Wyatt Employment Law Report

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Employers Beware: The Lateral Transfer Of An Employee Can Be An Adverse Employment Action

by Michael D. Hornback

On January 14, 2014, the U.S. Court of Appeals for the Sixth Circuit reversed a grant of summary judgment in favor of the employer, finding that a jury should determine whether the lateral transfer of an employee constituted an adverse employment action. Continue reading

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Court Upholds Large Judgment Against EEOC For Bringing Frivolous Lawsuit

By Edwin S. Hopson

The U.S. Court of Appeals for the Sixth Circuit in EEOC v. Peoplemark, ___ F3rd ___, No. 11-2582 (2013) recently affirmed a judgment against the U.S. Equal Employment Opportunity Commission in the sum of $751,942 for attorney fees and costs sought by Peoplemark, which claimed that EEOC’s action brought against it was frivolous.  The Court of Appeals, in a 2-1 decision, agreed that EEOC’s claim that the company had a policy of denying employment to convicted felons and that it was unlawful and had a disparate impact on African-Americans lacked merit and was frivolous.  The company early on in the process had established that it had in fact hired convicted felons.  It would not be surprising if the EEOC sought review of this decision by the U.S. Supreme Court.

The Court of Appeals decision can be found at:


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The Sixth Circuit’s Blizzard Opinion Might Chill Frivolous Claims

by Leila G. O’Carra

Any employer facing an age discrimination claim should review the bright-line rules and employer-friendly standards explained in the Sixth Circuit’s recent Opinion in Blizzard v. Marion Technical College, 698 F.3d 275 (6th Cir. 2012).  Defendant Marion Technical College (“MTC”) fired Peggy Blizzard for poor job performance.  Blizzard sued MTC claiming age discrimination and retaliation.  The district court granted summary judgment to MTC and the United States Court of Appeals for the Sixth Circuit affirmed. 

The Sixth Circuit cited Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177 (2009), for the burden of persuasion in age discrimination cases: the plaintiff must show that “age was the ‘but-for’ cause of the employer’s adverse action.”  Blizzard, at 283.  See also Fleishman v. Continental Casualty Company, 698 F.3d 598, 604 (7th 2012)(relying on Gross in holding that plaintiffs in ADEA cases must “show evidence that could support a jury verdict that age was a but-for cause of the employment action at the summary judgment stage,” and collecting similar cases in other circuits).  The Court then analyzed Blizzard’s prima facie case: Blizzard is over age forty (she was born on January 18, 1951), MTC took adverse action against her by firing her, Blizzard is qualified for her job, and a significantly younger worker outside the protected class replaced her.    

In the Sixth Circuit, “in the absence of direct evidence that the employer considered age to be significant, an age difference of six years or less between an employee and a replacement is not significant.”  Blizzard, at 284, quoting Grosjean v. First Energy Corp., 349 F.3d 332, 340 (6th Cir. 2003).  On the other hand, an age difference of 10 years or  more is generally considered significant.  Id.  There is a “zone of discretion” in ADEA cases involving replacement by a person who is between six and ten years younger than the plaintiff.  Id.  Furthermore, “[a] person is not replaced when . . . the work is redistributed among other existing employees already performing related work.” Id. (internal quotation marks omitted).  The Sixth Circuit upheld the district court’s determination that Blizzard’s replacement, who was 6.5 years younger than Blizzard, was “significantly younger” under the facts and circumstances of the case.

After Blizzard made out her prima facie case, it was up to MTC to articulate legitimate business reasons for Blizzard’s dismissal.  MTC claimed: 

Blizzard failed to follow proper procedures in using the new software systems, which resulted in unmanageable vendor lists, duplicate payments to vendors and errors in processing accounts payable receipts.  She was unaccountably absent from her work area, she failed to perform necessary functions of her job and exhibited a general unwillingness to cooperate with other employees in the business office or to attend meetings and training on the new software systems. She resisted changes to what she perceived to be the duties of the Accounts Payable Clerk job.

