2nd bite of the apple does the trick: Case dismissed

by Corey Zoldan
DimuroGinsberg PC

Getting a discrimination lawsuit dismissed without a trial is never easy. Fortunately, there are multiple ways to mount a legal defense against a discrimination claim filed by one of your employees that can resolve the case in your favor before you need to face a jury. A recent case filed by the former deputy chief of the Bedford police force is illustrative.

Burden-shifting framework

In our December 2018 issue, we introduced you to Carla Beels Spencer, an openly gay woman who was terminated from her job as the deputy chief of police by the town of Bedford (see “Virginia court examines whether sexual orientation is protected by federal law” on pg. 3 of that issue). Spencer sued the town, alleging she was fired after only eight months on the job because of her sex (i.e., because she’s a gay woman), in violation of Title VII. She didn’t pursue a specific claim based on her sexual orientation, presumably because the status of Title VII’s protection for sexual orientation remains in flux.

As we reported in December, Bedford’s attempt to have Spencer’s entire case dismissed based on the facts she alleged in her complaint was rejected by Judge Norman Moon of the federal district court in Lynchburg. Judge Moon dismissed a portion of Spencer’s lawsuit, but he let the remainder of the case proceed to the discovery, or fact-finding, stage. Following discovery, Bedford again requested summary judgment, asking Judge Moon to dismiss the case without a trial.

At the summary judgment stage, Title VII claims based on indirect evidence of discrimination (like Spencer’s case) are examined under the burden-shifting framework enunciated by the U.S. Supreme Court in its 1973 decision in McDonnell Douglas Corp. v. Green. First, the employee must establish a prima facie (or “first impression”) case of actionable employment discrimination. Then, the burden shifts to the employer to articulate a legitimate nondiscriminatory reason for the adverse employment action. If the employer is able to do that, the burden shifts back to the employee to prove the employer’s reason is a pretext (or smokescreen) for actual discrimination.

Court’s assessment

Using the McDonnell Douglas framework, Bedford argued in its summary judgment motion that Spencer both (1) failed to establish a prima facie case for her remaining discrimination claims and (2) failed to show its stated reasons for firing her weren’t the true reasons but were simply pretext for discrimination.

In assessing Bedford’s motion, Judge Moon concluded that Spencer was able to establish a prima facie case of discrimination by showing she (1) is a member of a protected class (i.e., she is a woman), (2) was doing a satisfactory job, (3) suffered an adverse employment action when she was terminated, and (4) was treated differently than similarly situated employees outside her protected class. At this point, the burden shifted to Bedford to provide a legitimate nondiscriminatory reason for terminating her.

The primary reason Bedford gave for firing Spencer (among other performance-related secondary reasons) was that she hadn’t completed the police department’s National Law Enforcement Challenge application and had lied to the police chief about her efforts to do so. The burden then shifted back to Spencer to prove the city’s stated reason was a mere pretext for sex discrimination.

Spencer faced an uphill battle in proving pretext, Judge Moon explained, because when “the hirer and firer are the same individual [as was the case here] and the termination of employment occurs within a relatively short time span following the hiring, a strong inference exists that discrimination was not a determining factor for the adverse action taken by the employer.” Further, Bedford was able to bolster its defense with e-mails that contradicted her discrimination claims as well as evidence that she lied about when she obtained certain documents requested by her supervisor.

Although Spencer clearly didn’t agree with Bedford’s explanation for her termination, Judge Moon noted such disagreement wasn’t sufficient to show the employer’s “decision to fire her for falsifying her records was dishonest or not the real reason for her termination.” Without additional proof, the judge wouldn’t allow Spencer’s personal opinions to change his analysis of the deficiencies in her case.

Based on Spencer’s lack of evidence, Judge Moon ruled there was no genuine dispute over the material facts in the case, and those facts failed to demonstrate Bedford had discriminated against her. Accordingly, he dismissed all of her remaining discrimination claims. Spencer v. Town of Bedford, C.A. No. 6:18-cv-31 (W.D.Va., May 23, 2019).

Bottom line

Judge Moon’s decision in this case provides insight into the evidence you will need to get an employment discrimination case dismissed before you have to go through an expensive, and often unpredictable, jury trial. The lesson here may seem obvious, but it can be easy to forget: A legitimate reason for terminating an employee should always carry the day.

You should be proactive in gathering and preserving documents and other evidence of your nondiscriminatory reason for firing an employee contemporaneously with the decision to terminate her and any related internal investigation. That evidence will be crucial in convincing a court that any adverse action you may have taken against the employee was based on objective performance factors and wasn’t tainted by discriminatory motives or stereotypes.

