In Tolbert v. Smith, No. 14-1012-cv, 2015 U.S. App. LEXIS 10656 (2d Cir. June 24, 2015), the Second Circuit issued a decision holding that extending a probationary term instead of granting a teacher tenure constitutes an adverse employment action sufficient to support a claim for race discrimination — the fact that the teacher is provided with another year of probationary employment notwithstanding. The court noted that offering a fourth year of probation is intertwined with a denial of tenure, which amounts to the “denial of a material improvement in the conditions of the plaintiff’s employment” — since the benefits of having received tenure are denied, including benefits such as termination only for cause. Accordingly, such a refusal of a material employment benefit for a discriminatory reason is violative of the civil rights statutes.
Articles Discussing General Issues Under Title VII.
In 2014 regulators increased their focus on the content of employee confidentiality, settlement and separation agreements. In particular, these regulators have expressed concern about clauses in agreements that may be construed as preventing an individual from cooperating or communicating with an investigatory agency.
A decision by the U.S. Supreme Court on whether and to what extent a court may enforce the Equal Employment Opportunity Commission’s (EEOC) mandatory duty to conciliate discrimination claims before filing suit could significantly change the landscape of EEOC litigation for employers. The court will hear the case during its 2014–2015 term, and its decision has the potential to prevent federal courts from reviewing pre-suit conciliation efforts. This would, in effect, allow the EEOC to proceed unchecked with respect to conciliation. It could also result in less productive conciliation and increased litigation for employers. More importantly, such an outcome would deprive employers of any meaningful recourse in the event that the EEOC’s conciliation efforts are not made in good faith.
On October 7, 2014, District Judge John Darrah of the North District of Illinois dismissed the Equal Employment Opportunity Commission’s lawsuit against CVS Pharmacy. Equal Employment Opportunity Commission v. CVS Pharmacy, Inc., civil action no. 1:14-cv-00863, (N.D. Ill, October 7, 2014) (“10/7/2014 Memorandum and Order”). This lawsuit has been the subject of significant media attention due to the EEOC’s challenge to common provisions included in many standard severance agreements. While the decision is helpful for employers in that the EEOC did not prevail in this initial effort, the decision leaves many questions unanswered regarding the EEOC’s recent enforcement efforts and the appropriate employer response to the EEOC’s actions.
This summer marked the 50th anniversary of the Civil Rights Act of 1964, legislation first introduced by President John F. Kennedy in response to the growing civil rights movement. For employers, the most important component of the act is Title VII, which prohibits employment discrimination on the basis of race, color, sex, national origin, and religion. A number of landmark decisions, legislation, and executive orders have broadened the scope of Title VII and resulted in greater protection for women and minorities in the workplace.
Employers often use waivers and releases of claims in agreements with former employees, either as part of a separation agreement at the time employment ends or in a settlement agreement after a former employee has raised claims against the employer. Both of these types of agreements have garnered attention lately, serving as a reminder of some best practice approaches in each context.
Members of the House and Senate on Thursday introduced legislation that would effectively overturn last year’s U.S. Supreme Court’s decision in Vance v. Ball State University. In Vance, the Court held that an employee is not a “supervisor” – and therefore does not subject the employer to vicarious liability under Title VII for the employee’s actions – unless the employee is empowered to take tangible employment actions against other employees. The Fair Employment Protection Act (H.R.4227, S. 2133) introduced in the House by Reps. George Miller (D-CA) and Rosa DeLauro (D-CT), and in the Senate by Sen. Tammy Baldwin (D-WI), “corrects the error in the Vance decision and clarifies under Title VII of the Civil Rights Act, as well as other federal antidiscrimination statutes, who counts as a ‘supervisor’ for the purpose of holding employers responsible for unlawful harassment.”
