Breast Pumping, Dirty Toilets and Politics

Texas, which continues to lag behind most other states in workers’ rights, enacted a new law effective September 1, 2015, which provides some working moms with protections in the workplace to pump their breast milk.    Texas H.B. 786 requires all public employers (e.g., state agencies, cities, counties, and school districts) to provide a place, other than a multiple user bathroom, that is shielded from view and free from intrusion from other employees and the public, where the employee can express breast milk.   The new law, however, does not apply to a majority of working moms who are employed in the private sector.

It is interesting to note that the original draft of the bill excluded the use of any bathroom as a designated breast pumping place, but an amendment brought by Van Taylor (R-Plano), added the language, “other than a multiple user bathroom.”   Presumably, Van Taylor, who previously made the list of Texas’ Worst Legislators by Texas Monthly Magazine, believes that moms should feel comfortable pumping breast milk sitting on a toilet seat in an unsanitary single user restroom, while co-workers are impatiently waiting outside to use the same restroom.

This new law also prohibits discrimination or retaliation against employees who assert their rights under the statute, but Taylor’s amendment added language that prevents workers from bringing lawsuits if such discrimination or retaliation does occur.

Texas’ new breast pumping law is a small victory, and a reminder of the barriers that still exists in the workplace for working moms.

“As soon as you are ready to eat your lunch in the bathroom, I’ll breastfeed there.”

–        Author unknown

5th Circuit Decision: Pro-Employer or Anti-Religion?

I don’t think anyone would fault the way Kelsey Nobach handled the unusual request she received at work on September 19, 2009. Nobach, a nursing home employee, was advised by a non-supervisory CNA (certified nursing assistant), that a resident was asking that someone read the Rosary to her. Nobach, who is a Jehovah’s Witness, stated that she could not read the Rosary due to her religion, but she did not identify her religion. The resident complained, and Nobach’s employer terminated her employment without questioning Nobach as to her reasons.   During the termination meeting, a supervisor advised Nobach that she was being terminated for refusing to read the rosary to a patient.   Nobach responded, “Well, I can’t pray the Rosary.  It’s against my religion.”    To which the supervisor replied, “I don’t care if it is against your religion or not.   If you don’t do it, it’s insubordination.”

Nobach filed suit alleging religious discrimination, and a Mississippi jury found in her favor.   On appeal, the employer argued that it could not have discriminated based on religion because Nobach never informed them about her religion or religious beliefs prior to her termination.   The Fifth Circuit Court of Appeals agreed and reversed the trial court’s judgment.   Norbach v. Woodlands Village Nursing Center, Inc.

There are certain activities that are inherently religious.    Asking an employee to pray the Bible, the Koran, or in this case a Rosary, clearly falls in that category.   A worker should not face discipline or job loss for refusing to perform an inherently religious act that is not part of his or her job duties.    Equally, no employer should be able to skirt religious anti-discrimination laws by asserting that they were not aware of a worker’s specific religion.

The U.S. Supreme Court recently rejected this “ignorance of religion” defense in EEOC v. Abercrombie & Fitch Stores, Inc., in which the employer denied having actual knowledge that an applicant, who wore a hijab, or headscarf, was Muslim.   In that opinion, the court made it clear that a plaintiff did not have to prove that an employer had actual knowledge of the plaintiff’s religion or beliefs to be covered under Title VII’s religious accommodation protections.    Does this rationale extend to employers who lacked actual knowledge of a worker’s religion, but discipline or terminate the worker for refusing to perform an inherently religious act?    The Fifth Circuit has said no.   This is a bothersome opinion for those who are advocates for workers’ rights, as well as advocates for religious freedoms.  We will have to wait and see if the U.S. Supreme Court will be willing to weigh in on this decision.

“Religion is like a pair of shoes…..Find one that fits for you, but don’t make me wear your shoes.”

– George Carlin

Why Lies Matter in Employment Cases

The El Paso Times has reported that the CEO of an El Paso public hospital was publicly challenged on apparent inconsistencies he made regarding a 2014 layoff of fifty-six employees – the same year the hospital paid bonuses to the CEO and a few other select personnel.

At the time of the layoff, the hospital sent letters to the employees informing them of their separation, and that the decision was budgetary, and unrelated to their performance.     It is unclear from the article how the hospital selected these employees for layoff, or if the hospital had any written policies governing how reductions in forces (RIFs) would be implemented, but one thing was clear: it had something to do with the data the company’s employee time tracking database showed.