Corey Zoldan is an attorney with DiMuroGinsberg PC and a contributor to Virginia Employment Law Letter. He may be reached at czoldan@dimuro.com.

U.S. Supreme Court to decide if Title VII protects LGBT workers

by Andrea L. Moseley
DimuroGinsberg PC

Since last year, we have been watching the U.S. Supreme Court to see whether it will hear a trio of cases that gave conflicting answers to the question of whether Title VII of the Civil Rights Act of 1964’s ban on discrimination “based on . . . sex” protects LGBT workers. That burning question has been simmering for years, and now the Supreme Court is poised to take on the Title VII quandary.

The trifecta of cases, Altitude Express v. Zarda, Bostock v. Clayton County, Georgia, and R.G. & G.R. Harris Funeral Homes Inc. v. EEOC, were initially set for Supreme Court consideration last September. But the Court punted then and continued to do so until last month. On April 22, 2019, the high court finally decided to move forward and hear the cases. After much waiting, we finally know the Supreme Court will weigh in on the question and issue the final word on the scope of Title VII’s prohibition on sex discrimination.

What were those three cases again?

Because each of the cases has its own set of facts, it’s helpful to recap the specific issues the Supreme Court will be considering:

  • In R.G. & G.R. Harris Funeral Homes Inc. v. EEOC, the U.S. 6th Circuit Court of Appeals reasoned that gender identity is fundamentally tied to biological sex. Therefore, the court ruled that an employer violated Title VII when it terminated a transgender employee for failing to conform to gender norms.
  • In Altitude Express v. Zarda, a skydiving company is asking the Court to overturn the 2nd Circuit’s ruling that a former employee established a viable Title VII claim when he alleged the company fired him because of his homosexuality.
  • In Bostock v. Clayton County, Georgia, the 11th Circuit ruled that an employee’s claim that he was fired after his employer learned he had joined a gay softball league wasn’t legally cognizable under Title VII. That ruling, of course, is in direct conflict with the 2nd Circuit’s decision in Zarda.

Significantly, the litigation of the three cases has exposed sharp disagreement within the federal government over Title VII’s range. The U.S. Department of Justice (DOJ) and the Equal Employment Opportunity Commission (EEOC) have taken opposite positions on this significant issue. The EEOC has maintained that Title VII extends to sexual orientation and gender identity, while the DOJ has taken the position that it does not. The Supreme Court will have the final word on which agency is correct.

What’s next?

It has been a long time coming, but now we can expect clarity from the highest court in the land on the meaning of “sex” in Title VII. However, that clarity will not come immediately. The Supreme Court process will take a while.

First, the Court will set a briefing schedule, and then it will schedule a date for oral argument in the fall. The cases have been consolidated, and a total of one hour has been allotted for oral argument. After oral argument, we will have to wait for the Court to deliver its opinion, which likely will not come until sometime in early 2020.

What should you do now?

While we wait, we recommend that you chart a course to safeguard your business against a potentially expansive reading of Title VII. Until we have an answer from the Court, the safest route is to implement policies that protect, and are inclusive of, all your employees, irrespective of their sexual orientation and gender identity. The Supreme Court’s decision to address whether Title VII applies to LGBT employees may shine a new spotlight on the potential for expanded protections under Title VII, and workers may very well become aware of the issue for the first time.

As the debate reaches the Supreme Court and the date for oral argument approaches, you can expect Title VII issues to be on the minds of many more workers. The 2nd Circuit (whose decisions apply to employers in Connecticut, New York, and Vermont) and the 7th Circuit (whose decisions apply to employers in Illinois, Indiana, and Wisconsin) have prohibited discrimination based on sexual orientation. The 4th Circuit, which is based in Richmond and decides cases applicable to Virginia employers, hasn’t ruled either way. However, the Commonwealth of Virginia protects state workers from sexual orientation discrimination, and many Virginia localities have adopted protections for gay employees in their jurisdictions.

Updating your antidiscrimination and antiharassment policies and training your workforce are the best ways to protect yourself against potential liability for discrimination against LGBT employees. Consider contacting experienced employment counsel, the best source of information for developing employment policies and training your managers on possible changes to the scope of Title VII.

Takeaway

Getting ahead of the curve as to the changing currents in Title VII law will put you in the best position to address the employment issues you will be facing, no matter how the Supreme Court defines the term “sex” for Title VII purposes.

Andrea L. Moseley is an attorney with DiMuroGinsberg PC and a contributor to Virginia Employment Law Letter. She may be reached at amoseley@dimuro.com

Everybody talks about sex—but can employers be held liable?

by Corey Zoldan
DimuroGinsberg PC

Imagine this: Two individuals start a job at the same time. Quickly, management recognizes one employee’s hard work and dedication and promotes her. In a short time, the employee ascending the corporate ladder becomes the superior of the employee with whom she had onboarded. The nonpromoted employee becomes jealous and resentful. To this employee, there must be some reason not based on merit why the other employee has advanced. Whether true or not, the nonpromoted employee starts spreading a rumor—the promoted employee “slept” her way to the top.

