Virginia Employment Law Blog
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IMG_0432Jeff Wilpon, the Chief Operating Officer of the New York Mets and son of Mets owner Fred Wilpon, runs his front office department about like his father runs the baseball team: Leigh Castergine, former Vice President of Ticket Sales, recently filed a lawsuit in the Eastern District of New York alleging that Fred Wilpon and the ball club discriminated against her for being pregnant and unmarried.

Castergine is a graduate of the University of Pennsylvania. She has worked for the Philadelphia 76ers, Orlando Magic, and Boston Bruins and was hired by the Mets in 2010. Last December, the Mets promoted Castergine to Vice President of Ticket Sales, making her the first female to hold such a position in the ball club’s 52 years of existence. The team regularly awarded her five- and six-figure bonuses for her work.

Sounds pretty good. So how did things go wrong?

According to Castergine’s charge, problems at work started when announced that she was pregnant. She alleges that Wilpon reacted to the news by showing his disdain for her situation in several humiliating ways, including:

  • Pretending to see if she had an engagement ring on her finger;
  • Announcing to the Met’s all-male senior executives that he was “as morally opposed to putting an e-cigarette sign in [his] ballpark as [he was] to Leigh having this baby without being married.”
  • Telling Castergine to tell her boyfriend that when she gets a ring she will make more money and get a bigger bonus;
  • Warning other co-workers to not take any interest in the unborn child;
  • Telling Castergine she was different and “less aggressive” after she gave birth to her child; and
  • Telling one of Castergine’s colleagues that people would respect her more if she were married.

Finally, Castergine alleges that she was fired in retaliation for reporting Wilpon’s behavior to the Met’s Human Resources department, which she says did nothing to investigate her complaints. The lawsuit notes that Castergine’s termination came shortly after she spoke to human resources and that Wilpon had told her she could only stay through the season as long as she kept her mouth shut about her discrimination claims.

The Mets maintain that Castergine was fired because she failed to meet sales expectations.

So what happens now?

Typically, a plaintiff alleging discrimination must show four things: (1) that she is a member of a protected class; (2) that she was qualified for her position; (3) that the employer took an adverse action against her; and (4) that something about the employer’s actions raises an inference of discrimination. This test is flexible and recognizes that there are many different things employers can do to suggest discriminatory intent, including:

  • Regularly making rude or derogatory comments to members of a plaintiff’s protected class;
  • Having a history of showing a bias toward persons in a protected class;
  • Having noticeably few employees of a protected class in a workplace; and
  • Retaining less qualified, non-protected employees in the same job.

The District Court where Castergine sued is therefore likely to look at things like her qualifications and job performance, as well as Wilpon’s conduct and the adequacy of Mets’ investigation.  Next, the burden will shift to the Mets to show that it had a legitimate, non-discriminatory reason for firing Castergine.  She will then have the opportunity to show evidence that the Met’s purported reason for firing her was only pretext for unlawful discrimination.

The Erlich Law Office will continue to monitor this case as it develops.  Stay tuned for more information.

 

 

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file0001329734681Have you ever had to deal with an unpleasant person at work? When does the inappropriate conduct of someone at work rise to a civil rights violation by your employer? A recent decision by the Fourth Circuit may help answer these questions. The Fourth Circuit upheld racial and sexual hostile work environment claims in Freeman v. Dal-Tile Corporation on April 29, 2014.

Lori Freeman, former employee of Dal-Tile, sued her former employer after enduring months of mistreatment from a sales representative from one of the company’s main clients.

In June 2008, Dal-Tile bought a stone yard called Marble Point in Raleigh, North Carolina, formerly owned by Marco Izzi. The yard was incorporated into Dal-Tile as a sale-service organization, and Izzi purchased ownership in VoStone, Inc., a Raleigh kitchen/bath remodeling center that became a significant client of Dal-Tile and major source of revenue.

Freeman had worked for Marble Point as a receptionist and became a Dal-Tile employee after the acquisition. During her employment, right up until she quit after taking medical leave for anxiety and depression, an independent sales representative for VoStone named Timothy Koester made unwelcome sexist and racist comments toward Freeman.

Specifically, according to the record in this case, Koester referred to women as “black bitches,” used the word “nigger” on more than one occasion, shared unwelcome details of his sexual exploits, and made jokes that disparaged African Americans.

