Employment Law Observer

Florida’s Fourth District Court of Appeal recently decided two questions of first impression under Florida law: (1) whether a one-event sexual advance at a private, non-work sponsored party may support sexual harassment and retaliation claims, and (2) whether rejecting a supervisor’s sexual advance is protected “opposition.” The court answered both questions “yes.”

It is not uncommon for companies to contract their daily business operations to third-party companies. In Motta et al v. Global Contact Services, Inc., the court addressed whether such relationships relieve the outsourcing company of any duties to address discrimination or harassment in the workplace.

The Fourth Circuit Court of Appeals recently made two noteworthy rulings in a single case concerning sexual harassment and retaliation under Title VII. First, as it relates to sexual harassment, the Court found that two racial epithets – even if viewed as an isolated incident – may be sufficiently severe to support the existence of a hostile work environment. Second, the Court held that an employee possesses a reasonable belief of the existence of a hostile work environment – a prerequisite for a retaliation claim – if an isolated incident of harassment is physically threatening or humiliating, such as the two racial epithets at issue in this case.

In Lewis v. City of Benicia, the First Appellate District affirmed once again that in California, same-sex harassment is actionable.

The employee was hired as the Area Manager for a national company and began experiencing performance problems almost immediately. She was fired less than a year after beginning her employment and subsequently filed a lawsuit alleging that she was subject to sexual harassment and was terminated in retaliation after reporting the harassment.  

A broadcast and digital journalism student began working at a Chinese-language news station as an unpaid intern. As an intern, she reported directly to the bureau chief, assisted the bureau’s reporters with shooting news footage, drafted scripts, edited videos, and appeared on camera to present certain stories. The intern sought a full-time position and was told that she may be able to obtain a permanent position later if she could obtain a work visa.

In Peng v. First Republic Bank, the California Court of Appeal for the First Appellate District rejected an employee’s contention that a company’s standard arbitration agreement was unconscionable.

In Cho v. Chang, the California Court of Appeal, Second Appellate District held that an employee’s statements to coworkers about alleged discrimination were not protected activities triggering special protection under California’s anti-SLAPP statute.

A prominent female lobbyist employed her former personal trainer, a Serbian immigrant, at her lobbying firm and agreed to sponsor his H-1B visa so that he could stay in the United States. Over the course of his three-year employment with the firm, the employee claimed that he was consistently harassed with sexual propositions and innuendo by his female supervisor.

An employee sued her employer claiming that she was: (1) discriminated against based upon her disability, (2) retaliated against, and (3) subjected to a hostile work environment when the employer failed to provide her with a disabled-access parking spot. The employee suffered from fibromyalgia and other health problems, which ultimately led to her taking considerable time off of work. In at least one year, she was absent for 59 percent of the time. In response to her claim, the employer indicated that the employee’s attendance was entirely unpredictable and that she rarely gave advance notice of her absences. The U.S. Court of Appeals for the First Circuit determined that the employee’s claim failed from the inception because she was unable to establish that she was a qualified disabled individual, or, more specifically, that she was able to perform the essential functions of her job. The provision of a disabled parking space was not determinative, because it was questionable whether the space would have enabled her to perform the essential functions of her job. Because being present at her workplace was an essential function, and the employee’s history of absences demonstrated that she was incapable of regularly being at work, she could not overcome this initial hurdle. The court similarly determined that the employee was unable to establish a hostile work environment or retaliation based upon the same facts. Disability discrimination claims are on the rise. Employers must ensure that their policies and practices comply with the ADA and/or corresponding state anti-discrimination laws.

In a matter of first impression, the Fifth Circuit Court of Appeals reversed summary judgment in favor of the employer and permitted the employee to proceed with his harassment claims under the Age Discrimination in Employment Act. 

Four African-American nurses worked at a jail facility and asserted that they experienced racial discrimination that caused them to resign. The nurses alleged that: (1) there were excerpts from the book, The One Minute Manager Meets the Monkey, with notes in the margins, found in a former administrator’s office; (2) comments about “monkeys” were made over the jail intercom; (3) a jail employee wore a t-shirt depicting a confederate flag; (4) a jail doctor referred to an inmate named Cole as “black as coal” or “black ass coal”; and (5) their shifts were rotated on a monthly basis. Fed up with the alleged discriminatory treatment, the nurses quit and sued the jail, claiming that they were subject to a hostile work environment. The U.S. Court of Appeals for the Seventh Circuit held that the alleged conduct did not create actionable discrimination. In so doing, the court explained that to establish a “hostile work environment,” the nurses needed to show that their work environment was both objectively and subjectively offensive. The court determined that excerpts from the book found in the administrator’s office were not something that a reasonable person would find offensive, as the book was plainly directed at management concerns and the metaphor was unlikely to cause confusion. Further, the court found no evidence that the alleged references to monkeys over the intercom were directed at nurses or a subset of them. The court determined that the observance of an employee wearing a shirt that contained a confederate flag as well as the doctor’s “black as coal” and “black ass coal” remarks were isolated incidents that were insufficiently severe to support a hostile work environment claim. The court further found that the jail’s policy of rotating nurse shifts constituted a legitimate response to the tension between employees in different shifts. While this case demonstrates that not all conduct an employee finds offensive will support a hostile work environment claim, employers should enforce comprehensive policies that prohibit all forms of discrimination and harassment to ensure that their employees are treated respectfully.