Co-Worker’s Offensive Statements to Colleague May Not Give Rise to Hostile Work Environment Claim

By: Stacey Rose Harris

Nicole Bazemore is an African-American who worked at Best Buy.  One day at work, her white colleague, Anne Creel, held up a hazelnut and said that she used to refer to those kinds of nuts as “N[….]r T[…]s.”  Bazemore was deeply offended and reported Creel’s conduct to management.  After some time, Bazemore was told that the situation had been addressed, but she was not told specifically what action was taken.  Creel did not make these statements again, but she was also not fired.  Nevertheless, Bazemore was deeply humiliated by the incident and believed it should have been addressed more publicly and with more severity.  She sued Best Buy in federal court in Maryland, asserting a claim of hostile work environment under Title VII of the Civil Rights Act.

Best Buy moved to dismiss Bazemore’s claim, arguing that Creel’s conduct could not be imputed to it.  Specifically, to state a claim against an employer for hostile work environment, the plaintiff must allege four elements: (1) that she was subject to unwelcome conduct; (2) based on her race or sex; (3) that was severe enough to make her work environment hostile or abusive; and (4) which conduct is imputable to her employer.

The question of imputation was the subject of the court’s analysis.  This element was problematic for Bazemore because the statement was made by a co-worker, not a superior.  The law in the Fourth Circuit is that, to show imputation, a plaintiff must allege that the employer knew, or should have known, about the harassment and failed to take action reasonably calculated to stop it.  Bazemore had alleged that she informed Best Buy of Creel’s statement; that Best Buy had taken action (albeit not action as forceful as Bazemore would have liked), and that Creel’s conduct did not repeat.  Based on Bazemore’s own allegations, she failed to show that Best Buy knew or should have known of the conduct and failed to take reasonable actions to stop it.  When the wrongdoer is a superior, it is more difficult for the employer to overcome the burden of showing that it did not know of, or took reasonable actions, to stop the conduct.

Even if Best Buy’s corrective measures were not as strong as Bazemore would have liked, the Court noted that it does not “does not sit as a kind of super-personnel department weighing the prudence of employment decisions made by firms charged with employment discrimination . . ..” Rather, Bazemore’s allegations that Best Buy did address the situation, and that Creel’s conduct did not occur again, were sufficient to defeat Bazemore’s ability to satisfy the fourth element of her claim.

The take-away of this ruling for employers is to take immediate action in response to racially or sexually offensive remarks, and document those efforts, including follow-up.  These kinds of measures may be sufficient to defeat a claim of hostile work environment when the wrongdoer is a colleague, (not a superior) of the plaintiff.

4th Circuit upholds shortened limitations period in arbitration agreement

By: M. Jarrad Wright and Jonathan R. Mook, DiMuroGinsberg P.C.

Over the last several years, employers increasingly have been requiring employees to sign mandatory arbitration agreements as a condition of employment. The trend has been on the uptick because of concerns about the ever-increasing cost of litigation and the potential for runaway juries to award millions of dollars in damages. The U.S. 4th Circuit Court of Appeals (whose rulings apply to all Virginia employers) recently highlighted an additional benefit of arbitration. The court ruled an employment agreement’s requirement that any claim be made within one year was enforceable even though a number of employment-related claims the employee asserted had longer limitations periods.

Facts

Michael Bracy worked as a truck driver for Lancaster Foods LLC. When he was hired, he signed a mandatory arbitration agreement, which required any claim against the company to be filed within one year and heard by an arbitrator, not a jury.

After Bracy suffered an on-the-job injury, he and Lancaster disagreed about his work restrictions, and ultimately, the company viewed his position as a resignation. He sued the company in state court asserting various employment claims.

The case was moved to federal district court, and Lancaster sought to dismiss Bracy’s claims and compel arbitration based on the terms of the arbitration agreement he had signed. He opposed the company’s request, arguing the arbitration agreement was unconscionable and couldn’t be enforced because it shortened all applicable statutes of limitation to one year. The district court rejected his contention the arbitration agreement wasn’t enforceable and dismissed his suit.