From the first incident onward, Freeman made several attempts to notify Dal-Tile of the harassment and requested that it deal with the misconduct. She frequently informed her supervisor about the behavior, and although it sometimes was acknowledged and frowned upon, the conduct was allowed to persist.

With such egregious conduct before the Court, it is may not come as surprising that the Fourth Circuit upheld Freeman’s claims of a racial and sexist hostile work environment against a motion for summary judgment.

Dal-Tile’s strongest defense was that it could not be held liable for the conduct of Koester because it did not know about nor should it have known about the discrimination. Even though both parties agreed that Freeman notified a supervisor about Koester’s behavior, Dal-Tile argued that she had never complained about the behavior – through either formal or informal channels.

The Fourth Circuit did not accept this argument. In doing so, it formally adopted a negligence standard for holding employers liable in race- and/or sex-based discrimination cases, meaning that employers will be found liable for their employees’ harassment if those employers knew or should have known about the harassment and failed to take prompt remedial measures.

Turning to the facts of the case, the Fourth Circuit found this requirement satisfied because Freeman notified her supervisor about Koester’s behavior several times; because that same manager was even present at some of the instances of his improper behavior; because Freeman complained to human resources; and because Freemen protested the behavior to Koester himself. In the Court’s own words:

 Not only did Dal–Tile fail to take any serious action for three years in spite of the long list of ongoing harassment by Koester, but particularly shocking to us is the fact Dal–Tile took absolutely no action when Koester passed gas on Freeman’s phone and made Freeman cry in Wrenn’s presence, nor when Freeman promptly complained to Wrenn that Koester had used the word “n****r” on the phone with her. Although the harassment eventually stopped after the communication ban was put into place, the harassment had continued unabated for three years prior to that. While a communication ban may have been an adequate response had it been put into place sooner, Dal–Tile’s failure was in not responding promptly to the harassment. Based on this evidence, we believe a reasonable jury could conclude that Dal–Tile failed to take “prompt remedial action reasonably calculated to end the harassment.”

How does this apply to you? You are protected from discrimination in the workplace that is based on race, color, gender, national origin, religion, age, disability, and genetic information. As the Fourth Circuit recognized in this case, unlawful workplace discrimination can come from a coworker or even a third party not employed within your company if your employer is negligent in allowing this behavior to continue.

We can advise you on how to deal with this type of situation. Contact the Erlich Law Office for a free consultation.

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Being terminated from your job almost always comes with a huge amount of stress and emotion.  There’s a lot to process, and people often want to do that processing very quickly in order to get back up and running.  Every day, we see people who have lost their jobs and are understandably having a tough time figuring out where to begin. We’re here to help, and in this particular situation we’re here to help you understand with some visual aids.  Here’s a guide to the firing process.

1. Be Professional: Nothing is gained by burning bridges on the way out.

Stay calm, act professionally.

 

2. What’s The Deal?: What are the terms of your separation?  Were you fired?  Did you get a chance to resign?  Is there a severance package?

Figure out the terms

 

3. Try Not to Be Angry at the Silence: In Virginia, and in most jurisdictions, you can be fired for any reason or no reason at all.  Because of that, most supervisors and human resources professionals won’t talk to you about why you just lost your job.  Whether or not the termination was valid, that silence from your former employer shouldn’t be taken personally.  It will, however, feel a lot like this:

Try not to be angry.  It'll be hard.

 

4. Then You Can Get Actually Angry: It just isn’t terribly productive, but it’ll probably feel pretty good.  Set off a few hours or a few days to just be mad.  Critically, this is not the time to communicate with your former employer.  Just, enjoy some time getting it all out of your system.  Like this:

You won't like me when I'm fired.

Seriously, do not call your old boss while you’re angry.

 

5. (Optional) Be Sad for a Day: You just lost your job.  You’re mostly angry, but if you were there for any length of time, you probably just lost an important set of relationships with people who you saw every day at a place where you spent forty or fifty hours per week.  Take a day and be sad.  It’s natural.

Be sad, you deserve it.

 

6. Now It’s Time to Get Up and Defend Yourself: Find an employment lawyer and get a consultation.  You may or may not have a case, but you won’t know until you get counsel.  Look to the National Employment Lawyers Association, the Metropolitan Washington Lawyers Association, or your local chapter of NELA.  Preferably not this guy:

I'm just a caveman.

