Drew Capuder’s Employment Law Blog

I will be speaking (and presenting on article) on recent developments in retaliation under federal and West Virginia employment law on either October 29 or 30, 2010 at the annual conference of the West Virginia Employment Lawyers Association. The conference will be at Oglebay Resort and Conference Center in Wheeling, West Virginia. The final schedule is not out yet, so I don’t know whether my speech with be on October 29 or 20.

Retaliation law in recent years has been one of those developing areas, and much more often than not the movement in the case law has been in the direction of expanding protections for employees against retaliation. The US Supreme Court especially has focused on retaliation law, and has “plugged gaps” in the law for federal employees to include protection for retaliation claims, has lowered the threshold for what is actionable retaliation, and has broadened the definition of “opposition” which entitles employees to protection.

One of the dangers for employers from retaliation claims is that, after an employee complains about alleged discrimination, the employer may be guilty of retaliation even if a jury decides there was no discrimination to support the employee’s original complaint. An employee may succeed in a retaliation claim as long as his complaint was made in good faith, even if the employee was wrong about the complaint of discrimination.

In the prior 2 years at the annual conference for WVELA, I spoke and wrote articles on awards of attorneys’ fees under employment discrimination laws, and on age discrimination.

The West Virginia Supreme Court recently issued an opinion dealing with one of those stereotypically awkward situations, where an employee allegedly stumbles into a room where the boss is having sex with a co-worker. The decision was  Roth v. DeFeliceCare, Inc., – W. Va. –, – S.E.2d –, 2010 WL 2346248 (June 8, 2010) (per curiam). It was a 3-2 decision, in which the 3-vote majority consisted of Justices Robin Davis, Margaret Workman, and  Thomas McHugh. Justices Menis Ketchum and Brent Benjamin dissented, and Justice Ketchum wrote a dissenting opinion.

The Facts–Sex at Work

These are the facts according to the complaint in the lawsuit: Tricia Roth was a respiratory therapist working at DeFeliceCare, Inc. in Ohio County, West Virginia, and she was about to go on vacation. She was directed by Leslie DeFelice (the male boss/owner) to come to work sometime during the weekend preceding her vacation in June 2006. She was not told a specific time to come to work during that weekend. When she came to work as ordered, she “observed Defendant [Leslie] DeFelice and/or Michelle Kelly partially clothed and in a compromising position”. Mr. DeFelice instructed Ms. Roth to go into a conference room and wait–meanwhile Mr. DeFelice and the other employee got all their clothes back on. Mr. DeFelice then talked to Ms. Roth and told her to forget about what she had just seen, and threatened Ms. Ross with the loss of her respiratory therapy license and the loss of her employment.

Ms. Roth then went on vacation. When she got back from vacation and returned to work, she had a meeting with Mr. DeFelice that didn’t go well. Ms. Roth told Mr. DeFelice that she hadn’t told anyone about his sexual encounter at work. Mr. DeFelice proceeded to fire Ms. Roth because “he did not like how she was dressed” and “he did not like the style[/]color of her hair”.

Ms. Roth Files Suit–Case Dismissed

Ms. Roth then filed suit on legal theories centering around sex discrimination and sexual harassment, and–bada bing!–the case promptly got dismissed.

Ms. Roth’s complaint (the document which starts the lawsuit and describes the plaintiff’s allegations) focused on the sexual incident I have described above, but also made allegations about other sexual harassment–I will discuss those details below.

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I previously wrote about the Supreme Court’s retaliation decision in Burlington Northern & Sante Fe Railway Co. v. White, 548 U.S. 53 (2006) ("Burlington Northern v. White"), in which the US Supreme Court substantially broadened the ability of employees to file retaliation claims under Title VII of the Civil Rights Act of 1964. It was a unanimous (9-0) decision.

I wanted to set out some additional thoughts about Burlington Northern, because it addresses an issue that has troubled the courts in interpreting the federal anti-discrimination laws: When is an employer’s conduct serious enough in disadvantaging an employee so that the employee has a claim under the employment discrimination laws? The answer is easy when the employer’s decision affects the employee’s pocket book, like with termination, failure to hire, demotions, and the like. The answer has been much harder when the employer’s conduct didn’t directly affect the employee’s pocket book.

NBA referees struggle with a similar issue: where is there enough physical contact on the court to justify calling a foul on a player. So let’s explore some parallels between these employment discrimination issues and the NBA’s "no blood no foul" rule.