4th Circuit’s decision

Bracy appealed the district court’s decision to the 4th Circuit, which is based in Richmond and whose decisions apply to federal courts not only in Virginia, but in West Virginia, North and South Carolina, and Maryland as well. On appeal, the court made short shrift of his argument that Lancaster’s arbitration agreement couldn’t be enforced because it shortened the statute of limitations for employment claims.

Relying on prior established 4th Circuit law, the court held that as “a general rule, statutory limitations periods may be shortened by agreement, so long as the limitations period is not unreasonably short,” and as long as the statute at issue doesn’t prohibit contractually shortened statutes of limitations.

The 4th Circuit also noted contractual limitation periods of one year or less have been found to be reasonable. Accordingly, the court affirmed the district court’s dismissal of Bracy’s lawsuit. Bracy v. Lancaster Foods, LLC, Case No. 19-1292.

Bottom line

The 4th Circuit’s decision serves to confirm the benefits of having your employees sign mandatory arbitration agreements as a condition of employment. The agreements must be properly tailored, however, to ensure they will pass court muster. Although the 4th Circuit in Bracy approved an arbitration agreement with a limitation period of one year, its reasoning makes clear a 30-day limitation for pursuing a claim, in all likelihood, would render the agreement unconscionable and unenforceable.

Where to draw the line on the statute of limitations as well as other provisions in an arbitration agreement are matters that should be determined based on consultation with experienced employment counsel. The last thing any employer wants is to require employees to sign mandatory agreements to arbitrate and, later, find out the agreements are unenforceable because of an unconscionable provision.

Jarrad Wright and Jonathan R. Mook are partners at DiMuroGinsberg P.C. in Alexandria, Virginia, and can be reached at mjwright@dimuro.com and jmook@dimuro.com.

Virginia Legislature to debate paid leave

By: Jayna Genti, DiMuroGinsberg P.C.

When the 2021 Virginia General Assembly reconvenes, the session will inevitably be colored by the ongoing COVID-19 pandemic. For starters, the House of Delegates plans to gavel in its regular session virtually, with the state Senate again planning to meet at the Virginia Science Museum to provide for greater social distancing. Significantly, lawmakers are set to resume debate over whether to require employers to offer paid sick and family medical leave.

Movement toward paid leave
About 1.2 million Virginians have no paid sick time or family leave, according to a November 2020 study by the Shift Project. To address the lack of paid leave, various members of the legislature for years have pushed to pass laws requiring most employers to provide the benefit. The members argue the legislation would help maintain the state’s competitive edge in attracting workers, as Maryland and 13 other states plus the District of Columbia have already enacted such protections for employees.

And, with the rise of the COVID-19 pandemic, the importance of paid leave legislation to both employees and the public health has never been clearer. According to Richmond and Henrico County Health Director Dr. Danny Avula, the spread of the coronavirus in the Commonwealth could have been drastically reduced if paid leave had been available to more workers. That’s because “the vast majority of our exposures and our outbreaks are happening in workplaces,” Avula said.

The situation is exacerbated by the fact that many people who lack paid sick leave earn low wages, such as grocery and fast-food workers. They don’t have the option to work remotely. “Many of them are the front-line jobs that keep this country running in the pandemic,” said Delegate Elizabeth R. Guzman of Prince William, who advocates for a paid leave mandate. “No one should have to choose between their health and a paycheck.”

“If the pandemic has taught us anything, it’s the importance of staying home when you’re sick,” said Kim Bobo, executive director of the Virginia Interfaith Center for Public Policy, which is part of a coalition called Virginians for Paid Sick Days that was formed to advance the issue.

Last year’s unsuccessful efforts
Nevertheless, actually enacting a paid leave law during the legislative session will be an uphill battle. In 2020, the Virginia House and Senate passed slightly different versions of a paid sick leave bill, but the legislation died in the Senate in March, just as the state was recording its first COVID-19 cases. A major sticking point was offering the benefit to part-time workers, many of whom don’t have the option to work remotely.