 

7. Organize Your Paperwork: This isn’t just selfish from the attorney’s perspective.  It will save important time and legal fees if your paperwork and digital documents are in order, preferably in binders or in some other system, when you come to see us.  If not, we’ll put them in order, but do you really want to pay us for the 5 hours it takes to organize your 10 years worth of documents?  It helps everyone if you’re organized.  It’s like this:

Organization 101

 

8. Figure Out Your Claims: Now that you have counsel and your paperwork is in order, it’s time to figure out what’s going on.  Some firings are just firings.  It’s that simple.  But others are the basis for claims under the Civil Rights Act of 1964, the Americans with Disabilities Act, and any number of other employment laws designed to protect employee rights.  Your counsel will help you determine whether you have a case and, if so, what laws apply.  The laws are complicated, but employment lawyers handle these matters every day and we can help you navigate and evaluate your claim.  We help you understand if you have a valid claim, or if it’s more like this:

Risky strategy!

 

9. Make a Decision and Move Forward, If Necessary: Once we’ve decided that there’s a case to pursue, we will help you put that case together.  Sometimes it’s a soft approach that involves us simply helping you approach your company while we work in the background in an advisory capacity.

Don't let the haters stop you

 

 

 

 

 

 

Other times, we get involved, but we try to find middle ground with the opposing party before litigation to avoid the cost and burden of the litigation process.

Negotiation!

 

 

 

 

 

 

 

 

But, sometimes, we file and expect to go to court.  Sometimes that’s what our clients want.  Other times, it’s just what the case needs.

Trial by Combat

 

 

 

 

 

 

 

 

 

We’re here to help. If you were fired, demoted, or otherwise discriminated against in a job.  If you had your wages unfairly stolen from you.  If you have a contract, non-compete, or non-solicitation dispute, you may have a case. For a free consultation, please call us at (703) 791-9087 or visit our web site at www.erlichlawoffice.com.

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file0001365683306In Part 1 of our 2 Part series on the EEOC’s new Guidelines on Pregnancy Discrimination, we discussed the first five things you should know about this recent and important guidance.  Here are tips six through eleven:

6) Title VII prohibits an employer from offering a health insurance plan that does not cover prescription contraceptives but provides other preventative health care.   To comply with Title VII, an employer’s health insurance plan must cover prescription contraceptives to the same extent it does prescription drugs, devices and services that are used to prevent the occurrence of medical conditions other than pregnancy, such as medicine that lowers cholesterol levels.

This, of course, is particularly fascinating because it is in direct conflict with the Supreme Court’s recent decision in Burwell v. Hobby Lobby Stores, Inc. Nos. 13-354, 13-356, 2014 WL 2921709 (U.S. June 30, 2014).

This highlights the difference between guidance and law.  Guidance simply does not have the force of law until a court speaks to it, adopts it, and decides to make it law.  Guidance does have a substantial effect on the agency’s interpretation of issues.

This, however, is a different perspective on the contraception issue, and it may carry some weight when it gets into the courts.  For the moment, though, this guidance is pretty directly at odds with the precedent of the Supreme Court.

7) An employer’s concern about risks to an employee or her fetus will rarely, if ever, justify sex-specific job restrictions. The Supreme Court has held that a battery manufacturing company violated Title VII by excluding all fertile women but not similarly excluding all fertile men in jobs entailing exposure to high levels of lead (which can pose hazards to unborn children). In reasoning that such a policy constituted discrimination, the Court emphasized the fact that it denied fertile women a choice that was given to fertile men: whether they wished to risk their reproductive health for a particular job.

8) Title VII prohibits employers for taking adverse employment actions against employees on the basis of their desire to become pregnant. Therefore, if an employer overhears that a female worker is trying to get pregnant, reacts or comments negatively to that information, and then demotes or takes another adverse employment action against that employee despite her overwhelmingly positive performance evaluations, it is likely that the employer violated Title VII by impermissibly discriminating against the woman for wanting to be pregnant.

9) Title VII does not prohibit an employer from asking an applicant whether she is pregnant. However, the EEOC considers such an inquiry to be evidence of discrimination where an employer subsequently fires an employee or decides not to hire that applicant.

