Three Waco police detectives were accused of falsifying time sheets, two white detectives, and Allen Thompson, an African-American detective. The department reinstated all three, but imposed written restrictions only on Thompson that included preventing him from searching evidence without supervision, working undercover, or being a lead investigator. Thompson filed suit alleging race discrimination. The federal district court, however, dismissed the case holding that Thompson failed to show he suffered an “adverse employment action.”
The Fifth Circuit Court of Appeals reversed the trial court’s dismissal. The decision reminds us that an “adverse employment action” is more than a termination, demotion, or transfer that results in a loss in pay. Anti-discrimination laws can also protect workers from employment actions that result in making a job less prestigious or reduces the chance for advancement or promotion. That does not mean that every worker stripped of job duties has a legal claim. In fact, most will not. However, when an employer makes changes to a worker’s responsibilities that are a de facto demotion, then a claim can be pursued if discrimination was involved. If you believe Thompson’s claim (as the court must do before the evidence is presented to a jury), then his employer stripped him of the essential duties of a detective, essentially demoting him to an assistant to a detective. Such a change in job duties could be an “adverse employment action,” and Thompson is therefore permitted to continue with his claims.
“The only place success comes before work is in the dictionary.”
– Vince Lombardi
Edward Lane was the director of an underprivileged youth program operated by a community college in Alabama. Lane discovered that Suzanne Schmitz, an Alabama State Representative, was stealing taxpayer money by being on the program’s payroll, but not showing up for work. Lane shared his findings with the college’s president and attorney, but was warned of the “negative repercussions” if Schmitz was fired. After Lane unsuccessfully attempted to address the issue with a defiant Schmitz, Lane terminated her employment. Schmitz was later indicted and convicted on federal corruption charges, and Lane testified twice under subpoena in her criminal trials. A short time after Lane’s testimony, he was laid off in a reduction in force. Lane sued alleging his termination was retaliation for exercising his First Amendment rights.
The trial court dismissed Lane’s case, and the dismissal was upheld by the 11th Circuit Court of Appeals. Both courts relied on the precedent created in the controversial U.S. Supreme Court decision of Garcetti v. Ceballos. In Garcetti, an assistant district attorney named Richard Ceballos was subjected to retaliatory treatment after issuing a memorandum recommending the dismissal of a criminal case. Ceballos stated in both the memorandum and in meetings that he believed a sheriff’s deputy lied in an affidavit to attain a search warrant. The Supreme Court held that because Ceballos’ memo and communications to supervisors was part of his job duties, he was not speaking as a “citizen”, but rather as a “public employee”, and therefore his speech was not protected under the First Amendment.
Since Garcetti, employment attorneys, trial judges and even appellate courts have struggled in determining what public employee speech is protected under the First Amendment. The Lane case has now provided some clarity and direction.
In a unanimous decision, the U.S. Supreme Court reversed the dismissal of Lane’s case, finding that Lane’s sworn testimony in court, unlike Ceballos’ internal memorandum to supervisors, was protected speech. In a very good opinion for public sector employees, the Court reminds us of the significance of the First Amendment, which “was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” The fact that an employee, like Lane, learns of alleged unethical or unlawful activities while performing his or her job duties is not a bar to First Amendment protections, for “government employees are often in the best position to know what ails the agencies in which they work.” Since Lane’s testimony in a criminal trial was not part of his official job duties, he was speaking as a “citizen”, and his speech was therefore protected under the First Amendment.
Many times, good lawyers can get around bad law. Rather than arguing that Lane was retaliated against for internally reporting unlawful activities to supervisors, his attorney argued he was retaliated against for testifying truthfully under subpoena in a criminal trial. This was the right argument to allow the Supreme Court to soften the negative impact Garcetti has had on First Amendment Retaliation cases for several years.
“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.”
– Supreme Court Justice William O. Douglas
This month, President Obama signed an Executive Order barring federal contractors from discriminating or retaliating against workers who discuss their salaries. The impetus behind this executive order was to specifically target pay discrimination and the “gender gap” in compensation. While this presidential order only affects government contractors, it is a good reminder to both workers and employers about whether employee compensation can and should be kept secret.
