The United States Supreme Court granted certiorari on Monday in Vance v. Ball State University (Docket No. 11-556) to determine who is considered a supervisor under Title VII.The question that the Supreme Court will resolve is whether the supervisor liability rule: (i) applies to harassment by those whom the employer vests with authority to direct and oversee their victim’s daily work, or (ii) is limited to those harassers who have the power to “hire, fire, demote, promote, transfer, or discipline” their victim.
Plaintiff Vance brought a suit for hostile work environment and retaliation under Title VII. The district court dismissed all of her claims, granting summary judgment in favor of the university. Vance appealed the Seventh Circuit Court of Appeals.
The Seventh Circuit held that a supervisor for purposes of imputing liability to the employer for violation of Title VII is only an individual with the authority to hire, fire, demote, promote, transfer, or discipline an employee, not persons who had authority to direct an employee’s daily activities but did not have authority to take formal employment actions in regards to the employee. Prior Supreme Court precedent establishes that employers are only liable for co-worker harassment under Title VII if the employer was negligent in discovering or remedying the harassment, and the university was not negligent in this case.
Yesterday, the 7th Cir. issued a ruling in Ekstrand v. School District of Somerset, No. 11-1949 (June 26, 2012) upholding a jury verdict in favor of the plaintiff (teacher) in an ADA claim.The Court held that the record contained sufficient evidence to support the jury’s verdict. The teacher claimed that her employer failed to accommodate her disability by denying her request to switch to classroom that had exterior window to alleviate her symptoms of seasonal affective disorder. While the school pointed to certain evidence that supported its claims that (a) the teacher was not qualified individual with disability and (b) that decision-maker was unaware of the teacher's disability, the jury was free to credit the contrary testimony presented by the teacher and her expert witness.
Christopher et al v. Smithkline Beecham Corp., No. 11-204. (Decided June 18, 2012).
Last week the Supreme Court issued a ruling in an FLSA case. In the case, two sales representatives of a large pharmaceutical company sued their employer, alleging that they were owed overtime wages. The pharmaceutical company argued the sales representatives were not entitled to overtime wages because they were classified as “outside salesmen,” who are exempt from the federal law that requires payment of overtime wages. Justice Alito delivered the opinion of the Court wherein the Supreme Court held that the sales representatives were "outside salesmen" under the most reasonable interpretation of the DOL's regulations, and, as such, are not entitled to overtime wages.More specifically, under the Fair Labor Standards Act (FLSA) employers must pay employees overtime wages, but this requirement does not apply with respect to workers employed "in the capacity of outside salesman," §213(a)(1). Congress did not define the meaning of "outside salesman," but it delegated authority to the Department of Labor (DOL) to issue regulations to define the term. The DOL has three regulations that relate to the term:
1) 29 CFR §541.500 defines "outside salesman" to mean "any employee . . . [w]hose primary duty is . . . making sales within the meaning of [29 U. S. C. §203(k)]." §§541.500(a)(1)-(2). Section 203(k) states that "'[s]ale' or 'sell' includes any sale, exchange, contract to sell, consignment for sale, shipment for sale, or other disposition."
2) §541.501 clarifies that "[s]ales within the meaning of [§203(k)] include the transfer of title to tangible property." §541.501(b).
3) §541.503 provides that promotion work that is "performed incidental to and in conjunction with an employee's own outside sales or solicitations is exempt work," whereas promotion work that is "incidental to sales made, or to be made, by someone else is not." §541.503(a)
In this case, the pharmaceutical sales representatives' primary goal was to obtain a nonbinding commitment from doctors to prescribe the employer's products in appropriate cases. Each week, petitioners spent about 40 hours in the field calling on physicians during normal business hours and an additional 10 to 20 hours attending events and performing other miscellaneous tasks. The employees were not required to punch a clock or report their hours, and they were subject to only minimal supervision. The employees were paid both a base salary and incentive pay. The amount of incentive pay was determined based on the performance of employees' assigned portfolio of drugs in their assigned sales territories.Find the full opinion here.
Congress has recently introduced bills that, if passed, would place a nationwide ban on employers asking employees and applicants for login information.
The first bill, H.R. 5050 (Rep. Eliot Engel, D-N.Y.), called the Social Networking Online Protection Act ("SNOPA"), would prohibit employers from requiring or requesting that employees and job applicants provide a user name, password, or other means for accessing a personal account on any social networking website. The bill also prohibits colleges and universities from requesting the passwords of current or prospective students.