 10) A workplace policy that is not intentionally discriminatory violates Title VII if it has a disproportionate, negative effect on women ft odor a pregnancy-related reason and the policy and is not job related or consistent with a business necessity.

11) Section 4207 of the Affordable Care Act requires that employers provide “reasonable” break time and a private location for employee breastfeeding or breast pumping for up to one year after birth of the employee’s child.

Remember, employers may not discriminate against employees on the basis of pregnancy, childbirth or other related medical conditions. Women affected by pregnancy, childbirth or other related conditions must be treated the same as other persons similar in their ability or inability to work. The ADA’s pregnancy-related provisions mandate that employers must accommodate impairments caused by an employee’s pregnancy to the same extent they would other disabilities in the workplace.

Pregnancy discrimination is a real problem and it needs to be addressed.  If you were fired, demoted, or otherwise discriminated against in a job for reasons related to your pregnancy, childbirth, or the desire to become pregnant, you may have a case of discrimination under Title VII and the ADA. For a free consultation, please call us at (703) 791-9087 or visit our web site at www.erlichlawoffice.com.

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ancsa 005On July 14, the United States Equal Employment Opportunity Commission (“EEOC”) published guidance on laws governing pregnancy-based discrimination for the first time since 1984. Charges of pregnancy discrimination are rising largely due to common and persistent misconceptions about pregnancy in the workplace.

The two of the main federal laws concerning pregnancy-related discrimination in the workplace are the Pregnancy Discrimination Act (“PDA”) and the Americans with Disabilities Act (“ADA”). The PDA is an amendment to Title VII of the Civil Rights Act of 1964 (“Title VII”), which contains two fundamental restrictions on how employers may treat workers for pregnancy-related reasons.

First, employers may not discriminate against employees on the basis of pregnancy, childbirth or other related medical conditions. Second, women affected by pregnancy, childbirth or other related conditions must be treated the same as other persons similar in their ability or inability to work. The ADA’s pregnancy-related provisions mandate that employers must accommodate impairments caused by an employee’s pregnancy to the same extent they would other disabilities in the workplace.

While the laws may appear to be simple, applying them to the numerous contexts in which workplace discrimination may arise can be more complex. That’s where the EEOC guidelines come in to play.  We have reviewed the guidance and summarized eleven of its most critical points, to be posted in a two-part series. Here are the first five:

1) Title VII prohibits employment decisions based on stereotypes and assumptions about pregnancy and how it affects a woman’s ability to perform her job. For example, refusing to hire a pregnant woman based on the assumption that she will have attendance problems or leave her job after the child is born is unlawful, even when the employer is acting unconsciously or with the belief that it is furthering the employee’s best interest. As the Supreme Court has specifically stated: “[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with the group.”

 2) Lactation is a covered pregnancy-related medical condition. Title VII requires an employer to offer a woman who is lactating the same accommodations for addressing related health needs that it would provide her coworkers for other similarly limiting medical conditions.

3) Title VII forbids employers from requiring that pregnant workers who are able to do their jobs to take leave. As the EEOC’s guidance explains, such an action constitutes discrimination, even if the employer believes it is in the woman’s best interest, because it is almost certainly motivated by stereotypes about pregnancy.

4) Title VII requires that parental leave (which is different from medical leave associated with childbearing or recovering from childbirth) be provided to similarly-situated men and women on the same terms. An employee may have a valid claim for discrimination against her employer if she is treated differently from a man for taking parental leave, based on the employer’s mistaken assumption that a new mother would be less committed to her job.

5) The ADA requires that employers make reasonable accommodations to pregnancy-related impairments just as they would other qualified disabilities in the workplace. For example, an employer who has a policy of providing light duty for any employee who cannot perform one or more jobs for up to 90 days due to injury, illness, or a condition that would be a disability under the ADA must provide those same accommodations to a women who is similarly affected due to pregnancy-related reasons.

If you were fired, demoted, or otherwise discriminated against in a job for reasons related to your pregnancy, childbirth, or the desire to become pregnant, you may have a case of discrimination under Title VII and the ADA. For a free consultation, please call us at (703) 791-9087 or visit our web site at www.erlichlawoffice.com.