Approximately one year later, the hospital is now projecting fiscal growth.  In response to the optimistic news, the same CEO was asked by El Paso County Commissioner’s Court if some of the laid off employees would be rehired.   Surprisingly, the CEO responded that “a good third of it (laid off employees) were on disciplinary measures that you don’t want back.”   Aside from receiving negative publicity for his comments, the CEO’s statement reflects an apparent change in the reasons for some of these layoffs, which could have legal ramifications.

Employment lawyers know that the easiest way for an employer to get rid of unwanted personnel is through a layoff or RIF.    Unlike a termination based on poor performance or discipline, a layoff does not require documentation of past performance or disciplinary problems, or that the employer followed its progressive disciplinary procedures.      Rather, an employer needs only to assert a desire to reduce the workforce due to financial reasons.

While there may be many valid reasons to implement a RIF, certain employees can become easy targets for layoffs, particularly older workers, injured or disabled workers, or employees who have made prior discrimination complaints.   While discriminatory motives are not as apparent in layoff cases, employers need to know that the misuse of RIFs to terminate workers for discriminatory reasons can be exposed.

Judges and juries alike know that employers rarely admit discrimination.   So in order to prove a discrimination case, the law allows workers to put on evidence that the employer’s reason for the termination was false, or a “pretext.”    In other words, if a worker is able to show that an employer lied about the reason for his or her termination, a jury is allowed (but not required) to come to the conclusion that the real reason for the termination was discriminatory.

So a word of caution to employers, credibility counts.  Dishonesty in terminations not only damages your credibility with your workforce, it can end up as a valuable piece of evidence in a discrimination case against you.

“If you tell the truth you don’t have to remember anything.”

— Mark Twain

Supreme Court Extends Accommodations to Pregnant Workers

The U.S. Supreme Court recently decided the highly anticipated case of Peggy Young v. UPS, and addressed the unresolved question of whether pregnant employees are entitled to workplace accommodations due to their pregnancy.    The Supreme Court’s response . . . yes, but it depends.

I have represented pregnant employees who experienced the same type of discriminatory treatment as Peggy Young.     You have a female employee whose job requires some lifting.    During her employment she rarely lifts heavy objects, and when she does, she is usually assisted by a co-worker.   But once she announces her pregnancy and provides a doctor’s note with lifting restrictions, this worker is told she cannot perform the essential duties of her job (e.g. lifting).    When the employee responds that she was assisted by co-workers in the past, the human resources department will often respond that co-workers are not permitted to help, or assistance cannot be guaranteed.

At that point, the pregnant worker is looking at termination on the spot, or if qualified, twelve (12) weeks of unpaid FMLA leave which will expire before the baby’s delivery date.  Either way, a new mother will welcome her baby into the world with no income or insurance coverage, often looking to public assistance for help.

Peggy Young was employed as a part-time delivery driver with UPS.    During her employment she became pregnant and her physician limited her lifting to no more than 20 lbs.    Because a delivery driver’s job description required lifting up to 70 lbs., Young was placed on an unpaid leave and she lost her insurance benefits.    UPS policies, however, did allowed accommodations, but only to workers who suffered job-related injuries, had a disability, or had their DOT license suspended due to medical reasons.   Young sued under the Pregnancy Discrimination Act.    The trial court dismissed her claim, and the Fourth Circuit Court of Appeals upheld the dismissal.

In a 6-3 vote, the U.S. Supreme Court reinstated Young’s case, holding that fact issues existed for a jury to decide.  While the Court did not go as far to state that employers were legally required to grant accommodation requests for all pregnancy-related work restrictions, it rejected UPS’s argument that a “pregnancy-neutral” policy that provides accommodations for some situations, but not others, was automatically non-discriminatory.      In altering the legal analysis on how lower courts will view these types of cases in the future, the Supreme Court held that pregnant workers are entitled to a jury trial if there is:

“significant evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s “legitimate, non-discriminatory” reasons are not sufficiently strong to justify the burden, but rather – when  considered along with the burden imposed – give rise to an inference of intentional discrimination.”

In other words Mr. Employer, if you are going to accommodate lifting restrictions for workers with disabilities or workers who were hurt on the job, you don’t have a very compelling argument to deny pregnant workers the same accommodation.

A good decision for female employees who don’t have to fear about choosing between motherhood and their job.

“Whatever women do, they must do twice as well as men to be thought half as good.   Luckily, this is not difficult.”