Facts

The above-mentioned scenario is far from hypothetical. Accusations and unsubstantiated rumors like this unfortunately exist in the workplace. Indeed, this exact fact pattern recently played out in a case arising out of Sterling, Virginia.

In December 2014, Evangeline Parker was working for Reema Consulting Services, Inc. (RCSI), at its warehouse facility. By March 2016, after a series of promotions, she became an assistant operations manager. Within two weeks, another RSCI employee who had started working for the company at the same time began spreading a rumor she had been promoted only because she had a sexual relationship with a higher-ranking manager.

As the rumor spread, Parker alleged she “was treated with open resentment and disrespect” by coworkers, including her subordinates. She was also told by the highest-ranking manager at RSCI, Larry Moppins, that he would be unable to promote her any further because of the rumors, and in May 2016, he fired her.

Lawsuit

Believing her termination was unjustified and unfair, Parker filed suit against RCSI in federal district court. Among her legal claims was a hostile work environment claim for sex discrimination in violation of Title VII of the Civil Rights Act of 1964.

In assessing the legal merit of Parker’s suit, the district court considered the cause of the hostile work environment to which she had allegedly been subjected. Specifically, were her coworkers, superiors, and subordinates harassing her because she was a woman, or were they doing so because of her alleged conduct? And was it even possible to separate the two considerations?

The federal court decided to focus on Parker’s conduct. Although it empathized with her situation, it noted “that her complaint as to the establishment and circulation of this rumor is not based upon her gender, but rather based upon her alleged conduct.” Thus, it reasoned the “same type of rumor could be made in a variety of other contexts involving people of the same gender or different genders alleged to have had some kind of sexual activity leading to promotion.” Because the district court found the cause of the purported hostile work environment couldn’t be attributed to her sex, it dismissed her claim.

Appeal

Parker appealed to the U.S. 4th Circuit Court of Appeals (which is based in Richmond and whose decisions apply to employers not only in Virginia but also in West Virginia, Maryland, and North and South Carolina). In analyzing her discrimination claim, the 4th Circuit disagreed with the district court’s view that the rumor wasn’t related to her sex. Rather, it characterized the rumor as a female subordinate having sex with her male superior to obtain a promotion, “implying that Parker used her womanhood, rather than her merit, to obtain . . . a promotion.”

To the 4th Circuit, the stereotype “that generally women, not men, use sex to achieve success” clearly persists in today’s world. It also pointed out that Parker’s lawsuit, in addition to inferentially invoking sex stereotyping, explicitly alleged only males started and spread the rumors about her and that she was treated differently than the male manager with whom she was alleged to have had a sexual relationship.

Accordingly, the 4th Circuit found that any distinction between harassment “based on gender” and harassment “based on conduct” wasn’t one of substance “because the conduct is also alleged to be gender-based.” Thus, it held that the district court was wrong to have ruled she had failed to state a valid claim for a hostile work environment. It reversed the dismissal of her Title VII claim and sent the case back to the district court for further proceedings. Parker v. Reema Consulting Services, Inc., 2019 WL 490652 (4th Cir., Feb. 8, 2019).

Bottom line

The 4th Circuit’s decision provides important lessons for all employers. Although we as a society may be working to combat negative stereotypes, they still exist in many workplaces. In this case, the 4th Circuit made clear that any attempt to masquerade sex discrimination as discrimination based on conduct will fail when it perpetuates a discriminatory negative stereotype. Although Parker’s case dealt with the stereotype of women using sexual promiscuity to gain advancement in the workplace, the principle applies equally to negative stereotyping based on race, religion, national origin, or some other legally protected category.

As an employer, you can avoid being in the position RCSI now finds itself of facing a jury trial on Parker’s hostile work environment claim. Make sure you have policies in place to identify workplace misconduct, and when problematic situations arise, launch proper and expedient investigations with the oversight and guidance of experienced employment counsel.

Corey Zoldan is an attorney with DiMuroGinsberg PC and a contributor to Virginia Employment Law Letter. He may be reached at czoldan@dimuro.com.

2019 VA General Assembly passes only a few employment-related bills

by Jayna Genti
DiMuroGinsberg PC

The regular session of the 2019 Virginia General Assembly has ended. The session convened on January 9 and adjourned on February 24. The reconvened session is scheduled for April 3. During the regular session, approximately 35 labor and employment bills were introduced, but only three were passed and sent to Governor Ralph Northam for his signature.

