Labor and Employment Update - Summer 2006

EMPLOYERS SHOULD CAREFULLY ANALYZE ANY ENGLISH ONLY POLICY

On January 11, 2006, the Tenth Circuit ruled that an employer policy prohibiting employees from speaking any language except English at work could violate Federal anti-discrimination statutes. Although other courts had previously rejected guidelines issued by the EEOC regarding English-only policies, the Court in Maldonado v. City of Altus, Oklahoma explained “[f]or our purposes, it is enough that the EEOC, based on its expertise and experience, has consistently concluded that an English-only policy, at least when no business need for the policy is shown, is likely in itself to ‘create an atmosphere of inferiority, isolation and intimidation’ that constitutes a ‘discriminatory work environment.’”

THE FACTS

The City of Altus implemented an English-only policy after an employee complained that bi-lingual employees were speaking Spanish and he could not understand what was being said on the City radio. The written policy provided in part:

All work related and business communications during the work day shall be conducted in the English language with the exception of those circumstances where it is necessary or prudent to communicate with a citizen … in his or her native language due to the person or entity’s limited language skills. . . . This policy does not apply to strictly private communications between co-workers while they are on approved lunch hours or breaks or before or after work hours . . . if City property is not being used for the communication. Further this policy does not apply to strictly private communication between an employee and a family member . . . .

According to the Spanish speaking employees, in addition to the written policy, the City enforced a much broader rule prohibiting use of Spanish during lunch hours, breaks, and private conversations. The employees maintained that the City’s policy created a hostile work environment.

THE COURT’S ANALYSIS

The Court considered whether the Spanish-speaking employees could state claims for disparate impact and/or disparate treatment discrimination claims based on the implementation of the English-only policy. Answering these questions in the affirmative, the Court stated “the very fact that the City would forbid Hispanics from using their preferred language could reasonably be construed as an expression of hostility to Hispanics. At least that could be a reasonable inference if there was no apparent legitimate purpose for the restrictions.” The Court explained “[t]he less the apparent justification for mandating English, the more reasonable it is to infer hostility toward employees whose ethnic group or nationality favors another language.” Evaluating the City’s policy, the Court focused on the fact that the City had a very little evidence of a legitimate business justification for the policy. There were no written records of any communication problems, morale problems or safety problems resulting from the use of languages other than English. Moreover, there was little undocumented evidence any problems related to employees using Spanish.

WHAT EMPLOYERS CAN DO

Any employer who wishes to implement an English-only policy can learn from the mistakes made by the City of Altus. Prior to implementation, a thorough investigation of the benefits of such a policy should be made. After the identification of any business justifications for the policy, the employer should carefully and thoroughly document any communication problems, morale problems and/or safety problems created by employees speaking a language other than English during work time. A policy should be drafted which is narrowly tailored to address these documented problems and focuses exclusively on business related (as opposed to personal) communications. As should be done when any new policy is implemented, the policy should be explained to the employees and enforcement of the policy should be explained to the supervisors in detail. Finally, the employer should monitor the impact of any such policy to ensure that it effectively addresses the concerns that led to its implementation.

Employers with existing English-only policies should review them to confirm that they are narrowly tailored to address legitimate business concerns. A thorough review of the documentation related to these concerns should be performed. Based on this review, the policy should be modified if necessary.

FORCE OF PROTECTIVE ORDERS

In recent years, parties have increasingly sought to designate papers and information as confidential and sought Protective Orders with regard to judicial records and/or discovery materials. The extent to which parties can rely on Protective Orders depends on whether parties had a good cause to seek a Protective Order over each individual document covered by the confidentiality agreement.

Judicial records are any documents filed with the court and include non-discoverable pretrial motions, or any materials, documents, legal memoranda and other papers filed with the court that are relevant to any material issues involved in the underlying litigation. Once a document is filed, it automatically becomes a judicial record until such time as it is returned to the parties. If a judicial record is returned to the parties, it loses its status of judicial record.

From the public’s standpoint, the importance of a document being classified as a judicial record is that the public can access that document. The right to access is a first amendment right granted to the public and the press and it allows the public and press access to all judicial records. The right to access is not absolute. Courts grant Protective Orders over judicial records on a showing of good-cause. “Good-cause” is a standard applied by courts in granting protective orders. The “good-cause” standard recognizes a very strong presumption in favor of public access. To overcome this presumption, the party seeking a Protective Order must show that the interest in secrecy of the proceedings outweighs the presumption. This will require that the party (a) demonstrate a need for secrecy with respect to each document that is based on content of information at issue, the relationship of the parties, or the nature of the controversy; (b) aver specific allegations of harm substantiated by specific examples or articulate reasoning; and (c) prove a current need to deny access (not the need at the time of the agreement).

There has been some controversy as to whether settlement agreements are judicial records and, therefore, susceptible to the right of access. Settlement agreements, filed with, placed under seal, interpreted or enforced by a court, become judicial records. If the parties want to deny the public access to the settlement agreement once it becomes a judicial record, they have to move for a Protective Order and show “good-cause.”

A Settlement agreement is not a judicial record merely because a court grants an order of confidentiality over its terms and enforces the order of confidentiality. The courts have drawn a distinction between “enforcing the terms of a settlement order” and “enforcing an order of confidentiality granted over a settlement agreement.”

Materials exchanged in discovery are not judicial records and, therefore, neither the public nor the press has a right to access those documents. However, parties increasingly are entering into confidentiality agreements with respect to discovery materials. The purpose of such confidentiality agreements is to eliminate the use of discovery material by the opposing parties or third parties, for any other purpose other than the pending litigation. To maintain and enforce the secrecy of the discovery documents, parties prefer to convert the agreements into a Protective Order by obtaining a signature of a judge on the confidentiality agreements.

