the video and still photographs to other co-workers in the department, and then stored the files on a county computer where any county employee who had access to the network could find and view them.  The district court had thrown out Jane Doe's Right to Privacy claim, finding that while the actions of Doe's supervisor and co-worker in making the video, were "likely ill-conceived and definitely poorly executed," they did not "fall within the zone of privacy protected by the Fourteenth Amendment." (Yes, you read that correctly). 

One day, Jane Doe, a Luzerne County deputy sheriff, and her partner entered a residence to serve a bench warrant, only to discover the inside of the residence strewn with garbage and at least one dead animal (a cat)  observed on the floor.  Doe and her partner soon found themselves crawling with fleas.  They radioed back to the Sheriff's Department for instructions on how to handle the flea exposure, and were told to proceed to a local Emergency Management Building (EMB), and wait there in their police cruiser until EMB personnel could construct a temporary decontamination shower and until their supervisors arrived.

After arriving at the EMB, Doe and her partner were met by Arthur Bobbouine, Chief Deputy of the Department and Deputy Ryan Foy, both of whom were Doe's supervisors.  Foy brought a video camera and immediately began to film Doe and her partner, who were still sitting in their police cruiser with the windows rolled up.  Foy testified that he was videotaping the proceedings for training purposes, and both Bobbouine and Foy instructed Doe and her partner that they had to remain inside the cruiser until the decontamination shower was constructed.  

Unfortunately, the EMB personnel were unable to construct the decontamination shower, so Bobbouine instructed Doe and her partner to drive to a nearby hospital, which was equipped with a decontamination facility.  After getting to the hospital and sitting in the cruiser for another forty-five minutes (as ordered), Doe finally entered the hospital with Foy videotaping her the entire way.  Doe testified that throughout her time in the cruiser, both at the EMB and the hospital, and during her walk into the hospital, she repeatedly asked Foy to stop filming, but he refused, stating it was for training purposes. 

Doe proceeded to the decontamination shower room, closed the door behind her, undressed and showered without incident.  When she finished showering, however, she noticed that there were no towels in the decontamination area - only a roll of thin tissue paper, of the kind that covers examination tables in doctors' offices.  A female Sheriff's Deputy, Joyce, instructed Doe through the closed door to wrap the hospital paper around her private areas so that Joyce could enter the room, examine Doe and ensure that all of the fleas had been removed.  Doe wrapped the paper around her private areas, but testified that either the paper itself was semi-transparent, and/or that her wet body caused the paper to become semi-transparent after she wrapped it around herself.  

Joyce entered the decontamination room, and closed the door behind her, but was unable to lock it, as the door was not equipped with a lock.  With Doe standing with her back to the door, Joyce began to inspect Doe for fleas.  Doe testified that at this point, most of her back, shoulders and legs were completely exposed, with only the semi-transparent paper wrapped around her buttocks and breasts. 

As Joyce was examining Doe for fleas, Foy opened the door to the decontamination room approximately one foot and began surreptitiously filming Doe.  Doe was then startled to hear Bobbouine's voice behind her saying "What's that shit all over your back?" in a reference to Doe's back tattoo.  Doe instinctively turned, saw the two men and yelled at them to leave the decontamination room.  Doe later testified that the video captured someone saying that he could see her "boobies," and that somebody should grab something to "cover [Doe] up."  Doe also testified that her buttocks were visible through the wet paper and that Bobbouine had made a statement (also allegedly captured on video) that he "could see [Doe's] ass."  

Joyce again closed the door to the decontamination room behind the men, and finished her examination of Doe.  After which, Doe left the hospital in scrubs. 

Later that same day, Foy uploaded the video he took of Doe onto his County work computer and showed the footage to several male and female officers.  At least one officer testified that Foy had displayed a still image of Doe's bare buttocks.  Foy then saved several still images (including one showing the tattoo on Doe's back) and the video he took that day in a public computer file, entitled "Brian's ass," which Doe testified could have been viewed by anyone who had access to the Luzerne County computer network.  Of the two still images Foy saved that depicted Doe, both showed the visible outline of her buttocks, covered only by thin, wet hospital paper. 

Doe sued the County, claiming that the actions of Foy and Bobbouine violated not only her Right to Privacy under the Fourteenth Amendment, but also her right to be free from unreasonable searches and seizures under the Fourth Amendment.  Doe also claimed that the County was liable for an alleged failure to train their officers. 

On appeal, the Third Circuit held that, on these facts, the district court committed error by dismissing Doe's Right to Privacy claim.  While noting that "the issue of whether one may have a constitutionally protected privacy interest in his or her partially clothed body is a matter of first impression in this circuit," the Court unambiguously found that "Doe had a reasonable expectation of privacy while in the Decontamination Area, particularly while in the presence of members of the opposite sex," and that the facts did not "support the assertion that Doe expressly or implicitly consented to Bobbouine and Foy opening the door or filming the events inside the Decontamination Area."  The Court noted that there was also a dispute of material fact as to which of Doe's body parts were exposed to Bobbouine and Foy - Doe had presented evidence that her unexposed breasts and buttocks were revealed to Bobbouine and Foy, while the County had argued that only Doe's back, shoulders, arms and legs were exposed.  As such, the Court determined that dismissal of Doe's claim in light of this factual dispute was improper. 

The Court also found that the following factors all weighed in favor of finding a Right to Privacy for Doe under these circumstances: (1) the video and pictures may have included images of Doe's exposed breasts and/or buttocks; (2) the potential harm to Doe of dissemination of non-consensual disclosure of those images or video over the Internet was great; (3) the context of the disclosure of the video and images at her work and to her co-workers could increase the harm suffered by Doe; and (4) there were inadequate safeguards imposed against non-consensual disclosure because Foy had uploaded the video and images to a public file where anyone with network access could view them. 

Consequently, the Court remanded the case back to the trial court and allowed Doe's Right to Privacy claim to continue. 

So, in case anyone out there was fuzzy on this issue, videotaping your co-workers partially nude is a no-no.  

You can read the Third Circuit's full opinion in Doe v. Luzerne County here: http://www.ca3.uscourts.gov/opinarch/103921p.pdf