Completed actions

Minimum wage exemptions. In an effort to modernize Virginia’s minimum wage law, the General Assembly passed House Bill (HB) 2473, which repeal certain minimum wage exemptions that were viewed as Jim Crow-era legalized wage discrimination against African Americans. The legislation rescinds laws that allowed employers to pay less than minimum wage to newsboys, shoeshine boys, ushers, doormen, concession attendants, cashiers in theaters, and babysitters who work 10 hours or more per week.

In 2018, a similar bill with the same intent died in committee. This year, the measure passed the senate 37-3 on January 18. On February 13, the house voted 18-14 in favor of a modified version of the bill. Two days later, the senate unanimously approved that version and sent it to Governor Northam to be signed into law.

Help for new mothers. Two bills facilitating employees’ ability to express breast milk were introduced this session. One passed, while the other was abandoned in committee.

The bill that passed the house and senate, HB 1916, requires the Virginia Department of Human Resource Management to develop state personnel policies that provide for break time during which mothers may express breast milk. The policies will require each state agency to provide:

  1. Reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time the employee has a need to express breast milk; and
  2. A place, other than a bathroom, that is shielded from view and free from intrusion by coworkers and the public and may be used by an employee to express breast milk.

The bill that stalled in committee, HB 1862, would have required all employers to provide reasonable unpaid break time each day to employees who need to express breast milk for nursing children and to make reasonable efforts to provide a room or other location, other than a bathroom, where employees can express breast milk in privacy.

Written wage statements. The General Assembly also passed SB 1696, which require every Virginia employer to provide employees, on each regular payday, a written statement on their pay stub or through online accounting that shows:

  1. The name and address of the employer;
  2. The number of hours the employee worked during the pay period; and
  3. The employee’s rate of pay.

Currently, employers must provide a written statement of employees’ gross wages and any deductions only upon request. The new measure doesn’t apply to agricultural employment and has a delayed effective date of January 1, 2020.

Unfinished business

Covenants not to compete. A bipartisan bill prohibiting employers from entering into, enforcing, or threatening to enforce covenants not to compete with low-wage workers passed the senate as well as the House Commerce and Labor Committee. However, the General Assembly ended before the bill could be put up for a vote in the house.

Given the bill’s bipartisan support, similar legislation may be introduced again next year. According to Delegate Schuyler VanValkenburg (D-Richmond), the proposed legislation is probusiness as well as proemployee because noncompete agreements hinder businesses from hiring talented employees and prevent employees from starting their own companies.

Minimum wage increases. At least four bills introduced in the General Assembly this session proposed to raise Virginia’s minimum wage, which is set at the federal floor of $7.25 an hour. None of the measures made it into law, and most were left in committee. A bill passed in the Senate Commerce and Labor Committee by a 9-5 vote would have mandated annual increases to the hourly minimum wage, raising it to $8 this year and reaching a final rate of $11.25 in 2022. Another bill that would have increased the minimum wage to $10 this year, $13 next year, and $15 by 2021 made it through committee but was defeated in the senate by a vote of 21-19.

Although none of the efforts to increase the state minimum wage was successful this year, it’s likely that similar efforts will be undertaken when the General Assembly convenes for its 2020 session.

Wage history. A senate bill that would have prevented employers from requiring as a condition of employment that prospective employees provide or disclose their wage or salary history was defeated in committee. The proposal also would’ve prohibited employers from attempting to obtain prospective employees’ wage or salary history from current or former employers.

Nonpayment of wages. House bills designed to allow employees to file individual claims against employers that fail to pay wages didn’t make it out of committee. Other bills that died in committee included a bill to authorize the commissioner of labor and industry to investigate and proceed against employers suspected of nonpayment of wages and one that would have prohibited employers from retaliating against employees who complain about the failure to pay wages.

Bottom line

The General Assembly made no significant changes to Virginia’s employment laws in 2019, especially for private-sector employers. However, the bills that were introduced but didn’t make it into law show that change is in the air for the minimum wage, restrictive covenants, and policies to assist working mothers. Keep an eye out for our coverage of the 2020 General Assembly to see how legislative proposals in those and other emerging areas of the law will fare with senators and delegates next year.