During an extra-long special legislative session that ran from summer to fall, a compromise effort to offer 10 days of paid leave if employees or their relatives contracted the coronavirus also failed. The failure occurred in part when members disagreed over what businesses to exempt: (1) employers with fewer than 25 employees under the bill backed by Governor Ralph Northam or (2) employers with fewer than six employees under Guzman’s bill. The measure advancing the furthest, from Senator Barbara A. Favola of Arlington, would have exempted employers with fewer than 15 employees.

This year’s push
In 2021, legislators are still working out their bills’ details. Favola plans to introduce a bill requiring only employers that already offer a sick leave program to allow employees to use up to five days of the benefit to care for an immediate family member who is ill. In its current form, the bill would exempt employers with fewer than 25 employees.

Guzman, who is running for lieutenant governor, plans to sponsor a much more robust measure that would apply to businesses with 26 or more employees. The legislation would require certain businesses to provide at least five paid sick days to full-time employees (part-time workers wouldn’t be covered). The paid sick leave envisioned by both bills could be used for not only the coronavirus but also any type of serious health condition.

Under Guzman’s proposal, the paid leave mandate would apply to at least eight categories of employees defined as “essential,” including those working in emergency services, food plants, child care, domestic work, education, health care, and home health care. The requirement also would cover employees of essential retail businesses, as defined by Governor Northam’s Executive Order dealing with the COVID-19 pandemic. The order encompasses staff at grocery stores, pharmacies, liquor stores, convenience stores, gas stations, banks, and pet stores, among other establishments.

“We’re really narrowing down the bill to essential workers because after speaking with a few senators, they said it’s something they could support,” Guzman said. “We would love to give it to the 1.2 million Virginians that don’t have access currently, but the reality is we don’t have the votes.” And, as a safety valve, Guzman’s bill also will include a provision allowing certain businesses experiencing serious financial hardship to be exempted from the mandate.

Outlook for legislation
The chances look good for legislation mandating some version of paid leave to pass the House of Delegates. Even in a narrowed form, however, any legislation likely will have a hard time in the Senate. Moreover, should an employer paid sick leave mandate make its way through both chambers, the legislation likely wouldn’t take effect until at least July 1, 2021.

Given the importance of the issue, we will continue to monitor the progress of the paid leave laws in this year’s Virginia legislative session. Stay tuned for further developments.

Jayna Genti is an attorney with DiMuroGinsburg PC in Alexandria, Virginia. She may be reached at jgenti@dimuro.com.

Trump’s Executive Order put on hold

By: M. Jarrad Wright, DiMuroGinsberg P.C.

Just before Christmas, outgoing President Donald Trump’s controversial Executive Order (EO) banning federal contractors and subcontractors from offering “workplace training that inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating” hit a major roadblock. On December 22, 2020, California Federal District Court Judge Beth Labson Freeman granted a preliminary nationwide injunction prohibiting the EO from taking effect. The order was sought by a number of nonprofit community organizations and consultants serving the lesbian, gay, bisexual, and transgender community.

Injunction in place
In her order, Judge Freeman, an Obama appointee, found the groups seeking the injunction were likely to prevail at trial on their arguments that federal contractors’ free speech rights were being restricted. She acknowledged the government “has a legitimate interest in controlling the scope of diversity training in the federal workforce and can limit the expenditure of federal funds.” Nonetheless, she found the EO’s scope was overbroad because, as worded, it would prohibit contractors from using their own funds to train employees on matters that “potentially have nothing to do with the federal contract.”

While the nationwide injunction is in place, federal contractors are free to proceed in the normal course as long as the activity is covered by the court’s injunction. Although the Department of Justice has the right to appeal or seek modification of the order, it’s highly unlikely the appeal process could be completed before the presidential inauguration on January 20, 2021.

Spokespersons for the incoming Biden administration have already indicated the repeal of the diversity EO will occur early in his administration. Although President Trump hasn’t yet conceded, Congress has certified the election results, so Joe Biden will be sworn in as president on January 20, 2021.

