Labor and Employment Update - Winter 2011

PLAINFIFF WHO ONLY COMPLAINS TO THE ALLEGED HARASSER ABOUT SEXUAL HARASSING CONDUCT MAY STILL BE ABLE TO HOLD THE EMPLOYER LIABLE FOR THE HARASSMENT

A company’s liability for the sexual harassment of its employee often hinges on whether : (1) the employer exercised reasonable care to prevent and correct promptly any discriminatory harassing behavior; and (2) the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.  

The Second Circuit recently held in Gorzynski v. JetBlue Airways Corp., that the plaintiff can comply with her obligations even if she does nothing more than complain to the alleged harasser about his conduct.  JetBlue had a formal written antiharassment policy in place that, among other things, provided that a victim of harassment immediately should bring the objectionable conduct to the attention of his or her supervisor, the human resources department, or any member of management.  The court found that JetBlue had met the first prong of the defense with this policy.  

The court next evaluated whether the plaintiff had unreasonably failed to take advantage of all of JetBlue’s preventative and corrective opportunities. JetBlue argued that the plaintiff acted unreasonably because her supervisor was the alleged harasser and the only person to whom she complained. However, the Court held that a plaintiff is not necessarily required to go from manager to manager or to exhaust all possible avenues until she finds someone who will address her complaints.  For example, the plaintiff may be able to offer evidence to show why it was reasonable for  her to have not utilized all avenues for complaining.  In Gorzynski, the plaintiff presented evidence that the others to whom she could have complained under the company policy were either intimidating, not receptive to harassment complaints, or not capable of adequately addressing such complaints.  With this evidence, the Second Circuit denied JetBlue’s motion for summary judgment.  

We believe other courts would agree with the Gorzynski Court’s reasoning. Companies should have written sexual harassment policies that: (a) are distributed or otherwise made available to each employee; (b) provide different avenues by which a harassment victim may complain about the offensive conduct; (c) specifically enumerate procedures for investigating the complaint that are followed uniformly; and (d) denounce all forms of harassment or discrimination. The policy should clearly state that if the harasser is their direct supervisor, employees must, or are strongly encouraged to, report the harassment to HR or another supervisor.  Finally, companies should ensure that potential recipients of a complaint are, in fact, accessible, receptive to, and capable of acting on the complaints.  Otherwise, the defense may not be available even when the alleged victim does no more than complain about the harassment to the alleged harasser.  

Lee D. Moylan
lmoylan@klehr.com

THE SUPREME COURT EXPANDS TITLE VII PROTECTION FOR THIRD-PARTY RETALIATION CLAIMS 

In a recent decision, the Supreme Court unanimously held that an employee who was terminated shortly after his fiancé, a co-employee, filed a charge of discrimination against their mutual employer had the right to pursue a legal claim of retaliation under Title VII of the Civil Rights Act of 1964 (“Title VII”).  The plaintiff in the Thompson v. North American Stainless case was Eric Thompson, who along with his fiancé, Miriam Regaldo, were employees of North American Stainless (“NAS”).  In February of 2003, Regaldo filed a charge of discrimination with the Equal Employment Opportunity Commission alleging that NAS had subjected her to sex discrimination.  Three weeks later, Thompson was terminated and subsequently filed his own charge of discrimination alleging retaliation.  Both of the lower courts dismissed Thompson’s claim based on the theory that Thompson had not himself engaged in any protected activity under the statute, and that Title VII did not allow for third-party retaliation claims.

Relying on past precedent and the wording of Title VII, the Supreme Court reversed the decision of the Sixth Circuit and held that Thompson did indeed have a recognizable claim.  Specifically, the Court cited its reasoning in Burlington Northern & Sante Fe Rail Company v. White, which held that Title VII’s anti-retaliation protections were designed to prohibit conduct which “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”  Based on that standard, the Court concluded that the notion that a reasonable worker would be dissuaded from engaging in protected activity if they knew their fiancé would be fired as a result was, “obvious.”  

The Thompson court then looked at the question of whether Thompson had standing to bring a claim of retaliation under Title VII as a person “claiming to be aggrieved” under the statute.  On this issue, the Court rejected its own dicta from a prior opinion and held that an aggrieved person was anyone with an interest that is arguably sought to be protected by Title VII, and that Thompson would be a plaintiff who would fall within the “zone of interests” protected by the statute.  The Court further reasoned that the intent of Title VII is to protect employees from unlawful employment actions, and if Thompson’s allegations were accepted as true, he was an intended target of an unlawful act to punish Regaldo, not an accidental victim.  