Jayna Genti is an attorney with DiMuroGinsberg PC and a contributor to Virginia Employment Law Letter. She may be reached at jgenti@dimuro.com

Roanoke newspaper and former sportswriter settle dueling claims

by Jayna Genti
DiMuroGinsberg PC

Readers will recall that last year we reported on the Roanoke Times’ lawsuit against its former sportswriter Andy Bitter over ownership of the @AndyBitterVT Twitter account and its followers (see “Who owns your company’s social media accounts?” on pg. 3 of our September 2018 issue and “Update on Roanoke Times’ Twitter lawsuit” on pg. 3 of our November 2018 issue). The newspaper first sued Bitter in Roanoke federal district court last August. The lawsuit sought to gain access to and use of the Twitter account. He had inherited the account from his predecessor on the beat but significantly increased the number of followers with his own reporting. He countersued the newspaper for defamation. It looked as though this would be a long, drawn-out dispute. But in a sudden turnaround, both sides have now agreed to a settlement.

Court’s ruling

The settlement may have been prompted by the federal court’s decision to deny the Roanoke Times’ attempt to prevent Bitter from using the disputed Twitter account while the case was being litigated. That ruling came after a seven-hour evidentiary hearing. Following the hearing, the court found two things—first, that the evidence failed to clearly establish that the newspaper was likely to prevail on the merits, and second, that irreparable harm would not result if he continued to use the account.

Regarding the likelihood of success, the court said the Roanoke Times had failed to prove by the high standard of clear and convincing evidence that it was the owner of the Twitter account or that it was a Roanoke Times-branded account, as opposed to a personal Twitter account owned by Bitter. Further, the court found that, given the public nature of the Twitter content and followers, the paper had failed to establish that the account contained any trade secrets under federal or state law.

Next, the court noted that the Roanoke Times hadn’t provided any evidence of irreparable harm should Bitter continue to use the account. This especially was the case because the account’s followers are publicly known. Additionally, the court found significant the paper’s “remarkable self-imposed ban on its own reporters’ use of Twitter to cover Virginia Tech football.”

Although the court expressed skepticism about the merit of the Roanoke Times’ legal arguments, it acknowledged there was a certain equity to the paper’s position. Indeed, it noted that the balance of equities somewhat favored the paper based on the evidence that the Twitter account was developed while Bitter was employed as a sports reporter and that this activity, at a minimum, was encouraged as part of his sports-coverage responsibilities. Given the strengths of each side of the dispute, the court ordered them to attend a settlement conference to attempt to resolve the matter.

Settlement

After the court issued its order, a settlement conference was convened. As a result of discussing the strengths and weaknesses of their respective cases, Bitter and the paper decided to settle, and the court, therefore, dismissed the dueling claims. The terms of the settlement haven’t been made public, but the federal court docket indicates that it was reached on mutually agreeable terms.

As part of the settlement, it appears that Bitter will retain access to the account, which uses the handle @AndyBitterVT. Indeed, following the court’s dismissal, he posted a statement to that effect, directing readers to the Roanoke Times’ new Virginia Tech-focused account. As he tweeted, “The Roanoke Times and I have agreed to drop our claims against each other and get on with our lives. I’ll continue to tweet from my account as I always have since I started covering Virginia Tech. If you’re inclined, consider following my successor at the Roanoke Times, Mike Niziolek, at @VTSportsRT. I look forward to continuing to report Virginia Tech football for The Athletic is his new employer. BH Media Group, Inc. v. Bitter, Case No. 7:18-cv-00388 (W.D. Va.).

Takeway

Significantly, the Roanoke Times apparently has learned from the legal dispute with Bitter the dangers of allowing a reporter to use his name as part of a Twitter handle. That’s because his successor at the paper will be using the handle @VTSportsRT, which references the name of the newspaper and sports team but not the reporter.

If you are facing a similar situation, where one or more of your employees uses Twitter or another social media platform as part of the job, you may want to have the Twitter handle or account name be in your company’s name, not the employee’s name. That will help to clarify that you own and control the account, not your employee.

Jayna Genti is an attorney with DiMuroGinsberg PC and a contributor to Virginia Employment Law Letter. She may be reached at jgenti@dimuro.com.

Virginia court examines whether sexual orientation is protected by federal law

by Corey Zoldan
DiMuroGinsberg PC

You might be surprised to learn that federal courts have not yet definitively decided whether Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on sex, also prohibits discrimination based on sexual orientation. Recently, the U.S. district court in Lynchburg had the opportunity to address the issue but declined to do so, instead deciding the case before it on other grounds. However, the court’s opinion still provides important lessons for compliance with federal antidiscrimination law.

Facts

Carla Bee Spencer, an openly gay woman, worked as the deputy chief of police in the town of Bedford for eight months before she was terminated in August 2016. She claimed that while she was employed, her coworkers and her supervisor often ignored and openly resented her because she is a gay woman. She also asserted that she was paid less than comparable heterosexual male employees, and her supervisor clearly favored her heterosexual male coworkers.