–   Charlotte Whitton

“Gorilla” Presentation on Juneteenth Costs Employer

CorpCar is a limousine service in Houston, Texas, and 75% of its chauffeurs are African-American.   In the spring of 2009, several black employees requested time off to attend “Juneteenth” celebrations.   “Juneteenth” is a holiday officially recognized by the State of Texas commemorating the June 19, 1865 announcement in Galveston, Texas of the emancipation of black slaves.     Despite its awareness of the holiday, and that several employees requested time off, CorpCar scheduled mandatory safety meetings on June 18th thru June 20th.    For entertainment during these meetings, the company hired a white woman dressed in a black gorilla suit, who proceeded to engage in a litany of offensive and discriminatory behavior.    This included the performer referencing in a suggestive manner “big black lips,” “big black butts,” and bananas.   During the presentation, the company’s general manager told James Henry, an African-American chauffeur who had requested time off, “Here’s your Juneteenth.”    After Henry complained, he was told to “get over it.”   The company permitted the gorilla performance at three more safety meetings.

Henry and another employee successfully sued CorpCar, asserting hostile working environment and retaliation claims.   On appeal, the Fifth Circuit Court of Appeals upheld the jury verdict, as well as the award of compensatory and punitive damages.   While hostile working environment claims generally consist of several discriminatory events over an extended period of time, this decision reminds us that a single event, if severe enough, can constitute a hostile working environment.

The court writes a thoughtful opinion touching on the humiliation and intimidation African Americans have suffered throughout history with comparisons to apes, monkeys, gorillas, and the like.   In determining that Corpcar’s isolated conduct was indeed sufficiently severe to create a hostile working environment, the court noted that “a mandatory, dramatic performance mocking freedom from slavery for African-Americans in this country is exceeding offensive and egregious.   Considering the conduct in light of the “social context,”…the severity of the harassment is apparent.”

In the age of the internet and social media, it seems that we have become desensitized to the struggles of others, and vitriol has replaced compassion and civil discourse.   Not surprisingly, this intolerance has crept into the workplace.   While workers are rapidly losing their rights to jury trials, this case reminds us that the judicial system can ensure that employment laws provide the protections that workers need and deserve.

“We will have to repent in this generation not merely for the vitriolic words and actions of the bad people but for the appalling silence of the good people.”

–        Martin Luther King, Jr.

Employer’s Anti-SLAPP Defense Slapped Down by Court

In 2011, the Texas Legislature passed the Texas Citizen’s Participation Act (or the Texas “Anti-SLAPP” statute).     This law was designed to protect against SLAPP (Strategic Lawsuit Against Public Participation) lawsuits.   These are meritless lawsuits filed for the purpose of censoring or intimidating persons who exercise their First Amendment rights.   For example, John Q. Public writes a blog entry criticizing a public official or corporation of unethical or illegal behavior.   In response, the public official or corporation sues John Q. Public for defamation, creating untold legal expenses and headaches to ensure the public criticism ceases.

The Anti-SLAPP law allows a judge to dismiss such frivolous lawsuits if the legal claims are based on, related to, or in response to a party’s exercise of their free speech rights.    This is a valuable law that is meant to protect our constitutional rights.    Unfortunately, this does not mean that the Anti-SLAPP law will not be misused by some defendants, including employers in employment related lawsuits.  Such was the case in Tony Rivers v. Johnson Custodial Homes, Inc. et al.  

Tony Rivers was employed as a Certified Nursing Assistant at a nursing home.  Rivers, who is male, would often wear women’s clothes, wigs and makeup.   Rivers alleged he was harassed at work, and was subsequently terminated based on false allegations of patient abuse.   After his termination, Rivers unsuccessfully applied for other jobs.  Rivers asserted that his former employer was giving negative references and telling prospective employers about the allegedly false claims of patient abuse. Rivers filed suit against his former employer asserting several claims, including a claim for defamation.

Rivers’ former employer sought a dismissal of the defamation claim under the Anti-SLAPP law, asserting that it engaged in free speech by providing information in the reference checks that benefited the public welfare.    The federal district court judge, however, was not persuaded by this argument.   The court held that the disclosures to the prospective employers were made privately, and therefore was not public speech subject to protection under the Anti-SLAPP law.   Secondly, even if these private statements were subject to protection, the court found that the employer failed to prove the alleged statements were made as a “matter of public concern.”

Good ruling by the court.  Rivers certainly did not file his lawsuit with the intent of chilling his former employer’s First Amendment rights.   Hopefully we don’t begin to see a trend by employers frivolously using this law, which was created to guard against frivolous claims.

“Restriction of free thought and free speech is the most dangerous of all subversions. It is the one un-American act that could most easily defeat us.”

–        William O. Douglas