The standard used by courts in granting Protective Orders over discovery materials is the same as the standard used to grant protective orders over judicial records: the good-cause standard. Good-cause is established on a showing that disclosure will cause a clearly defined and serious injury to the party seeking protection. The injury must be shown with specificity. It is important to note that Protective Orders, whether granted over judicial records or discovery, do not grant protection in perpetuity. A Protective Order is subject to modification and can be challenged even by third parties.

Protective Orders can be modified if a party seeking modification comes forward with a reason to modify. Courts balance the interest of parties before modifying Protective Orders. Even though courts will consider the reliance of parties on the Protective Order, the primary factor considered by courts is whether good-cause exists at the time the modification is sought.

The fact that Protective Orders can be modified and that they cannot be relied on in perpetuity should cause parties to pause before seeking such orders. It is prudent to seek a Protective Order over judicial records or discovery material only if parties can make a genuine showing of “good-cause” with respect to each and every document that would be covered by the Protective Order.

The bottom line is that parties should understand that litigation will likely lead to the release of much information that the person/company believes is sensitive — even “confidential.”

SUPREME COURT EXPANDS REACH OF RETALIATION CLAIMS

Retaliation claims can be very troublesome to employers. A retaliation claim can arise after an employee opposes discrimination, files a complaint, or assists another employee who has filed a charge of discrimination – – even if the discrimination claim is ultimately found to be meritless. Retaliation claims are NOT limited to discrimination allegations, but can arise in other circumstances such as “whistleblowing.” Juries are more likely to find that an employer took action against an employee “because the employee sued them or complained about them” than that an employer was racist or sexist. A review of recent jury verdicts finds that retaliation claims are involved in many employment cases and often result in the highest verdicts.

For example, in a case involving retaliation for filing a race discrimination claim with the Equal Employment Opportunity Commission (EEOC), a jury awarded the plaintiff $2,529,000 (including $29,000 in lost wages, $500,000 for emotional distress and $2,000,000 for punitive damages). In another case, a female employee alleging discrimination retaliation for filing a complaint lost the discrimination case but prevailed on the retaliation case. She was awarded $1.15 million (including $650,000 for emotional distress).

In Burlington Northern and Santa Fe Railway Co. v. White, the United States Supreme Court expanded the reach of Title VII’s (the statute that prohibits sex discrimination) anti-retaliation provisions. Sheila White was the only female employee at Burlington’s “Maintenance of Way” department. Ms. White complained that her direct supervisor repeatedly told her that women should not be working in that department. After completing an investigation, Burlington suspended the supervisor for 10 days and ordered him to attend sexual-harassment training. When White was told about her supervisor’s suspension, she was also informed that she was being removed from forklift duty and asked to perform “standard track laborer tasks,” which everyone agreed were harder and dirtier. White was told she was being reassigned because “in fairness, a ‘more senior man’ should have the ‘less arduous and cleaner job’ of forklift operator.” White filed a charge with the EEOC claiming her reassignment was the discriminatory and in retaliation for her making the complaint about her supervisor. Several weeks later, White had a dispute with a different supervisor and was suspended without pay for insubordination. White filed a grievance through the union and after the grievance procedure, it was concluded that White had not been insubordinate. She was reinstated and awarded backpay for the 37 days she was suspended. The Court found it significant that White was suspended without pay over the Christmas holiday.

The Court had to decide whether White’s reassignment and her suspension amounted to unlawful retaliation. Prior to the Burlington decision, some courts, including the Third Circuit (which covers Pennsylvania, New Jersey and Delaware), had held that the test for retaliation was the same as the test for discrimination, i.e. the action must “result in an adverse effect on the ‘terms, conditions, or benefits of employment.” The Court in Burlington rejected this standard and chose to apply a more liberal standard. Instead, the Court held that the anti-retaliation provision is not limited to actions that relate to employment or occur at the workplace. Thus, the standard is whether the actions are “harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Under the Court’s new standard, an employer’s action that would not be enough to constitute discrimination could be sufficient enough to constitute retaliation. The reason for this, according to the Court, is that the anti-retaliation provision seeks to prevent employer interference with “unfettered access” to anti-discrimination laws.

The Court noted that “normally petty slights, minor annoyances and simple lack of good manners” will not be found retaliatory. However, what is a minor annoyance in one case may be significant enough to be considered retaliatory in another. It will often depend upon the particular circumstance. As the Court noted, “context matters.” For example, while a schedule change may be a minor annoyance to many employees, if the employee has school age children, it may deter a reasonable person in that position from invoking the protections of Title VII and would be considered retaliatory. In addition, a supervisor’s refusal to invite an employee to lunch is normally trivial, but if the lunch is a weekly training lunch that contributes significantly to the employee’s professional development, it may be unlawful. Thus, if the action is likely to deter a reasonable person from filing a complaint or assisting another employee with their complaint, Title VII’s anti-retaliation provision is implicated.

The Labor and Employment Group represents and counsels employers in all aspects of the employment relationship, including EEO litigation, union avoidance, negotiations, arbitrations, executive compensation, corporate transactions, and non-competition/non-solicitation agreements, as well as compliance with federal and state laws such as the Family and Medical Leave Act, the Americans with Disabilities Act, the Health Insurance Portability and Accountability Act, the Fair Labor Standards Act and the Occupational Safety and Health Act. This document is published for the purpose of informing clients and friends of Klehr Harrison about developments in the areas of labor, employment and benefits, and should not be construed as providing legal advice on any specific matter. For more information about this publication or Klehr Harrison, contact Charles A. Ercole, Chair of the Labor and Employment Group, at (215) 569-4282 or visit the firm’s Web site at www.klehr.com