After she was terminated, Spencer filed suit, arguing that the police department and the town of Bedford violated Title VII by discriminating against her on the basis of her sexual orientation. The text of Title VII prohibits employers from discriminating against employees “because of [their] . . . race, color, religion, sex or national origin.” The town asked the court to dismiss the lawsuit because Spencer failed to state a viable legal claim since sexual orientation isn’t protected under Title VII.

Court’s ruling

U.S. District Court Judge Norman K. Moon rejected the town’s argument and ruled the case should continue. The court found that Spencer had sufficiently alleged she was discriminated against, not just because she is gay, but because she is a gay woman. Accordingly, the district court reasoned that “for present purposes, it is unnecessary to determine whether Title VII prohibits discrimination based on sexual orientation because [Spencer], as a woman who experienced discrimination based on her gender, sufficiently alleges membership in a protected class.”

In reaching that conclusion, Judge Moon relied on one of the seminal U.S. Supreme Court opinions laying out the law prohibiting sex discrimination. That 1989 case, Price Waterhouse v. Hopkins, stands for the proposition that a Title VII claim exists even if the discrimination isn’t based “solely” on the employee’s sex. It’s sufficient that the employee’s sex contributed to the discrimination. Spencer v. Town of Bedford, Case No. 6:18-cv-31 (W.D.VA., Nov. 2, 2018).

Local laws afford protection

Because the federal prohibition against employment discrimination based on sexual orientation remains uncertain, aggrieved employees must look to state and local laws to find protection. The Commonwealth of Virginia has yet to pass any statutes affirmatively establishing sexual orientation as a characteristic protected from acts of discrimination by private-sector employers. However, state government employees are protected by an Executive Order issued by then-Governor Terry McAuliffe in 2014.

Both the city of Alexandria and Arlington County have enacted local ordinances that specifically prohibit employment discrimination based on sexual orientation. Charlottesville has also prohibited discrimination against its employees on the basis of sexual orientation. It remains to be seen whether other localities in Virginia will enact similar provisions banning sexual orientation discrimination.

Bottom line

When it comes to this gray area, you are well-advised to err on the side of caution. As the Spencer case shows, employees can claim that the discrimination they faced was based on a combination of their gender and their sexual orientation to state a viable claim that could lead to prolonged litigation. The time, money, and public relations nightmare that can result from a sexual orientation discrimination case often simply isn’t worth the legal fight.

Internal policies prohibiting sexual orientation discrimination can proactively prevent issues from occurring in the first place and will allow you to better deal with them internally if they do. Given the legal and practical complexities in this area of the law, it’s wise to consult with experienced employment counsel who can guide you to a solution that’s best for your company going forward.

Corey Zoldan is an attorney with DiMuroGinsberg PC and a contributor to Virginia Employment Law Letter. He may be reached at czoldan@dimuro.com.

ADA case tests limits of employee testing

by Corey Zoldan
DiMuroGinsberg PC

Regardless of its ultimate outcome, a still-developing disability case in federal court in Norfolk serves to emphasize that you need to proceed with caution when instituting tests—especially written tests—for current employees or job applicants. The case also highlights the critical distinction between a “disability” and an “inability” for purposes of being covered under the Americans with Disabilities Act (ADA).

The case

Rayford Gray worked for Columbia Gas of Virginia for 31 years. He started out as a laborer and later was promoted to service technician. In 2015, Columbia decided to institute a written test for all employees. Gray took the written test but failed it three times. Although he contended that he was still able to perform the essential aspects of his job, Columbia fired him.

Gray asked Columbia to reconsider its decision because his poor test results stemmed from the fact that he had attention deficit hyperactivity disorder (ADHD) and couldn’t read. The company refused, and in September 2018, Gray went to court. His lawsuit claims that Columbia discriminated against him based on his disability by not reinstating him after he made it aware he had ADHD and couldn’t read.

Unanswered questions

At this point, Columbia hasn’t responded to Gray’s lawsuit. But if the case isn’t dismissed or otherwise resolved, we can expect to learn more details as it proceeds.

Those details may include the scope of Gray’s disability and whether he was in fact still able to perform the essential functions of his job. Additionally, if he couldn’t perform the essential functions, then the issue becomes whether Columbia needed to—and could have—provided him with reasonable accommodations that would have enabled him to continue to do his work.

Is there a causal connection?

An interesting point that neither Gray nor Columbia has yet addressed is the connection between ADHD and the inability to read.
In 2012, the U.S. 4th Circuit Court of Appeals (which is based in Richmond and whose rulings apply to Virginia employers) considered whether ADHD is a disability. In that case, Halpern v. Wake Forest Univ. Health Science, the appeals court held that “ADHD and anxiety disorders constitute disabilities giving rise to protection under the . . . ADA.” In reaching that conclusion, the court reasoned that the ADA protects against any “mental or psychological disorder, such as . . . specific learning disabilities.” Clearly, that language includes ADHD and dyslexia.