Bottom line
As things now stand, it isn’t clear when repeal may occur. In the meantime, therefore, employers that have federal contracts or subcontracts should consult with experienced counsel and stay abreast of further significant legal developments in this area of the law.

Editor’s note: For an extended discussion of the EO and its implications, see M. Jarrad Wright’s article, “Trump’s Executive Order on diversity training creates new uncertainty for employers” in the December 2020 issue of Mid-Atlantic Employment Law Letter.

  1. Jarrad Wright is a partner at DiMuroGinsberg P.C. in Alexandria and can be reached atmjwright@dimuro.com.

Americans with Disabilities Act Recent Case Law Developments June, 2020

By: Jonathan R. Mook and Colete Fontenot
DiMuroGinsberg, PC

Title I – Employment Provisions

Is Plaintiff Actually Disabled Under ADA?
In order to have an actual disability cognizable under the Americans with Disabilities Act, an individual must be able to demonstrate that he or she has a physical or mental impairment that substantially limits a major life activity.  Merely having an impairment, even a permanent one, is not sufficient, as the Eleventh Circuit Court of Appeals explained in Lewis v. City of Union City, 934 F.3d 1169 (11th Cir. 2019)In that case, the court considered whether a police officer who had suffered a heart attack that left her with a permanent injury to her heart was disabled under the ADA.  The court concluded that she was not because the only limitation resulting from the officer’s heart impairment was a periodic shortness of breath.

Broad Construction of Disability
In passing the ADA Amendments Act in 2008, Congress sought to broaden the interpretation of the definition of disability and to increase the number of individuals protected by the statute.  Thus, in Morrissey v. Laurel Health Care Co., 943 F.3d 1032 (6th Cir. 2019), the Sixth Circuit Court of Appeals held that an employee had presented sufficient evidence to raise a fact question for the jury as to whether she was disabled under the amended ADA.  The employee suffered from a number of back impairments, and after working an eight to twelve-hour shift, she had difficulty walking, standing, lifting and bending and experienced pain constantly.  The employee testimony was supported by that of the employee’s daughter, who reaffirmed her mother’s limitations.  The Sixth Circuit said that because the ADA Amendments Act requires that coverage under the statute is to be construed broadly, the employee had presented sufficient evidence for her case to be heard by the jury.

Regarded as Disabled
Even if an individual does not come within the definition of having an actual disability under the ADA, the person still may be protected by the statute if the employer regards the person as disabled.  That was the case in Lewis v. City of Union City, 934 F.3d 1169 (11th Cir. 2019) in which the Eleventh Circuit Court of Appeals held that a police officer who had suffered a heart attack had raised a jury issue as to whether her employer had regarded her as disabled by placing her on leave without pay due to concerns about her heart condition.

Qualified Individual with a Disability
Not every person who has an ADA disability is entitled to the statute’s protections.  The individual must be a qualified individual with a disability, that is a person who, with or without reasonable accommodation, can perform the essential functions of the job.  What constitutes a job’s essential functions was the subject of the Fifth Circuit Court of Appeals’ decision in Clark v. Champion Nat’l Sec., 947 F.3d 275 (5th Cir. 2020).  The case involved a diabetic employee, who would fall asleep at his desk during the work day.  Since the employee’s job was to perform uniformed security services, the court held that the employee was not qualified because maintaining consciousness is a basic element of any job.

Retaliation
It is unlawful to retaliate against a disabled employee for seeking a reasonable accommodation.  That principle was reaffirmed by the Sixth Circuit in Morrissey v. Laurel Health Care Co., 943 F.3d 1032 (6th Cir. 2019), where a former employee claimed that her employer had targeted her to work a twelve-hour shift even though she had been medically restricted from doing so because the employee had requested a reasonable accommodation consistent with her medical restrictions.  The circuit court said that the employee’s requests for an accommodation constituted protected activity, and the employer’s refusal to adhere to the employee’s medical restrictions was retaliatory and unlawful.