Some employers continue to have written policies prohibiting employees from discussing salaries with one other. From an employer’s perspective, such discussions could lead to workplace distractions, as well as potential conflicts amongst workers, or between labor and management. Despite possible good intentions, however, such policies and practices are unlawful.
Section 7 of the National Labor Relations Act (NLRA) gives all employees the right to “engage in concerted activities”, which includes the right to discuss the terms and conditions of employment with other workers. This law applies to both union and non-union employees.
Furthermore, pay secrecy conceals workplace discrimination. While most employers make pay decisions based on legitimate criteria such as skills, job performance and seniority, discrimination in the workplace is a reality, and pay discrimination is one form of that unlawful conduct. If employees are not allowed to inquire or discuss the salaries of others, discrimination cannot be uncovered, and it will persist. In the end, this benefits neither the worker, nor the employer.
“Ignorance is an enemy, even to its owner. Knowledge is a friend, even to its hater. Ignorance hates knowledge because it is too pure. Knowledge fears ignorance because it is too sure.”
— Sri Chinmoy
As an employment attorney representing workers, I often focus on the actions, or inactions, of management or human resources officials after an employee complains of discrimination or sexual harassment. Oftentimes a plaintiff’s case is enhanced by the company’s failure to promptly investigate a claim, and take remedial actions, like discipline, to prevent the alleged misconduct from occurring in the future. How much, however, does an employer need to do? The Fifth Circuit recently gave us a hint of what it considers “prompt remedial action” by an employer.
Nadiya Williams-Boldware worked as an Assistant District Attorney (ADA) in Denton County, Texas. She is African-American. One day at work, a white ADA was discussing a case he was preparing for trial. The case was against a black criminal defendant. The white ADA told Ms. Williams-Boldware that the alleged conduct of this criminal defendant “made him understand why people hung people from trees,” and also made him “want to go home and put on his white pointy hat.”
As expected, Ms. Williams-Boldware was shocked and offended. She complained to management, who seemingly took her complaint seriously, acted promptly, and took some action against the white ADA. The remedial action consisted of a verbal reprimand and mandatory attendance in diversity training. A few months later, Ms. Williams-Boldware overheard the same co-worker state he needed a “boombox” to play a tape at trial, and he then commented, “I better watch what I say or else I’ll have to take another one of those classes.” The Plaintiff reported these comments as well, but the employer took no additional disciplinary action against the white ADA. Subsequent to this second complaint, another white ADA came into Ms. Williams-Boldware’s office and called her a “troublemaker”. Ms. Williams-Boldware later sued Denton County, and a jury found in her favor on a claim of racial harassment.
On appeal Denton County argued, among other things, that it should not be held liable because it took prompt remedial action to end the harassment. The Fifth Circuit agreed, dismissing the race claim. The court pointed to the employer’s prompt response to the complaint, as well as the remedial action taken by Denton County to allegedly end the harassment.
This decision is problematic for workers for a few reasons. First, the court failed to give deference to the collective wisdom of the jury who heard the evidence and judged the credibility of the witnesses. The jury obviously did not believe that the racial harassment against Ms. Williams-Boldware stopped after her initial complaint.
Second, one must question the court’s conclusion that Denton County’s response was appropriate under the circumstances, and reasonably calculated to end the harassment. An assistant district attorney made a reference to the past lynching of African-Americans as being acceptable, and further inferred he was a member of a race hate group — the Ku Klux Klan. As a former ADA, I am appalled that a prosecutor’s office would continue to employ a prosecutor who made two racially charged statements while preparing to prosecute a black criminal defendant. Then of all people, he made these comments to a black co-worker. After given a slap on the wrist and a second chance, the ADA then made additional comments that could clearly be interpreted as race-based or taunting the same black co-worker he previously offended. The employer then chose not impose any additional discipline. Whether the use of the term “boombox” was racial, was a fact issue for the jury to decide in context with all the other evidence heard. The fact that he immediately followed this comment with a reference to diversity training certainly could lead one to conclude that he intended or was aware the term could be racially tinged in the presence of Ms. Williams-Boldware.
What’s the lesson taken from this case? In determining if an employer took prompt remedial action in response to a discrimination or sexual harassment complaint, it seems like the courts may be more satisfied that the employer took a remedial measure than an appropriate remedial measure.
“Prejudice is a burden that confuses the past, threatens the future and renders the present inaccessible.”