The situation becomes trickier, however, if Gray’s ADHD and inability to read are unrelated. The Equal Employment Opportunity Commission (EEOC) has previously commented in the appendix to its ADA regulations that “disadvantages such as poverty, lack of education or a prison record are not impairments.” Thus, if a person is unable to read because of a poor education, that person isn’t disabled.

This distinction between disability and inability is likely to be an issue that will be developed as the case moves forward. In all likelihood, addressing the matter will require expert testimony about the nature and effects of ADHD and its impact on Gray’s ability to read and other cognitive functions. Gray v. Columbia Gas of Virginia, 2:18-cv-00475-HCM-LRL.

Avoiding ADA claims

While the distinction between ADHD and an inability to read might ultimately allow Columbia to prevail in the lawsuit, there are several proactive, preventive steps you can take to avoid disability discrimination lawsuits in the first place. The EEOC recommends that you offer an oral test as an alternative to a written test for employees who have a disability that hinders their ability to read. If administering the test in an alternative format isn’t a viable option, the EEOC suggests assessing the ability of a disabled applicant or employee “through an interview, or through education, license, or work experience requirements.”
Further, if the employee or job applicant first becomes aware of having a disability that could have affected the test results only after the test is given, which is what Gray claims, you should have a policy requiring him to inform you immediately. At that point, you should consider providing a retest if a reasonable accommodation is available. Bear in mind, however, that the EEOC says you aren’t required to accommodate when an employee seeks a retest for an “essential function of the position and no reasonable accommodation was available to enable the individual to perform that function, or the necessary accommodation would impose an undue hardship.”

Because an appropriate assessment of your obligations under the ADA involves a number of complex issues, it’s always wise to consult with experienced employment counsel to make sure you have addressed all the necessary factors and have a solid factual and legal basis for the actions you take.

Editor’s note: Because of the various important issues Gray’s lawsuit raises for all employers, we will monitor the legal proceedings and keep you informed of key developments as the case moves forward.

Corey Zoldan is an attorney with DiMuroGinsberg PC and a contributor to Virginia Employment Law Letter. He may be reached at czoldan@dimuro.com.

Who Owns Your Company’s Social Media Accounts?

It happens every day. An employee takes over the responsibility of managing the social media accounts for an organization. Maybe it’s even their full-time job. The employee uses those accounts to promote the business, yet it takes on a persona that closely resembles the employee. The employee uses their individual user id and password and before you know it, they’ve taken a kind of ownership of the social media accounts.

Where does this fall under the company property umbrella? You would think it would be very clear—the company owns its advertising media, no matter what form it takes, right? But, what about a social media profile and its content? It can be so personal to the individual producing the thoughts. It’s their perspective, even though it might be derived from company information. Where does that fall?

An article on the subject, by DiMuroGinsberg attorney Jayna Genti, appears in the September, 2018 issue of the Virginia Employment Law Letter. It discusses a case involving a Virginia newspaper that recently asked a Virginia federal judge to force a former reporter to turn over access and use of what the newspaper claims is the company’s Twitter account. The reporter felt he personally engaged readers and subscribers to the account and followers to his reporting in particular. He felt it was something he could take with him to his next paper.

If you would like to obtain a copy of Jayna’s article entitled “Who Owns Your Company’s Social Media Accounts?”, or if you would like to subscribe to the Virginia Employment Law Letter, please contact Stephanie West at swest@dimuro.com.

Download the full “Who owns your company’s social media accounts?” article here.

Avoiding the Pitfalls of Leave under the ADA/FMLA

By: Jonathan R. Mook
As published by HRHero.com, a division of BLR, in the Virginia Employment Law Letter

Dealing with employees on Family and Medical Leave (FMLA) always is tricky. You can incur liability for interfering with an employee’s leave rights as well as for retaliating against an employee for seeking to exercise those rights or taking FMLA leave. Additionally, oftentimes an employee who qualifies for FMLA leave due to a serious health condition also may be disabled under the Americans with Disabilities Act (ADA). In this circumstance, you have two federal laws to worry about.

To help sort through these issues, we have asked DiMuroGinsberg partner, Jonathan R. Mook, who is a nationally recognized authority on the ADA and leave issues, to provide our readers guidance on how to avoid both FMLA and ADA claims.

Is it permissible to terminate an employee who is on FMLA leave?