Based on this evidence, even if Blizzard could create an issue of fact as to the quality of her performance, MTC would still be entitled to summary judgment under the “modified honest belief” rule.  Id. at 286.  The rule provides that “‘for an employer to avoid a finding that its claimed nondiscriminatory reason was pretextual, the employer must be able to establish its reasonable reliance on the particularized facts that were before it at the time the decision was made.’” Id. (citations omitted).  The employee, in turn, “must be afforded the opportunity to produce evidence to the contrary, such as an error on the part of the employer that is ‘too obvious to be unintentional.’” Id. (citations omitted).  To overcome the employer’s invocation of the honest belief rule, the employee “must allege more than a dispute over the facts upon which [the] discharge was based.  He must put forth evidence which demonstrates that the employer did not ‘honestly believe’ in the proffered non-discriminatory reason for its adverse employment action.” Id. (citation omitted).  Under this standard, Blizzard’s disagreement with MTC’s business judgment regarding her work is insufficient evidence of pretext.  Id. citing Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106, 1116 (6th Cir. 2001).

Blizzard also failed to establish that a decision-maker made relevant ageist remarks.  Comments that are ambiguous or unrelated to the decision to terminate Blizzard’s employment are not evidence of discrimination.  Blizzard, at 287.  “[S]tatements by decisionmakers unrelated to the decisional process itself cannot suffice to satisfy the plaintiff’s burden…of demonstrating animus.”  Id. quoting Bush v. Dictaphone Corp., 161 F.3d 363, 369 (6th Cir. 1998).

As to retaliation, Blizzard claimed that she had a number of conversations with co-workers and supervisors in which she complained about age discrimination, and that these discussions constituted protected activity.  The Court held that MTC did not know about the co-worker conversations, that most of the conversations were too vague to place MTC on notice of Blizzard’s age discrimination claim, and that all of the conversations took place more than a year before Blizzard was fired.  The long gap between Blizzard’s alleged protected activity and MTC’s decision to fire her “does not raise the inference that [the] protected activity was the likely reason for the adverse action.”  Blizzard, at 289, quoting Lindsay v. Yates, 587 F.3d 407, 418 (6th Cir. 2009).  See also Anderson v. Donohoe, 699 F.3d 989, 996 (7th Cir. 2012) (a three month gap between protected activity and discipline is not, on its own, enough to create a jury issue on the inference of retaliation).   

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Religion in the Workplace: How to Accommodate

By Emily C. Lamb

The end of the year is a time of joy and celebration as much of the American workforce observes one or more of the religious holidays.  Yet employers sometimes struggle as to how to celebrate these holidays while recognizing the diversity of religious beliefs.  As the holiday season rolls into full swing, it is particularly important for employers to remember their obligation to accommodate employees’ requests to observe religious practices. 

Both Federal and state law make it unlawful for employees to discriminate against employees on the basis of religion.  “Religion” includes all aspects of religious observance, practice, and beliefs.  It includes not only traditionally recognized religions, but also unorganized religions and non-traditional belief systems.  Employers must make reasonable accommodations to the sincerely held religious beliefs of employees when the accommodations can be made without undue hardship.  In other words, an employer must accommodate an employee’s religious beliefs unless the employer can show that the accommodation request imposes more than minimal cost to the operation of the employer’s business.   

One commonly recognized reasonable accommodation is granting employees time off for religious observances.  While many employers in the United States provide time off for the traditional Christian holidays, the ever growing diversity of the American workforce means that employers need to be able to accommodate a variety of religious beliefs and practices.  This means that employers should adopt a more flexible attitude towards employees whose religious beliefs don’t coincide with a traditional work schedule.

One approach is to use “floating holidays,” which allow employees to take paid time off for holidays that are not included on the company calendar.  Another approach is to permit employees to work calendared holidays in exchange for paid days off to celebrate non-calendared religious holidays.  A third and increasingly popular option is the use of paid time off.  This highly flexible approach gives employees a set number of hours of paid leave which the employees may use for any reason, including holidays.

Religious observance requests are not necessarily limited to time off of work.  They may include a variety of requests ranging from exceptions to dress code standards, modifications of work schedules, and authorization of various expressions of religion in the workplace such as the display of religious symbols.  As with requests for time off, employers should remain flexible and make reasonable accommodations to the religious needs of employees where such accommodations can be made without undue hardship.

