We all have a role in stopping gun violence

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by Jonathan R. Mook
DiMuroGinsberg, PC

As I am writing this message to you, the readers of Virginia Employment Law Letter, the last of the 22 funerals for the victims of the tragic shooting in El Paso are being held. It seems unfathomable that this horrific act was followed less than a day later by another mass shooting outside a bar in Dayton, Ohio.

Summer of tragedy

Put bluntly, this has been a summer of tragedy. Starting with the shootings of 12 Virginia Beach city employees by a coworker who had just resigned, the summer days have been marked by the names of the gun violence victims. And, unfortunately, by the time you read this message, I am all too certain other shootings will have been added to the list.

If the too many lives lost aren’t enough, we also seem paralyzed as a nation to come to grips with the evil that is amongst us. We appear unable or unwilling to take concrete steps to reduce the unconscionable number of persons whose lives are cut short by gunfire each year.

Political paralysis

After the Virginia Beach mass shooting, Governor Ralph Northam summoned lawmakers back to the state capitol for a special session to take up a package of gun control measures. The governor said the action was urgently needed to prevent further killings like those at Virginia Beach.

The special session ended virtually as soon as it began, however, with no action being taken—even though opinion polls suggest a vast majority of Commonwealth residents support gun safety legislation, including a ban on silencers and high-capacity ammunition magazines, as well as broadening local government’s ability to limit guns in city buildings.

What can HR do?

Given the fractious political times, it doesn’t seem likely we can rely on our public officials to keep guns out of the hands of those who may cause harm. Fortunately, as employers, managers, and HR professionals, you can play a role in helping to lessen the chance that your coworkers will become the victims of a shooter’s hostility.

Of course, there are no foolproof tactics to ensure your business won’t become the next target of a deranged individual’s desire to seek revenge or have his 15 minutes of fame. Nevertheless, here are five measures you can take to lessen the likelihood of a tragic event from occurring:

Create secure and safe work environment. Although we’d all prefer to have an open work environment, unfortunately, you need to limit access solely to those who work there or otherwise have authorization to be present. That is probably the most basic step you can take to help prevent outsiders (including former employees and current workers’ spouses or significant others) from entering your facility to wreak vengeance or otherwise engage in violent conduct. Here are some concrete steps:

  • Securing your facility can range from the simple act of installing locks on office doors to putting in more sophisticated security systems with key card access and video monitoring.
  • Visitors who have been authorized to access your facility should be required to show identification and wear a visitor’s pass, which must be returned to a guard or receptionist when they exit.
  • If you’ve received threats from a disgruntled former employee, alert the security guards at your facility, and provide them with a photograph of the individual.
  • Stopping a potential shooter before he gets into your facility can go a long way toward preventing a tragic situation from occurring.

Institute security training. You probably provide employees and managers with training already. In addition to the traditional types of instruction, consider instituting security training to inform employees about the behavior or red flags that may indicate a coworker could be poised or planning to engage in violent behavior.

You don’t want employees providing you with mere suppositions based on their “feelings.” But, if certain actions or behaviors are causing concern that your employees observe and can articulate to human resources, encourage them to let you know. That way, you (not the employees) can evaluate the situation and take appropriate action if necessary. Let them be your eyes and ears.

Have open-door policy. Make sure (and continually emphasize to employees) that HR has an open-door policy. Any time they feel they aren’t being treated fairly, they should feel free to come to HR and discuss the situation.

Don’t let workplace problems fester. Doing so will only exacerbate the situation, which, if left unaddressed for too long, may well explode into a violent confrontation. Nick problems in the bud while they are manageable. Don’t wait until a crisis develops.

Review employee handbook and other policies. Your written policies should clearly state (1) workplace safety is of the highest priority, and (2) your company or organization has zero tolerance for violence. Also, make sure your employees understand that engaging in violent or threatening conduct will be subject to discipline that includes termination when appropriate.

Private employers should have a written policy in their handbook (and, additionally, distributed to all employees) stating that weapons are prohibited inside the workplace and in their parking areas. (Public employers have less leeway.)

If you have reason to believe an employee has brought a firearm into the workplace in violation of your written policy, take prompt action. Inform the individual that having a gun in the workplace is prohibited, and unless he removes the weapon, he will be terminated. The Second Amendment gives persons the right to bear arms, but the restriction doesn’t apply to private employers or allow employees to carry weapons wherever they like.

Impose discipline, including termination, in respectful fashion. We all remember the classic Aretha Franklin song “Respect.” The recording has as much relevance today as it did in the 1960s, not only in personal relationships with our friends, spouses, or significant others, but also with employees and coworkers.

Train your managers to be aware and understand that their actions may give rise to a violent reaction by an employee under their supervision. Negative performance reviews can certainly trigger violent reactions by the individual being evaluated. When realistically analyzing and criticizing an employee’s work, be as constructive as possible. The point of your remarks should be to alert the employee about the deficiencies and, more important, provide him with a pathway to perform better.

Accordingly, your supervisors, in conjunction with HR, should think through how a negative evaluation will be conveyed to the employee. Attacking or demeaning him for poor work performance benefits no one—not him, not you, and certainly not your company. You could be sowing the seeds of resentment that later lead to a violent outburst and the potential loss of life.

If you need to terminate an employee for job performance reasons, again, do so in a respectful—not humiliating—way. Don’t escort an employee out the door in front of all of her colleagues, which can only create bitterness on her part. Shaming an individual isn’t an appropriate technique for supervising or managing your employees.

Bottom line

The five recommendations above are but a few of the steps you can take to deal with what seems to be an epidemic of violence in our country. As an HR professional, you can play an important role in ensuring your workplace is safe, and employees feel secure enough to carry out their job duties in a cooperative and productive manner. To make the world a better place, the simple truth is we need to start in our own backyards. Yes, it’s only a start, but a critically important one.

Jonathan R. Mook is a founding partner with DiMuroGinsberg, PC and an editor of Virginia Employment Law Letter. He may be reached at jmook@dimuro.com or 703-684-4333.

DGRead 19.09.01

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

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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.

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

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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