Please join us for Part 2 when we’ll discuss the second set of things you should know from the EEOC’s recent pregnancy discrimination guidelines.

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file0002000666636The excellent Ask A Manager blog recently responded to a reader question about whether it is legal for publications to not pay their volunteer writers.  As always with legal questions, AAM addresses the underlying issues, but avoids offering legal advice.  We’ve decided to expand on legal issues here.

As readers of this blog know, the Fair Labor Standards Act guarantees that employees are paid no less than minimum wage for their work.  The important language in the FLSA is that an employer must pay for hours that that employer has “suffered or permitted” you to work.

But before we get too far into the weeds: can people write for free for publications?  Can they trade their writing for the nebulous compensation of exposure?

The most prominent case on this matter is a weird one.  Tasini, et al v. Huffington Post did not come out well for the plaintiffs, but, oddly, the plaintiffs did not sue under wage and hour laws.  The Plaintiffs chose to bring their case under the laws of deceptive business practices and unjust enrichment in an attempt to claim one-third of the purchase price of the Huffington Post for its unpaid content providers.  That legal theory is novel and the plaintiffs’ lawyers were clearly swinging for the fences, but it didn’t work, and it doesn’t tell us much about whether actual wage laws apply to unpaid content providers.

According the law and guidance from the Department of Labor, however, this is actually an incredibly straightforward issue. You simply can’t volunteer for a for-profit entity.

You can volunteer for a nonprofit under particular circumstances.  A for-profit entity, on the other hand, simply cannot have volunteers, whether those volunteers are content providers, administrative support, or unpaid interns, as some of you may be.  This law is the reason that unpaid internships are becoming liability traps for companies across the country.

The distinction between hours worked and hours ‘suffered or permitted’ becomes important, especially in jobs like writing, when an employer might not know how long a task took you to complete.  As mentioned above, writing is a bit different from many other forms of work.  If you just upload content without oversight or direction, it’s hard to make the case that the publication, in the words of the statute, suffered or permitted you to work those hours.  It’s just something you did.  Presumably, you don’t have an exclusive arrangement with a particular site and you could have posted your column anywhere.  It wouldn’t be reasonable to insist that the site where you post your column has to pay you for the work of producing it if you wrote it unprompted.

Conversely, whether or not  you are being paid, if a site is assigning you work, giving you deadlines, expecting you to provide a certain product, or even expecting you to cover a certain beat, then you probably have a job and should be paid.  This is especially true if the publication is providing equipment for you.  This mostly is not the case when writing for an online publication, but press credentials, for example, could be considered equipment for these purposes.

In general, if you’re working, the law says you need to be paid for your work.  Exposure is not payment.  No one can stop you from doing unprompted work and posting on a forum, but if your work is at the request of a for-profit entity, that for-profit entity should pay for your time.

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file1581270826885The Eleventh Circuit recently provided insight as to how federal courts analyze disability discrimination law claims when it held that firing a truck driver because he was diagnosed with alcoholism is not a violation of the Americans with Disabilities Act (ADA).

Title I of the ADA grants certain protections to disabled individuals who are qualified to perform a job’s basic functions from discrimination in employment.

Alcoholism is a disability under the ADA, but the question of whether or not an alcoholic can seek the ADA’s protection doesn’t end there: employers are not always obligated to retain workers who suffer from a condition that is recognized as a disability under the ADA.

An employer can lawfully fire or refuse to hire some one who was diagnosed with alcoholism if he or she can show that a person wasn’t otherwise qualified for a particular job, or that employing that person would create a direct safety risk to others.

This case serves as an important reminder of when employees can state a claim for employment discrimination under the Act. As underscored in the majority’s opinion, an individual is not necessarily entitled to protection from undesirable employment actions like termination or demotion simply because that person suffers from a disability. Rather, the ADA’s section on employment covers only disabled individuals who are otherwise qualified for a job, meaning that they can fulfill its essential functions.

The debate in many employment discrimination cases therefore centers on determining what the essential functions of a job are. Although there is no clear-cut rule for this analysis, courts find evidence of essential functions of a job in things like official job descriptions, industry standards and norms, and job listings. Importantly, courts will defer to employers’ determinations of whether or not an individual is otherwise qualified for a job with or without a reasonable accommodation, on the rationale that employers may be better equipped to make this kind of assessment due to their experience within a particular field or industry than the Court.

