traps for the unwary

Subscribe to traps for the unwary

As we told reminded you last month here, the Consumer Financial Protection Bureau (“CFPB”), the agency that has enforcement responsibility over the Fair Credit Report Act (“Act”), revised the forms which employers must use to comply with the FCRA, effective January 1, 2013. There was only one little problem with the forms the CFPB provided for use: They contained various typos and technical errors that the CFPB now has recognized in its Supplementary Information in the November 14, Federal Register Notice.
Continue Reading Not So Fast … CFPB Issues Revised Forms for FCRA Compliance by January 1, 2013, First Ones Contained Typos and Other Errors

By now, you should know that the Equal Employment Opportunity Commission (“EEOC”) has issued “Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions”, which is designed to restrict criminal background checks by employers, but you may not know that enforcement responsibility for the Fair Credit Reporting Act (“FCRA”) has been transferred from the Federal Trade Commission to the recently created Consumer Financial Protection Bureau (“CFPB”).
Continue Reading Complying with the FCRA Amendments Before January 1, 2013 – a Step-By-Step Guide

Charlotte Beck had been employed with Buckeye Pipeline Services Company (“Buckeye”) for over 16 years as a 12-hour operator. In 2009, however, Buckeye underwent a company-wide reduction in force. Buckeye created a “design team” to reform the organizational structure of the Company and implement a team-based leadership model that would be used going forward.
Continue Reading Does the Use of Subjective Criteria in a RIF Show Discrimination? The Sixth Circuit Says Not Necessarily

In a case that vividly demonstrates how employers are vulnerable to insider cyber attacks, a recent federal court decision out of the Southern District of Ohio addressed the scope of federal statutes designed to address such activity.
Continue Reading State Tort and CFAA Claims Survive Motion to Dismiss In Ohio Employee Cyberhacking Case.

Presume for a moment an employee complains to Human Resources that a co-worker’s perfume makes her want to choke. The workplace sometimes brings us "closer" together and one worker’s scent can be another worker’s source of distraction or even discomfort. If the complaining employee’s problem is just a matter of personal preference, then the employer has no legal duty to take action, but may want to explore a diplomatic way to resolve the dispute. On the other hand, a recent decision by the United States District Court for the Southern District of Ohio shows that, in some circumstances, this issue can result in a legal challenge.

In Core v. Champaign Cty. Board of County Commissioners, (S.D. Ohio No. 3:11-CV-00166), an employee sued the County under the Americans with Disabilities Act (ADA) and under Ohio disability discrimination law for not accommodating her request for a "fragrance-free" workplace policy. The employee suffered from severe asthma and chemical sensitivity to certain perfumes and other scents. She began experiencing difficulty breathing at work when co-workers in her proximity were wearing a perfume called "Japanese Cherry Blossom." According to the Complaint, her initial request that the employer ask employees to refrain from wearing that perfume went unheeded. Her symptoms became more severe and eventually she had to have emergency medical treatment.

Shortly after the employee sought medical treatment, co-workers began to mock her, including in Facebook posts making fun of her condition. She also alleges that employees began to wear the perfume intentionally around her and that the employer took no action to stop this conduct.

The employee presented a request to the employer signed by a nurse practitioner asking that co-workers be advised of the employee’s sensitivity and that they be asked to avoid use of the perfume. The employer apparently communicated by email to employees asking that they not approach the employee personally, and instead communicate with her only by telephone or email. The employer also asked the employee to attempt to have face-to-face conversations with staff only in well-ventilated, open areas of the office.…

Continue Reading Employer Refusal to Provide a “Fragrance-Free” Workplace May Violate ADA

The Sixth Circuit’s decision in Berryman v. SuperValu Holdings, Inc., clarifies that the "totality-of-the-circumstances" test used in hostile work environment cases does not have to be based on what the individually employee actually experiences, but rather what the individual employee is aware of.

In the case, eleven current and former SuperValu warehouse employees alleged that over a twenty-five year period, they were exposed to a racially hostile work environment that included vulgar graffiti, overtly racist comments by coworkers, and racially motivated pranks. The district court tossed out the employee’s claims out finding that while the acts were reprehensible, they did not amount to a hostile work environment. The Sixth Circuit affirmed the lower court and in doing so clarified what can be considered in the "totality-of-the-circumstances" test.

By way of relevant background, to prevail on a hostile work environment claim, a plaintiff must show that his work environment was both objectively and subjectively hostile. In evaluating hostile work environment claims, courts look at the totality of the circumstances and consider things like the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.

Oftentimes plaintiffs want to rely on instances of discrimination/harassment that happened to other employees, but not to them personally. Whether or not the experiences of co-workers are relevant is a common dispute among counsel in defining the scope of discovery in these types of cases. On one end, plaintiffs typically argue that courts should consider all employees complaints in the aggregate to show a hostile environment, regardless of whether the individual plaintiff was actually aware of the other incidents or not. On the other, employers typically argue that courts should only consider the actual experience of the individual plaintiff.

The Sixth Circuit declined both approaches in favor of a middle-of-the-road approach and found that: "a plaintiff does not need to be the target of, or a witness to harassment in order for us to consider that harassment in the totality of the circumstances; but he does need to know about it." In coming to this conclusion, the court noted that an employer could create a hostile work environment by directing discriminatory acts or practices at a protected group of which the plaintiff is a member, and not just at the plaintiff personally. The decision, however, does make clear that a plaintiff does have to be aware of the allegedly discriminatory acts or practices directed at others in order to use such evidence in the plaintiff’s individual case. Thus, for the plaintiffs to be able to use their collective experiences in the aggregate, they would have had to "marshal basic evidence to show that they were individually aware of the harassment experienced by other plaintiffs." Here they did not.…

Continue Reading Sixth Circuit Takes the Middle of the Road Approach and Clarifies that the “Totality-of-the-Circumstances” Test in Hostile Work Environment Cases is Based on What the Employee is Aware of, Not Necessarily What the Employee Actually Experiences

Here’s a recent blog post from my partner Bill McGrath that appeared Wednesday on our sister blog – Federal Securities Law Blog. In his post, Bill discusses a recent decision from the First Circuit in which the court ruled that, while the whistleblower protections of the Sarbanes-Oxley Act apply to employees of public companies, they do…