Reasonable Accommodation
An employee need not use any magic words such as “ADA” or “reasonable accommodation” to trigger the ADA reasonable accommodation interactive process with the employer.  That principle was highlighted by the Eighth Circuit in Garrison v. Dolgencorp., 939 F.3d 937 (8th Cir. 2019), where the court held that an employee had made a sufficient request for a reasonable accommodation when the employee informed her employer that she suffered from depression and anxiety and made it clear that she was seeking a leave of absence due to her medical condition.

Title III – Public Accommodations and Commercial Facilities

What is a Disability Under Title III?
Learning disabilities are covered under Title III of the ADA.  That is the case even though an individual diagnosed with a learning disability is able to achieve academic success.  That was the situation in Ramsay v. Nat’l Bd. of Med. Examiners, 2019 U.S. Dist. LEXIS 222782 (E.D. Pa. Dec. 31, 2019)where the federal district court for the Eastern District of Pennsylvania held that a medical student who had been diagnosed with ADHD was disabled despite her prior academic successes and her performance on standardized tests.

Are Websites Covered by Title III?
In Thurston v. Midvale Corp., 2019 Cal. App. LEXIS 830 (Cal. App. Sept. 3, 2019), the California Court of Appeals ruled that Title III of the ADA applies to a restaurant’s website and that the restaurant was obligated to make its website compliant with the Web Content Accessibility Guidelines under both Title III of the ADA and California state law.

Service Animals

As an accommodation under Title III of the ADA, a public accommodation may need to alter a no dogs allowed policy to allow an individual with a disability to be accompanied by a service animal.  In Matheis v. CSL Plasma, Inc., 936 F.3d 171 (3rd Cir. 2019), the Third Circuit Court of Appeals held that it would be for a jury to determine whether a plasma donation center was obligated to alter its no animals policy to allow a patient who suffered from anxiety to be accompanied by her service animal.

Franchisor/Franchisee Liability
If a franchisee is sued for its failure to remove architectural barriers, can the franchisor be sued too?  In most cases the answer is no because the franchisor had no specific control over the franchisee’s accessibility to the disabled.  This was the outcome in Sullivan v. Doctor’s Assocs. LLC, 2020 U.S. Dist. LEXIS 11562 (S.D.N.Y. Jan. 17, 2020), where the federal district court for the Southern District of New York dismissed a franchisor as a defendant in a Title III lawsuit alleging that the franchisee had failed to remove architectural barriers.  In doing so, the district court reasoned that the plaintiff merely alleged that the franchisor exerted “general control” over the franchisee’s restaurant, but had failed to allege any facts to show that the franchisor specifically controlled the restaurant’s accessibility.

Mr. Mook is a nationally recognized practitioner in employment law and has written two treatises : Americans with Disabilities Act: Employee Rights and Employer Obligations and Americans with Disabilities Act: Public Accommodations and Commercial Facilities, both published by LexisNexis. He represents employers and businesses on matters relating to employment law, business torts and business disputes.

Mr. Mook frequently counsels employers on issues involving compliance with the ADA and accommodating disabled employees, as well as other employment related matters. Mr. Mook is a co-editor of the Mid-Atlantic Employment Law Letter and is a regular contributor to several legal publications, including Bender’s Labor & Employment Bulletin. He is included in Best Lawyers in America (2019 ed.) for employment law.

Mr. Mook is a member of the Virginia and District of Columbia Bars, and is a member of the Labor & Employment Law Section of the District of Columbia Bar and has been a member of the Alexandria Commission on Persons with Disabilities. He earned his Juris Doctor from Yale Law School.

DGRead 21.01.15

4th Circuit upholds shortened limitations period in arbitration agreement; Rocket Docket Update; Virginia creates Office of Civil Rights to target discrimination; DG/30 Milestone

DGRead 21.01.01

International Municipal Lawyers Association (IMLA) Asks Jonathan Mook to Update Them on the ADA; Rocket Docket Update; Michele Kraftschik, Our Unsung Hero; DG/30 Milestone