What is most pertinent to employers about this opinion is the question it raises as to what is a sufficiently close relationship between two employees to meet the standard set forth in Burlington  to permit a third-party retaliation claim.  According to the Court, the clear language of Title VII makes it unjustifiable to make a “categorical rule” against allowing third-party retaliation claims based solely on the idea that it would put employers at risk of a lawsuit any time a person was fired who has a connection to an employee who filed a discrimination claim.  However, the Court provides little guidance on what types of relationships create a basis to sue. The Court clearly dismisses the idea that a mild reprisal of a mere acquaintance would be sufficient but, at the same time, posits that “firing a close family member will almost always meet the Burlington standard.”  As such, the true scope of the Thompson opinion will not become clear until it is applied in the context of other fact-patterns faced by the lower courts.

In light of the potential implications of Thompson, employers need to not only be mindful of the treatment of employees who have filed claims of discrimination, but also of those employees with whom such complaining employee may have a close relationship.  Should employers be faced with a situation where they need to take an employment action against an individual who appears to have a close relationship to an

CAT’S PAW LIABILITY

In March 2011, the United States Supreme Court decided that employers may be liable under “cat’s paw” liability when an unbiased supervisor fires an employee based on the actions of a biased lower-level manager.  In his opinion for the Court, Justice Scalia noted that the term “cat’s paw” is based on one of Aesop’s fables, which was written as a poem by the French poet La Fontaine in 167  In the fable, a monkey induces a cat by flattery to pull roasting chestnuts from the fire.  After the cat has done so, burning its paws in the process, the monkey makes off with the chestnuts and leaves the cat with nothing.  Since the fable was applied to employment law cases in 1991, the final decision-maker is considered the cat and the biased supervisor is the monkey.  However, not all courts have been willing to apply the theory—which is one of the reasons the Supreme Court took up the case of  Staub v. Proctor Hospital in April 201  In addition, the Supreme Court had granted review of the issue in 2007, but the case was resolved before the Court could hear it. 

In the Staub case, the federal anti-discrimination law at issue is the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”).  The USERRA forbids employers from denying “employment, reemployment, retention in employment, promotion in employment, or any other benefit of employment” based on an employee’s service in the military—either in the reserves while continuing to work or on active-duty and then seeking to return to work.   

In the case considered by the Supreme Court, Vincent Staub worked for fourteen years as a radiology technician at Proctor Hospital.  Since 1984, he had been in the Army Reserves and had to leave work one weekend per month and two to three weeks a year for reserve training.  On one occasion, Staub was required to go on active duty to train Army troops bound for Iraq on how to set up a radiology unit in a combat zone field hospital.  

One of Staub’s supervisors was openly hostile to Staub’s military obligations, apparently because it complicated work schedules and because, she felt, it imposed on other employees’ job rights. The head of Staub’s department also was critical.  A co-worker of Staub’s complained to the head of Staub’s department and the hospital’s vice president for human relations that Staub had mistreated her and had been lax in his duties in the department.  The vice president of human relations was told by hospital officials to work out a plan to deal with Staub’s situation.  She did not do that; rather, she soon made up her mind to fire Staub. 

In April 2004, Staub and a colleague went to the hospital cafeteria, leaving a voice-mail message where they would be.  However, his colleagues could not find Staub, despite having been instructed a few months earlier not to leave the department without permission.  When Staub returned to the department, he was summoned to vice president for human relations’ office, and was told on the spot that he was fired for failing to keep his colleagues aware of his whereabouts.   

Staub sued for violations of USERRA, and a jury awarded him $57,000 in damages.  On appeal, the Seventh Circuit Court of Appeals in Chicago reversed because Staub’s supervisors did not exercise singular influence over the ultimate decision maker.  In other words, the court found that “cat’s paw” theory did not apply because the hospital’s vice president of human relations’ decision to fire Staub was not the product of her “blind reliance” on the other supervisors’ dislike of Staub’s military obligations.  Applied to the fable, the Seventh Circuit concluded that the cat didn’t need the monkey’s bias to motivate her to grab the chestnut.  The Supreme Court disagreed. 

As developed in Justice Scalia’s opinion, the “cat’s paw” theory of liability applies to an employer only if these steps play out in a sequence:  first, a supervisor of the worker takes a step (submitting a negative report) that is done for a biased reason; second, that supervisor intends to get the worker fired, demoted or otherwise penalized; and, third, the supervisor’s step is found to be the “proximate” cause of the ultimate decision — even if the executive or supervisor who actually carries out the firing or other penalty is someone else, and that person was not at all biased.   

In accepting the “cat’s paw” theory, the Supreme Court rejected the hospital’s argument that since the supervisor who made the final decision actually did her own investigation before acting, that should neutralize the effect of the other supervisors’ bias and get the hospital off the hook.  Instead, the court held that, if the biased supervisors’ intent fit into the three-step scenario laid out by Justice Scalia, an investigation by the final decision-maker would not remove liability.  However, the opinion did note that the opinion in Staub only covered situations where a biased intent was harbored by a supervisor.  Finally, although the Staub case involved violations of USERRA, the broad language of the statute strongly suggests that “cat’s paw” liability also applies to other federal employment discrimination statutes.