The NBA’s "No Blood No Foul" Rule

If you watch National Basketball Association games, you might be struck by how much physical contact there is on the court and how rarely the referees call personal fouls over that physical contact. Fans of the NBA have only a partially kidding way to refer to the "standard" by which the referees decide how much contact will result in a personal foul being called. It’s the "no blood no foul" rule. In other words, the referees will allow a lot of physical contact, and will only call a foul when someone gets bloodied as a result of the contact.

Let’s assume, with our tongues in our cheeks, that there is such a rule (no blood no foul) that NBA referees apply, regardless of what is written in the Official Rules. The idea behind the "no blood no foul" rule is this: there is so much fast-paced hurley-burly contact on the basketball court, much of which makes it more exciting for the fans, that calling a foul for any physical contact (or a lower defined level of physical contact) would slow down the game for fans and make the game less enjoyable, unreasonably impede the skill of the players, and makes it impossibly hard for officials to identify "contact". So the appearance of blood is a more "objective" indication that the contact really mattered and really constituted an unfair interference with the other player.

The Supreme Court Struggles With "When is There a Foul"?

Courts for years have struggled with the employment discrimination equivalent of the "no blood no foul" rule. For the courts, assuming unlawful discrimination occurred: when is the consequence of the discrimination serious enough and objectively discernible so that courts will recognize a claim and intervene by activating the court’s process and potentially awarding damages.

Except for situations involving hostile work environment, the courts have translated the NBA’s blood requirement into a tangible economic consequence. Thus, much in the spirit of the NBA, the courts have said economic harm must be demonstrable as a result of discrimination, or else the courts won’t entertain the claim no economic consequence, no legal violation, case dismissed.

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1/26/09: In Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, 129 S. Ct. 846 (2009), the US Supreme Court unanimously ruled that an employee engaged in protected activity under Title VII‘s retaliation provision by answering an employer’s questions in connection with a sexual harassment investigation started by company rumors about a male supervisor. Justice Souter wrote the majority opinion, joined by Roberts, Stevens, Scalia, Kennedy, Ginsburg, and Breyer. Justice Alito wrote an opinion, concurring in the judgment, joined by Justice Thomas.

Ms. Crawford Responds to an Investigation into Sexual Harassment

Here is what happened: Rumors started circulating about sexually inappropriate behavior by a male supervisor, Gene Hughes, at "Metropolitan Government of Nashville and Davidson County" ("Metro"). A human resources employee started investigating, and asked Vicky Crawford whether she had seen any inappropriate behavior by Mr. Hughes. Crawford responded yes, and described several instances of sexually inappropriate behavior. For example, Ms. Crawford had asked Mr. Hughes "what’s up", and he responded by grabbing his crotch and saying "you know what’s up". On another occasion, Mr. Hughes grabbed Ms. Crawford’s head and pulled it toward his crotch. The human resources employee talked to two other employees who similarly reported sexually harassing behavior from Mr. Hughes.

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5-27-08: The US Supreme Court in Gomez-Perez v. Potter, 128 S. Ct. 1931 (2008) ruled that the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq., prohibited retaliation against federal employees who had complained about age discrimination, even though the federal employee section of the ADEA did not expressly prohibit retaliation. This was a 6-3 decision. The majority opinion was written by Justice Alito, in which Justices Stevens, Kennedy, Souter, Ginsburg, and Breyer joined. Justices Roberts, Scalia, and Thomas dissented, with dissenting opinions being written by Justices Roberts and Thomas.

The Gap In the Federal Employee Section of the ADEA

This was the problem under the ADEA: The ADEA‘s main section, in prohibiting discrimination against employees 40 and older, only deals with private industry employees and state government employees. I will call this section of the ADEA, the "private and state employee sections".

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June 22, 2006: In Burlington Northern & Sante Fe Railway Co. v. White, 548 U.S. 53 (2006) ("Burlington Northern v. White"), the US Supreme Court substantially broadened the ability of employees to file retaliation claims under Title VII of the Civil Rights Act of 1964. It was a unanimous (9-0) decision.

The Supreme Court broadened retaliation claims in 2 ways:

First: Retaliatory conduct is not limited to employer’s action at the workplace, and it is not limited to action taken while the plaintiff is still working for the employer.

Second: Action by the employer may violate the anti-retaliation provision even if it does not cause a tangible loss, such as pay, for the plaintiff. The conduct may violate the law if it is "materially adverse" (as opposed to "trivial") to the employee, and might dissuade a "reasonable worker" from "making or supporting a charge of discrimination". So, for example, transfers to different positions, even though they involve no loss in pay or benefits or promotional opportunities, might constitute unlawful action because, if the transfer is to what a reasonable worker would view as a less attractive job, that might dissuade a reasonable worker from complaining of discrimination.

Summary prepared by Drew M. Capuder (contact information); Voice: 304-333-5261