On February 7, 2014, the Chicago District Office of the Equal Employment Opportunity Commission brought suit in the U.S. District Court for the Northern District of Illinois against CVS Pharmacy, Inc., claiming that a severance agreement used by the company violates Title VII of the Civil Rights Act of 1964 because it is “overly broad, misleading and unenforceable….” Equal Employment Opportunity Commission v. CVS Pharmacy, Inc., civil action no. 14-cv-863 (N.D. Ill., February 7, 2014). This ASAP will address the background to this lawsuit, describe the EEOC’s new and aggressive position toward severance agreements, and provide recommendations for employers.
On February 7, 2014, the Equal Employment Opportunity Commission (EEOC or Commission) sued CVS Pharmacy Inc. in federal court in Chicago to invalidate the company’s standard severance agreement. The lawsuit raises concerns because it attacks language that employers commonly use in severance agreements.
In EEOC v. Mach Mining, LLC,1 the Seventh Circuit became the first federal circuit to foreclose an employer’s ability to use the implied affirmative defense that the Equal Employment Opportunity Commission (EEOC) failed to conciliate prior to bringing suit. Under Title VII, after finding reasonable cause to believe a charge of discrimination has merit, the EEOC may sue only after it “has been unable to secure from the respondent a conciliation agreement acceptable to the Commission.”2 The court of appeals held that, based on the conciliation language in Title VII and Seventh Circuit precedent, the EEOC’s approach to conciliation during the administrative charge process is not judicially reviewable and not an affirmative defense to be used against the agency. The Seventh Circuit’s holding is contrary to every other circuit that has evaluated this issue.
Goldberg Segalla LLP’s Governmental Liability, Civil Rights, and Labor and Employment Newsletterprovides a summary of the latest court decisions shaping the landscape of civil rights, government liability and employment practice. The intent of our review is to provide local governments, school districts, governmental agencies, governmental officials, private entities and insurance companies with an overview of the national decisions impacting the representation and defense of all entities that may be subject to claims involving individual civil rights and employment practices. We greatly appreciate your interest in our newsletter and ask for your commentary, as well as questions. Please feel free to share this publication with your colleagues.
In Thompson v. ABVI Goodwill Services, 2013 U.S. App. LEXIS 18680 (2nd Cir., Sept. 9, 2013, unpublished decision), the Second Circuit upheld the District Court’s dismissal of an age discrimination case. The court held that the plaintiff’s supervisor’s comments indicating the plaintiff should “retire” were insufficient to raise an inference of discrimination as it was but one comment, and separated by 20 months from the plaintiff’s termination. Likewise, comments as to where the plaintiff “should work” were ignored by the court, as they contained no age related reference.
The workplace is often incredibly uncomfortable following an employee’s claim of work-related discrimination. The employer must balance its goal of productivity and profit while maintaining employee morale and equality on the job. At times, an employer facing a charge of discrimination may feel hamstrung by the looming charge and may permit employee conduct that was otherwise sanctionable out of fear of what may be perceived as retaliation against the employee for filing a charge. But, as the recent decision out of the Seventh Circuit proves, a charge of discrimination does not provide the employee with free reign to violate work-place protocol.
Last week, the U.S. Supreme Court issued a much anticipated ruling in a 5-4 decision which will help employers defend themselves against Title VII actions involving supervisors. In an earlier alert, we discussed the salient facts of Vance v. Ball State University, No. 11-556, Supreme Court of the United States (June 24, 2013), and the splits in the federal circuits over the definition of supervisor for purposes of vicarious liability under Title VII.
Executive Summary: On June 24, 2013, the United States Supreme Court issued an opinion favorable to employers, determining the term “supervisor” under Title VII should be defined narrowly. In Vance v. Ball State University, the Court limited employers’ vicarious liability for workplace harassment by a “supervisor” to harassing conduct by persons with authority to take tangible employment actions (hire, fire, demote, promote, transfer, discipline) against the victim. For the first time defining “supervisor” for Title VII purposes, the Court defined it narrowly and favorably to employers. The Court split 5-4 along ideological lines with Justice Alito writing the majority opinion for the conservative wing of the Court. Justice Ginsburg was joined in her dissent by Justices Sotomayor, Breyer, and Kagan.