In an opinion issued this week, the Sixth Circuit Court of Appeals (which covers Ohio, Michigan, Kentucky and Tennessee) affirmed dismissal of a case alleging same-sex sexual harassment primarily based on the prompt and effective action taken by the employer in response to the plaintiff employee’s complaint.

Plaintiff (Hylko) and the alleged harasser (Hemphill) worked closely together at U.S. Steel. Hemphill trained Hylko and assigned his duties. Both reported to an area manager.

Hylko claimed that Hemphill harassed him as soon as they started working together, that Hemphill regularly asked Hylko about his sex life and that Hemphill grabbed his buttocks and private parts.

Hylko complained to management, who offered him a transfer to a different area of the plant, which he accepted. Management then met with Hemphill, who admitted some of the harassment. They then gave him a verbal warning, one week suspension and demotion to shift manager and made him take a leadership class. No harassment occurred again after that.

The standard for employer liability for hostile work environment harassment that does not result in a tangible adverse employment action depends typically on whether or not the harasser is the victim’s supervisor. An employer is vicariously liable for a hostile work environment created by a supervisor unless it can prove that (a) the employer exercised reasonable care to prevent and correct promptly any harassment; and (b) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. By contrast, an employer is liable for hostile work environment harassment by employees who are not supervisors only if the alleged victim can prove the employer was “negligent in failing to prevent harassment from taking place.” In assessing such negligence, the court will look to such factors as the nature and degree of authority wielded by the harasser and evidence the employer did not monitor the workplace, failed to respond to complaints, failed to provide a system for registering complaints or effectively discouraged complaints from being filed. In essence, the supervisory status of the alleged results in a shifting of the burden of proof with respect to whether the employer has taken necessary steps to prevent and respond to allegations of harassment.


Continue Reading When can an employer be found liable for ‘supervisor’ harassment?

In a decision issued on June 9, the Sixth Circuit Court of Appeals (which covers Ohio, Michigan, Kentucky and Tennessee) affirmed the dismissal of sexual harassment claims brought by the Equal Employment Opportunity Commission (EEOC) on behalf of three female AutoZone employees. In its decision, the Court reaffirmed some important principles.

The case involved a store manager who was transferred into an AutoZone store in Cordova, Tennessee. Shortly after arriving, he began to make lewd and obscene sexual comments and propositions to one female employee in particular and also made sexual comments to two other female employees as well. Under AutoZone’s system, the store manager did not have the authority to fire, promote, reassign and take tangible employment actions with respect to store employees (even though he could make some hires). Those responsibilities were reserved for the district manager (who visited the store at least once a week).
Continue Reading Sixth Circuit decision in EEOC v. AutoZone provides road map to sexual harassment defense

The Trump administration’s proposed fiscal year 2018 budget includes a merger of the Office of Federal Contract Compliance Programs (OFCCP) and the Equal Employment Opportunity Commission (EEOC). If the budget is approved, the OFCCP, which has jurisdiction over federal contractors, would merge into the EEOC, which has jurisdiction over private and public employers; forming a combined super equal employment opportunity enforcement agency.

Background of the two agencies

The OFCCP enforces Executive Order 11246, the Vietnam Era Veterans Readjustment Assistance Act (VEVRAA), and Section 503 of the Rehabilitation Act (Section 503), which together prohibit workplace discrimination, harassment and retaliation on the basis of sex, race, national origin, color, religion, sexual orientation, gender identity, disability and covered veteran status for covered federal contractors and subcontractors. Affirmative action is required on the basis of sex, race, national origin, disability, and covered veteran status in all employment decisions. The OFCCP takes a more proactive approach when enforcing nondiscrimination, requiring federal contractors to draft affirmative action plans that provide equal employment opportunities. The OFCCP audits federal contractors and subcontractors and can impose penalties and citations through the administrative process. Once OFCCP finds areas of noncompliance, it engages in conciliation with the contractor.


Continue Reading Trump administration’s 2018 budget proposes a merger of the EEOC and the OFCCP, prompting concerns over whether the two agencies can effectively operate as one

Following the report of a 16-member task force led by Equal Employment Opportunity Commission (EEOC) Commissioners Chai Feldblum (D) and Victoria Lipnic (R) in 2016, last week the EEOC issued proposed guidance for public comment on or before Feb. 9.