In the case before the Eleventh Circuit, the defense argued—and the Court agreed— that having a current diagnosis of being an alcoholic, even if in treatment, prohibits someone from fulfilling the essential functions of truck driving, which includes driving and being certified to drive by the Department of Transportation.

In determining whether a job function is essential, the Equal Employment Opportunity Commission (the federal agency that enforces the ADA in the employment context and other employment discrimination laws) looks at these factors:

  • the employer’s assessment of which functions are essential, as demonstrated by job descriptions written before the employer posts or advertises for the position
  • whether the position exists to perform that function (if the entire job consists of one function, such as loading and unloading boxes or entering information into a database, then than function is essential)
  • the experience of employees who actually hold that position
  • the time spent performing the function
  • the consequences of not performing the function
  • whether other employees are available to perform the function, and the degree of expertise or skill required to perform the function.

If you were fired, demoted, or otherwise discriminated against in a job relating to an actual, past, or perceived disability, you may have a case of disability discrimination under the ADA. For a free consultation, please call us at (703) 791-9087 or visit our web site at www.erlichlawoffice.com.

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file000495587744Do you think that the Fourth Circuit got it wrong when it decided against an employee who was called a “porch monkey” more than once by a coworker and was fired from her job shortly after she complained?   You are certainly not alone.  Ms. Boyer-Liberto’s complaints about the racists did not give rise to a claim for a hostile work environment or employment discrimination according to the Fourth Circuit, but you may see the Fourth Circuit change or limit that opinion.

The Fourth Circuit on Tuesday, July 1, granted en banc hearing to Boyer-Liberto v. Fontainebleau Corp., marking a potential shift in the way the Fourth Circuit analyzes employment discrimination claims. What this means is that both sides will reargue the case, but this time they will do so in front of all eligible judges of the Court of Appeals for the Fourth Circuit.  Many appellate courts sit in parts or divisions of three or more judges from among a larger number on the full court.  The Fourth Circuit is no exception.  That’s why only three judges (Chief Judge Traxler and Judges Neimeyer and Shed)  heard and decided the original case.  When a court sits en banc it is possible that it will reach a different decision from the original 3-member panel. It is common for parties to ask for a rehearing en banc after an appellate court renders a decision; however, they are rarely granted.  When a court does grant a rehearing en banc, it means that one of the following situations are in play:

  1. A material (potentially outcome changing) fact or legal issue was overlooked in the decision;
  2. A change in the law happened after the case was decided and was overlooked by the judges who made the decision;
  3. The decision conflicts with a decision made by the Supreme Court, the Fourth Circuit itself, or another federal circuit; or
  4. The proceeding involves some issue of exceptional importance.

Oral argument is scheduled for September 18, 2014, so stay tuned for important developments in the case.

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file000162092220

On Friday, we discussed the recent discrimination case at arising from employment at a hotel bar between Reya Boyer-Liberto and her former employer, the Fontainebleau Corporation. We move on today to what we can learn from this case of racial language used in the service industry.

 

What the Case Teaches Us:

In dropping Liberto’s case, the Fourth Circuit was essentially saying that, even assuming everything that Liberto alleged was true, the conduct she faced did not amount to a hostile work environment while she had been employed by Berger.

If you experience discriminatory treatment at work, you have rights. However, not every case of racism or sexism will be treated as a civil rights violation. How will you know if the conduct was severe enough to create a hostile work environment claim?

  • Your case is more likely to succeed if you have faced multiple, separate instances of discrimination.  Based on the judge’s reasoning in this case, you may have a stronger claim for a hostile work environment if you can point to separate instances where a coworker or third parties dealing with your employer racially discriminated against you that persisted over a longer span of time. Your case may be weaker if you can only point to comments made in relation to an isolated conflict between you and another coworker that didn’t occur over a span of weeks or months.
  • Your case may be more likely to succeed if discriminatory statements were made during conversations about things like pay, work assignments, or other subjects relating to the terms and conditions of employment and had lasting consequences.  If discriminatory comments are made to you during talks about your pay rate, hours, or any other working conditions and leads to changes in working conditions, you may have a stronger case for hostile work environment. This is because the context of those conversations makes it seem more likely that discrimination led to an adverse employment action against you.
  • Be advised, however, that while it is more difficult to succeed on a hostile work environment claim where discriminatory comments have only been made once or twice, it is not impossible. You might be able to succeed in a hostile work environment claim if you can show that your employer permitted one of your coworkers to use language that was sufficiently egregious.  The dissent in this case argued that the Fourth Circuit should follow its holding in a prior case, in which it said that using the N-word, for example, is “more than a mere offensive utterance” and is “pure anathema to African-Americans.”