The second bill, (Sen. Richard Blumenthal, D-Conn.), called the Password Protection Act ("PPA"), was introduced in both the Senate and the House. The PPA is an amendment to the Computer Fraud and Abuse Act which would prohibit employers from requiring or requesting access to employees’ online personal accounts or password-protected computers, provided that they are not the employer’s computers. PPA would also prohibit employers from taking adverse actions against employees for refusing to disclose passwords. Under PPA, employees would also be eligible to receive compensatory damages and relief in court if their employers violated the act.
SNOPA and PPA remain in committees.
Recently, the EEOC issued an updated enforcement guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII.While Title VII does not prohibit an employer from requiring applicants or employees to provide information about arrests, convictions or incarceration, such information has been tied to unlawful discrimination in employment based on race, color, national origin, religion, or sex.Therefore, the Enforcement Guide incorporates federal decisions regarding the application of Title VII to employers’ consideration of a job applicant or employee’s criminal history, updates data, consolidates previous EEOC policy statements into a single document, and illustrates how Title VII applies to various scenarios that an employer might encounter when considering the arrest or conviction history of a current or prospective employee. Among other topics, the guidance discusses:
The new guide can be found here.
- How an employer’s use of an individual’s criminal history in making employment decisions could violate Title VII;
- Federal court decisions analyzing Title VII as applied to criminal record exclusions;
- The differences between the treatment of arrest records and conviction records;
- The applicability of disparate treatment and disparate impact analysis under Title VII;
- Compliance with other federal laws and/or regulations that restrict and/or prohibit the employment of individuals with certain criminal records; and
- Best practices for employers.
Smith v. Bray, No. 11-1935 (7th Cir., May 24, 2012). The Seventh Circuit held that an individual employee with a retaliatory motive may be individually liable under § 1981 for causing an employer to retaliate against an employee who complained about race harassment.However, the 7th Cir. held that the District Court did not err in granting motion for summary judgment by defendant-human resources official because the plaintiff failed to present sufficient evidence to establish that his complaints of discrimination motivated defendant to seek plaintiff's termination where plaintiff's only evidence of retaliation consisted of threats of termination made by others, as well as defendant's refusal to return plaintiff's telephone calls or to otherwise speak with her.Read the case here.
Recently, the Equal Employment Opportunity Commission (EEOC) issued a ruling that protects a transgendered employees.In Mia Macy v. Eric Holder (No. ATF-2011-0075), the EEOC held that intentional discrimination against an employee because that individual is transgender is, “by definition, discrimination based on sex” and therefore in violation of Title VII of the Civil Rights Act of 1964.
In December of 2010, Mia Macy applied for a vacant position with the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives. Ms. Macy, who was then still presenting as a man, was particularly qualified for the vacancy and was told that the position was hers assuming there were no problems with her background check.
About two months later, Ms. Macy informed the Bureau via email that she was in the process of transitioning from male to female. Just five days later, the Bureau informed Ms. Macy that the position was no longer available due to federal budget reductions. She later learned that this was not true and, instead, the Bureau had hired another non-transgender candidate to fill the vacancy.
Ms. Macy filed a complaint with the Bureau’s Equal Employment Opportunity ("EEO") office alleging that she had been discriminated based on sex, gender identity, and sex stereotyping. The EEO responded that claims for gender identity discrimination could not be adjudicated before the EEO; thus, only her claims for discrimination based on her female gender and for sex-stereotyping would be investigated. However, on appeal, the EEOC held that claims of discrimination based on transgender status are viable under Title VII’s prohibitions on sex discrimination, explaining: "When an employer discriminates against someone because the person is transgender, the employer has engaged in disparate treatment 'related to the sex of the victim.' See Schwenk, 204 F.3d at 1202." The EEOC further explained "This is true regardless of whether and employer discriminations against an employee because the individual has expressed his or her gender in a non-stereotypical fashion, because the employer is uncomfortable with the fact that the person has transitioned or is in the process of transitioning from one gender to another, or because the employer simply does not like that the person is identifying as a transgender person. In each of these circumstances, the employer is making a gender-based evaluation, thus violating the Supreme Court’s admonition that 'an employer may not take gender into account in making an employment decision.' Price Waterhouse, 490 U.S. at 244."Read the full opinion here.