Recently, the Texas Supreme Court decided a case originating from El Paso, reminding us that whistleblowers in Texas still face difficult challenges in receiving protections from retaliation.
In Canutillo I.S.D. v. Farran, the Plaintiff complained about employee theft and falsification of time cards, overpayment to a contractor, and the unlawful disposal of waste by the same contractor. These complaints were lodged to the district’s superintendent, assistant superintendent, internal auditor and school board. One school board member allegedly warned Farran that his job would be in jeopardy if the complaints against the contractor continued. A few short months after making these complaints, Farran was suspended, and his employment was later terminated.
Farran filed a whistleblower’s lawsuit. At issue was whether he reported the alleged violations to “an appropriate law enforcement agency,” which is required under the whistleblower statute. Farran did not complain to any traditional law enforcement agencies (e.g. police, FBI, etc.) before his suspension, but argued that he had a good faith belief that district officials could regulate or enforce the laws that were allegedly violated. Among other things, he asserted that the duties of the internal auditor included investigating employee fraud. The Texas Supreme Court disagreed and dismissed the case, holding that internal complaints to persons who are only responsible for internal compliance of laws were not sufficient.
While the pro-employer Texas Supreme Court’s decision was not surprising, it was nonetheless disheartening. Employees are trained to use the human resources department or their chain of command when voicing complaints. Following this protocol, however, will not protect employees against retaliation. Sadly, a little more than two months after deciding the Farran case, the Texas Supreme Court dismissed another whistleblower claim from another school district employee in El Paso for her failure to report hazardous working conditions to “an appropriate law enforcement agency.”
Last year Texas State Sen. Jose Rodriguez introduced legislation that would amend the state whistleblower law to include protections for school district employees who report illegal conduct to supervisors or human resources officials. The legislation passed in the senate, but has yet to pass the house. Until the Texas legislature amends this law, or courts begin to broadly interpret its language to serve its intended purpose – protecting whistleblowers, the Texas Whistleblower’s statute will continue to be a law with no teeth.
“Some things you must always be unable to bear. Some things you must never stop refusing to bear. Injustice and outrage and dishonor and shame. No matter how young you are or how old you have got. Not for kudos and not for cash: your picture in the paper nor money in the back either. Just refuse to bear them.”
– William Faulkner, Intruder in the Dust
Tonia Royal’s employment was short – only four days. But it was four days of hell that no employee should endure.
Royal worked in a small office as a leasing manager for an apartment complex. During her short employment, she was constantly visited by two male maintenance workers who would hover over her, and sniff her in a sexually suggestive manner. One of the maintenance men even allegedly sat on a credenza two feet behind her with a visible erection for three to five minutes.
Royal complained to her supervisor who suggested that she “let it slide”. The supervisor further told Royal, “you know how men are when they get out of prison.” During a meeting the following day, one of the men defended his actions by stating that he “needed to get a release”. Later that day, Royal was fired for unspecified reasons.
Royal filed suit alleging sexual harassment and retaliation. A federal magistrate found that the sexual harassment alleged was neither severe or pervasive enough, and should be dismissed. Since Royal did not have an actionable sexual harassment claim, she could not legally bring a claim of retaliation for reporting the alleged sexual harassment.
On appeal, the Fifth Circuit reversed the trial court’s dismissal of both claims, and found there was a fact issue for a jury on whether sexual harassment occurred. While sniffing is generally considered a non-sexual act, the court looked at a totality of the circumstances – the alleged harassers’ actions, their comments, as well as the fact that Royal was working by herself in a small, confined environment with two men constantly hovering over her. Such circumstances, the court opined, could lead a jury to find that Royal was subjected to pervasive harassment based on her sex.
This is a good case for workers, as it reaffirms that sexual harassment can occur absent physical contact, and it also reminds us that “pervasive” sexual harassment can even occur in short time periods.
Unfortunately, this case is a stark reminder of the disconnect that still remains between some judges, and what Americans have to face in the workplace. I am at a loss on how a jurist can conclude that a male sitting two feet behind a female worker while showing his arousal is not “severe” sexual harassment. Amazing.
The fight to protect employees from workplace harassment and discrimination continues . . .
“Sexual harassment is complex, subtle and highly subjective.” Kathy Lee Gifford