Remember, each fact pattern falls on a spectrum of possible results.  Liberto’s case was found to be too specific to create a hostile work environment: two incidents over the course of two days did not alter the terms and conditions of her employment.  Another case might have a different result.  One incident, if sufficiently severe, could alter the terms and conditions of employment.  Alternatively, less severe incidents that occur over a longer period of time could also create a hostile work environment.

Each situation requires individual analysis.  Contact us if you have been subject to discrimination or harassment based on race, gender, or other protected class status.

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openphotonet_129_2966_IMG_(1024_x_768)Have you ever wondered how bad your working conditions have to become your work is a “hostile work environment?”  A recent case may help you decide whether you’re in a position to take legal action.

Reya Boyer-Liberto, an African-American woman, sued the Fontainebleu Corporation and her boss Leonard Berger for racial discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981.  Liberto alleged that her former employer discriminated against her by allowing a hostile work environment to persist at the hotel where she worked because a coworker yelled at her and called her a “porch monkey” twice within a two-day period.

Despite recognizing the racial slurs as unacceptable, the Fourth Circuit held that Liberto’s coworker’s conduct was too isolated to constitute a hostile work environment, reasoning that a two-day period of racial comments, relating to one altercation, was not sufficiently “severe” or “pervasive” to change a term or condition of her employment or create an abusive workplace atmosphere.

A Match Not Made in Heaven

The lawsuit began with a conflict between Liberto and a coworker, Tracey Clubb, who was a friend of Liberto’s boss, Berger. When they first met, Clubb offended Liberto, saying: “You look like Stacy [another employee], but Stacy’s nice.” A month after Liberto was hired. she passed through the hotel’s bar’s kitchen to have a drink made. While she was doing so, Clubb called out to Liberto from across the room, telling Liberto not to use the kitchen as a shortcut, but Liberto could not hear her. When Clubb finally got Liberto’s attention, she yelled at her for not acknowledging her earlier. Clubb also called Liberto “deaf,” said she was “going to make [Liberto] sorry, ” and called her a “porch monkey.” The next day at work, Clubb scolded Liberto and again called her a “porch monkey.”

Liberto reported the conduct to the company’s Human Resources Director, who took typed notes of the conversation. Clubb denied Liberto’s allegations but was issued a written warning. In the immediate aftermath of the incident, Clarion owner Berger consulted with Liberto’s supervisors about her work performance. During that conversation, Berger noted that Liberto had substantial performance issues and failed a bartender’s test. He decided to fire Liberto’s employment, and notified her of the decision on September 21.

Liberto filed a charge of racial discrimination and retaliation with the United States Equal Employment Opportunity Commission (“EEOC”) and filed suit after the EEOC issued her a Notice of Right to Sue. Defendants asked the district court to drop the case because the offensive conduct was too distant from the adverse employment action against Liberto for the claim to . On April 4, 2013 the court entered judgment for Fontainebleau/Clarion. She appealed to the Fourth Circuit

The Law On Hostile Work Environment Discrimination Claims:

  •  Title VII bans employers from discriminating against an individual regarding her compensation, terms, conditions or other privileges of employment because of her race, color, religion, sex, or national origin. 42 U.S.C. 2000e-2(a)(1). Requiring an employee to work in a “discriminatorily hostile or abusive environment” is one type of Title VII violation.
  •  The test for a hostile work environment is whether discriminatory remarks are so “severe or pervasive” that they change the conditions of a person’s employment and “create an abusive working environment.”
  • Hostile work environment questions require judges to consider a wide variety of factors, including the frequency of the discriminatory conduct, its severity, and the effect of the conduct of the employee, i.e. whether it is threatening or humiliating, and whether it unreasonably interferes with the employee’s work performance.

Come back on Monday for Part 2: What This Case Teaches Us.