The answer is “yes,” but proceed with care and caution.  Sometimes, while an employee is out on FMLA leave, the employer discovers that the employee has not been doing his or her job or has been engaged in some type of workplace misconduct that would justify termination. In this circumstance, the FMLA allows an employer to terminate the employee because it is a reason other than the employee’s taking or being entitled to the leave.  Bear in mind that any evidence of poor performance or misconduct should be sufficiently documented. That way, if, and when, an FMLA complaint with the Department of Labor or a lawsuit is filed, you will be able to present evidence that the basis for the employee’s termination was other than the employee’s taking (or need for) FMLA leave.

Even if it is permissible, do you advise the termination for misconduct of employees on FMLA leave?

I usually advise employers to wait and allow the employee to complete his or her FMLA leave.  When the employee returns to work, then the employer can confront the employee with the information that the employer has obtained while the employee was out.  During the meeting with the employee, the employer should ask the employee if there is any excuse for the employee’s misconduct or any mitigating factors.  If there are not, the employer can then take a job action.

When is it permissible to terminate an employee who has been on FMLA leave and has returned to work?

Again, it is permissible to terminate an employee for reasons other than the taking of FMLA leave (or the need for such leave), such as poor performance or misconduct.  The law does not require you to keep an unqualified or disruptive employee. The only circumstance in which an employer should consider letting an employee go for reasons relating to FMLA leave would be if the employee has falsified the FMLA documentation that the employee submitted to the employer to be approved for FMLA leave.  If an employee engages in fraud with respect to the taking of FMLA leave (for example, taking FMLA leave to go on vacation rather than for medical treatment), then the employer has a basis for termination.

What steps should an employer take to prepare for the possibility that an FMLA leave request will be followed by a need for an ADA reasonable accommodation?

Normally, it is the responsibility of the disabled employee to request a need for an ADA accommodation.  An employer need not anticipate an accommodation request.  However, where an employee has a serious health condition that rises to the level of an ADA disability, an employee may request leave for medical treatment and, possibly, recuperation.  If the employee is entitled to FMLA leave, the employer will provide the employee with the 12 weeks of FMLA leave (or longer under certain state laws).  After the FMLA leave expires, the employee may be entitled to additional leave as a reasonable accommodation under the ADA.

What is the EEOC’s position on leave as an ADA accommodation?

The U.S. Equal Employment Opportunity Commission (EEOC) has said that leave for medical treatment is a type of reasonable accommodation and that an employer may need to extend the leave until it becomes an undue hardship on the employer’s operations.  However, not all courts agree with the EEOC’s analysis.  In an opinion authored by Judge (now Justice) Neil Gorsuch, the Tenth Circuit Court of Appeals in its 2014 decision in Hwang v. Kansas State University said that an employer was not required to provide an employee suffering from cancer additional time off after the employer had already granted six months of paid leave.  Recently, in Severson v. Heartland Woodcraft, Inc., the Seventh Circuit said that a request for leave of several months over and above the twelve weeks of FMLA leave was not required as an ADA accommodation.

If additional leave is not granted, must the employer consider alternative accommodations?

Importantly, even if the accommodation of a multi-month leave of absence is not required under the ADA, you still need to explore other accommodations to allow a disabled employee to return to work following the expiration of that employee’s FMLA leave.  Such accommodations could be the elimination of those marginal job functions that the employee cannot perform or transferring the employee to a vacant position that the employee can perform notwithstanding the employee’s limitations caused by the disability.  You need to think ahead to take into account these possibilities. Unfortunately, there is not one easy answer. To make sure you have checked all the boxes, it always is advisable to consult with experienced employment counsel.

Jonathan R. Mook is a nationally recognized authority on the Americans with Disabilities Act and is a co-editor of the Virginia Employment Law Letter. For questions regarding this article or other employment law issues, you may contact Jonathan at jmook@dimuro.com.

Is It OK To Fire An Employee For A False Harassment Report?

Federal anti-discrimination law generally protects an employee who reports discriminatory conduct, including sexual harassment at work. However, do the legal protections apply when an employee knowingly makes a false report of being harassed?

Recently, the Fourth Circuit Court of Appeals (whose rulings apply to all Virginia employers) answered this question with a definitive “no.” An article discussing the Fourth Circuit’s decision by DiMuroGinsberg attorney, Jayna Genti, appears in the August, 2017 issue of the Virginia Employment Law Letter. As Jayna’s article explains, the focus of analysis as to whether an employer acted unlawfully is on the employer’s subjective motivation for the action it took. If the employer’s subjective motivation was prompted by its belief that the report of harassment was knowingly false, then the employer may not be liable for illegal retaliation.

If you would like to obtain a copy of Jayna’s article entitled “Fourth Circuit: It’s OK to Fire Employee for False Harassment Report,” please contact Michele Kraftschik at mkraftschik@dimuro.com.