Employers always need to be mindful of all requests for religious accommodation.  This is especially important during this time of year when employers are likely to make requests to observe an array of religious holidays.  By remaining flexible and engaging with employees to determine how to best accommodate employees’ requests while maintaining a successful work environment, employers can fulfill their legal obligations while enabling their employees to fully celebrate the holiday season.


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EEOC’s New Guidance on Use of Criminal Records in Employment Decisions

By Rachel K. Mulloy

On April 25, 2012, the United States Equal Employment Opportunity Commission (EEOC) issued Guidance regarding the use of criminal records in employment decisions under Title VII of the Civil Rights Act of 1964.  The Guidance discusses whether an employer’s use of criminal history violates Title VII, focusing specifically on disparate impact claims based on neutral screening policies and practices that have the effect of disproportionately screening out a group protected under Title VII.  While having a criminal history is not a protected category under Title VII, given the increase over the past 20 years of people in the working-age population who have criminal records and given national data finding criminal record exclusions have a disparate impact based on race and national origin, the EEOC is concerned that using criminal records to evaluate employees could create barriers to employment that violate Title VII. 

Employers can avoid liability for disparate impact claims under Title VII by showing the policy or practice is “job related for the position in question and consistent with business necessity.” To establish that an exclusion based on criminal conduct that has a disparate impact is job related and consistent with business necessity, “the employer needs to show that the policy operates to effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position.”  The EEOC provides two circumstances in which it believes employers can “consistently meet the ‘job related and consistent with business necessity’ defense.” 

First, the employer can validate the exclusion based on criminal conduct “in light of the Uniform Guidelines on Employee Selection Procedures (if there is data or analysis about criminal conduct as related to subsequent work performance or behaviors).”

Second, the employer can use a “targeted screen.”  There are two steps to the “targeted screen” process: (1) the employer creates a targeted screen “considering at least the nature of the crime, the time elapsed, and the nature of the job,” and (2) the employer provides an opportunity for an “individualized assessment” of the employee.  An “individualized assessment” consists of notice to the employee that she has been screened out because of a criminal conviction, an opportunity for the employee to demonstrate the exclusion does not apply based on her particular circumstances, and consideration by the employer as to whether the information provided warrants an exception to the exclusion. The employee’s showing may include information indicating she was incorrectly identified in the criminal record, the record is inaccurate, facts surrounding the offense, the number of offenses for which she was convicted, older age at the time of conviction or release from incarceration, evidence that she performed the same type of work post-conviction without incident, the length and consistency of employment before and after the offense, her efforts at rehabilitation, any references, and whether she is bonded under a state or federal bonding program.  While an individualized assessment is not always required it may help employers avoid liability by allowing them to consider more complete information on individual employees.

The Guidance notes that even if an employer successfully demonstrates its policy or practice is job related for the position in question and consistent with business necessity, a Title VII plaintiff could still prevail by demonstrating there is a less discriminatory “alternative employment practice” that serves the employer’s legitimate goals as effectively as the challenged practice but which the employer refused to adopt.

Additionally, the Guidance acknowledges that individuals with certain kinds of convictions may be barred by federal law from certain types of employment; compliance with such laws is a defense to discrimination. 

The Guidance concludes by offering the following best practice tips for employers who consider criminal records when making employment decisions:

  • Eliminate policies or practices that absolutely exclude people from employment based on any criminal record;
  • Train managers, hiring officials, and decisionmakers on Title VII and its prohibition on employment discrimination;
  • Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct;
  • Limit inquiries about criminal records to those for which exclusion would be job related for the position in question and consistent with business necessity; and
  • Keep information about employees’ criminal records confidential and only use it for the purpose for which it was intended.