In fiscal 2015, the EEOC received 27, 893 private-sector charges alleging harassment, representing more than 31 percent of all charges filed with the EEOC. As Commissioner Lipnic commented, harassment charges “remain a far too dominant part” of the agency’s workload.

The guidance is intended to assist not only EEOC employees, but employers and employees generally to understand the extent of the problem and ways in which harassment can be prevented and addressed. And it pulls that together in one document, superseding five existing EEOC enforcement documents.
Continue Reading EEOC issues proposed guidance on harassment

Rejecting the EEOC’s position that an employer must reassign a qualified individual with a disability to a vacant position as a reasonable accommodation so long as the individual was minimally qualified for the position, the 11th Circuit on Dec. 7, 2016 held that even disabled workers in need of a reasonable accommodation must compete with other qualified employees for the vacancy. In EEOC v. St. Joseph’s Hosp., Inc., the plaintiff was a nurse who needed a cane for mobility. Because the cane posed a safety hazard in the psychiatric ward where she worked, she was given the opportunity to apply for other jobs, but was not given any preference due to her disability. When she did not obtain any other position at the hospital, she was terminated and the EEOC brought suit on her behalf.

After a jury trial resulted in a defense verdict, the trial court entered an injunction order requiring the hospital to mediate, which failed to result in reinstatement. On appeal, the 11th Circuit expressly addressed the question, “Does the ADA mandate noncompetitive reassignment?” The court concluded that the ADA does not require such preferential treatment of the disabled. In reaching this conclusion, the court relied on the statutory language that includes “reassignment to a vacant position” as part of a non-exhaustive list of items that the term reasonable accommodation “may include.” According to the court, the use of the word “may” implies that reassignment will be reasonable in some circumstances but not others.
Continue Reading Eleventh Circuit rejects EEOC position regarding reassignment as a reasonable accommodation

On Nov. 21, 2016, the Equal Employment Opportunity Commission (EEOC) issued its new and updated Enforcement Guidance on National Origin Discrimination, replacing its 2002 guidance on the subject.

In the guidance, the EEOC defines national origin discrimination as “discrimination because an individual (or his or her ancestors) is from a certain place or has the physical, cultural or linguistic characteristics of a particular national origin group.” This includes discrimination because of an individual’s “place of origin” such as a country, a former country (e.g., Yugoslavia) or a geographic region closely associated with a particular national origin group (e.g., Kurdistan). Further, a “national origin” or “ethnic” group is a “group of people sharing a common language, culture, ancestry, race and or other social characteristics,” such as “Hispanics, Arabs or Roma.”

Under the guidance, discrimination includes treating persons less favorably because they do not belong to a particular ethnic group, as well as because they do. Employees are also protected from discrimination because they associate with someone of a particular national origin (e.g., by marriage). The EEOC also takes the position that national origin discrimination can be based on an individual’s “perceived” status as a member of an ethnic group. However, as we explained in a recent blog based on the Longoria decision in the Northern District of Ohio federal court, few courts (including none in Ohio) have recognized such a theory of liability.
Continue Reading EEOC issues new guidance on national origin discrimination

Now that it is clear that Donald Trump will be the 45th President of the United States, questions are continuously being asked about how the regime change when he takes office in January of 2017 will impact labor and employment law. Acknowledging that any discussion of Trump’s policies before he takes office on Jan. 20, 2017 is purely speculation, it is important for employers to consider the potential implications on labor and employment law.
Continue Reading November election results likely will significantly impact labor and employment law in coming years

A special thanks to Adam Bennett for his assistance with this article.

An Ohio federal court in Longoria v. Autoneum N. Am., Inc. has held that a Mexican-American production supervisor who was born in Texas could not pursue a claim that he was discriminated against based on his belief that his employer perceived him to be of Mexican national origin. Noting the “widespread failure” of similar claims under Title VII and the fact that Ohio courts generally follow Title VII when evaluating the analogous Ohio law, the court held that claims of perceived national origin discrimination are not cognizable under Ohio law. The court also rejected Longoria’s claims of race discrimination and retaliation on the merits.
Continue Reading Ohio federal court rejects perceived national origin discrimination claim

Earlier this week, the EEOC issued new guidance addressing what it described as common issues it continues to see in discrimination charges filed under the Americans with Disabilities Act. This new guidance provides nothing new that has not already been included in its Revised Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, but does highlight, among other issues, the EEOC’s view that the ADA requires employers to:
Continue Reading EEOC issues new guidance on employer-provided leaves as a reasonable accommodation