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NLRB General Counsel’s Office Approves Two Employment-At-Will Policies

By George J. Miller
In July of this year I posted on this blog that the NLRB’s Acting General Counsel is beginning to scrutinize employers’ at-will employment policies.  At that time I reported about an NLRB administrative law judge’s decision that an at-will policy which said that the at-will relationship could never be altered violated the National Labor Relations Act (NLRA), because employees could reasonably construe it to prohibit them from exercising their right under the NLRA to attempt to obtain union representation and negotiate a collective bargaining agreement or otherwise to advocate concertedly for a change in the at-will relationship.
On October 31st, NLRB Acting General Counsel Lafe Solomon released two memoranda from his office’s Division of Advice which analyze at-will employment clauses in two employee handbooks and find that both are lawful under the NLRA.  Together with the earlier case, they provide a guide for employers on how to write these policies so that they will withstand NLRB scrutiny. In the handbook of trucking company Rocha Transportation, the clause advised drivers that their employment is at-will and may be terminated at any time.  It said that, “No manager, supervisor, or employee of Rocha Transportation has any authority to enter into an agreement for employment for any specified period of time or to make an agreement for employment other than at-will.”  It continued: “Only the president of the Company has the authority to make any such agreement and then only in writing.” The Division of Advice Memo notes that this clause explicitly states that the relationship can be changed, and so employees would not reasonably assume that they were prohibited from exercising their NLRA rights.The other memo concerned a case involving Mimi’s Café in Casa Grande, Arizona.  The Teammate Handbook description of at-will employment at Mimi’s Cafe’ includes the sentence: “No representative of the Company has authority to enter into any agreement contrary to the foregoing “employment at will” relationship.” The Advice Memo found this was not unlawfully broad because the clause does not require employees to agree that the employment relationship cannot be changed in any way, but merely highlights that the employer’s representatives are not authorized to change it.

According to an NLRB press release, “[t]he Advice Memos are provided as guidance for employers and human resource professionals in a developing area that has drawn considerable attention recently.”  The press release concluded:  “Because Board law in this area remains unsettled, the Acting General Counsel is asking all Regional Offices to submit cases involving employer handbook at-will provisions to the Division of Advice for further analysis and coordination.”

Any non-union company which has an employee handbook and might find itself the target of a union organizing campaign should carefully scrutinize any and all at-will policies in the handbook.  If a union organizing campaign begins, it is certain that the union will review the employee handbook and will file an unfair labor practice charge at the NLRB if the at-will policy is improperly worded.  Other policies which are vulnerable to attack are confidentiality, social media, union-free, off duty access to property, no solicitation/no distribution, conflicts of interest and outside employment.  Unlawful policies must be rescinded or reworded, and employers must notify employees in writing that they have done so, that they will not maintain or enforce such unlawful policies, and that they will not violate the NLRA in any like or related manner.  Thus, if the union is successful in attacking these policies, that could bolster their image in the eyes of the employees and influence the outcome of the organizing campaign. 


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Court Holds That Requiring an Employee to Undergo Psyhological Counseling May Violate ADA

By Edwin S. Hopson

On August 22, 2012, the U.S. Court of Appeals for the Sixth Circuit in Kroll v. West Lake Ambulance Authority, ___ F.3d ___, Case No. 10-2348, held that requiring an employee to undergo psychological counseling may violate the Americans with Disabilities Act.

The ADA states:

“A covered entity shall not require a medical examinationand shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.”

The plaintiff had had an affair with a co-worker and after an incident related to that during with which it was reported that the plaintiff had been screaming into her phone while on an emergency run, her supervisor required her to undergo psychological counseling before returning to work.  She refused and never returned to work.  A suit was filed claiming, among other things, an ADA violation. The district court granted summary judgment dismissing the case and the former employee appealed.

The appellate court in reaching its decision relied heavily on EEOC guidance.  That guidance consists of seven factors:

(1) whether the test is administered by a health care professional;

(2) whether the test is interpreted by a health care professional;

(3) whether the test is designed to reveal an impairment or physical or

mental health;

(4) whether the test is invasive;

(5) whether the test measures an employee’s performance of a task or

measures his/her physiological responses to performing the task;

(6) whether the test normally is given in a medical setting; and,

(7) whether medical equipment is used.

The court found that factors one, two and three were present, and reversed and remanded the case to allow more development of a record as to the remaining factors.


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