Category Archives: Sexual Harassment

June 15, 2016

OFCCP’s New Sex Discrimination Rule Expands Employee Protections Based on Pregnancy, Caregiver Status, and Gender Identity

Biggs_JBy Jude Biggs

This week, the OFCCP updated its sex discrimination guidelines on topics such as accommodations for pregnant workers, gender identity bias, pay discrimination, and family caregiving discrimination. Intended to align the OFCCP’s regulations with the current interpretation of Title VII’s prohibitions against sex discrimination, the new rule will require federal contractors to examine their employment practices, even those that are facially neutral, to make sure that they do not negatively affect their employees. The new rule takes effect on August 15, 2016.

Overview of New Sex Discrimination Rule

The existing OFCCP sex discrimination guidelines date back to the 1970s. The new rule is designed to meet the realities of today’s workplaces and workforces. Today, many more women work outside the home, and many have the financial responsibility for themselves and their families. Many women have children while employed and plan to continue work after giving birth to their children. Women sometimes are also the chief caregivers in their families. The updated regulations are meant to offer women and men fair access to jobs and fair treatment while employed.

The new rule defines sex discrimination to include discrimination on the basis of sex, pregnancy (which includes childbirth or related medical conditions), gender identity, transgender status and sex stereotyping. The rule specifies that contractors must provide accommodations for pregnancy and related conditions on the same terms as are provided to other employees who are similarly able or unable to perform their job duties. For example, contractors must provide extra bathroom breaks and light-duty assignments to an employee who needs such an accommodation due to pregnancy where the contractor provides similar accommodations to other workers with disabilities or occupational injuries.

The new rule also incorporates President Obama’s July 2014 Executive Order that prohibits federal contractors from discriminating on the basis of sexual orientation and gender identity. In addition, contractors that provide health care benefits must make that coverage available for transition-related services and must not otherwise discriminate in health benefits on the basis of gender identity or transgender status.

The rule prohibits pay discrimination based on sex. It recognizes the determination of “similarly situated” employees is case-specific and depends on a number of factors, such as tasks performed, skills, effort, levels of responsibility, working conditions, job difficulty, minimum qualifications, and other objective factors. Notably, the OFCCP rule says that employees can be “similarly situated” where they are comparable on some of the factors, but not all of them.

Unlawful compensation discrimination can result not only from unequal pay for equal work, but also from other employer decisions. Contractors may not grant or deny opportunities for overtime work, training, apprenticeships, better pay, or higher-paying positions or opportunities that may lead to higher-paying positions because of a worker’s sex. Employees may recover lost wages for discriminatory pay any time a contractor pays compensation that violates the rule, even if the decision to discriminate was made long before that payment.  Read more >>

March 3, 2016

Handling Harassment Allegations: What Constitutes A Hostile Work Environment?

Vilos_JBy Joanna Vilos

Employees sometimes complain about undesired or harassing conduct that does not rise to a level that creates a hostile work environment in violation of Title VII. A recent federal court case in the District of Wyoming reveals how to take steps to avoid liability and how to defend against such allegations if an employee files a claim.

Hostile Work Environment Claim

As we all know, employees tend to use the phrase “hostile work environment” pretty loosely.  But a true hostile work environment claim generally consists of conduct that is so severe or pervasive that it alters the terms or conditions of the individual’s employment. It also must be unwelcome conduct that is based on an employee’s protected characteristic, such as sex, religion or national origin.

On the other hand, conduct that is merely insensitive, tasteless or vulgar may not give rise to a hostile work environment claim. According to the Tenth Circuit Court of Appeals (whose cases apply to Colorado, Utah, Wyoming, Kansas, New Mexico, and Oklahoma), “Title VII’s mandate is not to ensure workplace harmony or create a finishing school.”

Whether conduct is severe or pervasive enough to support a hostile work environment claim depends on many factors, such as the frequency of the discriminatory conduct, how severe the conduct is, whether it is physically threatening or humiliating versus a mere offensive utterance, and the extent to which it unreasonably interferes with an employee’s work performance.

In a recent case in federal court in Wyoming, Carolin Miller, an administrative assistant for the Union Pacific Railroad Steam Locomotive Shop in Cheyenne, alleged that her supervisor, Edgar Dickens, sexually harassed her by:

  • forcing into a seat next to Miller at a group dinner and forcefully pushing his legs against the side of Miller’s legs;
  • complimenting Miller on a costume she wore to a group event and asking if he could adjust her cap, and then adjusting it;
  • telling Miller that “the most unattractive woman could be wearing the same style cap and it would be a major turn on for him;”
  • lingering to get his things when Miller asked Dickens to leave so she could change her clothes;
  • texting Miller on her private phone to ask if she wanted to go to dinner with him alone (she declined);
  • texting Miller to ask if she would join him at the train to keep him company (she declined);
  • sitting next to Miller at a second dinner and again, forcibly pushing his legs into hers; and
  • on multiple days, asking Miller to work late to keep him company because he “did not have a life.”

Based on that alleged conduct, Miller sued her employer alleging a sexually hostile work environment in violation of Title VII.

Claim Failed As A Matter of Law

Judge Nancy Freudenthal dismissed Miller’s hostile work environment claim against Union Pacific Railroad without holding a trial. She ruled that no reasonable jury could find that the “workplace was permeated with discriminatory intimidation, ridicule, and insult sufficiently severe or pervasive to alter the conditions of Miller’s employment and create an abusive working environment based on Miller’s sex.” Miller v. Union Pac. R.R., Case No. 14-CV-47 (D. Wyo. June 18, 2015).

In dismissing Miller’s claim, Judge Freudenthal noted that Miller admitted that Dickens never touched her in any intimate way or private area, never used graphic or sexual language with her, and never showed her anything that was sexually offensive.

Company’s Remedial Measures

Despite finding that no hostile work environment existed, the Court briefly described the measures that Union Pacific Railroad took upon learning of Miller’s allegations – steps that helped the company avoid liability. A company representative, Donna Colley, talked to Dickens and explained that Miller believed he had acted inappropriately and Miller did not appreciate his requests that she stay late or go to dinner. Colley told Dickens to stop those behaviors. Colley also reviewed the company’s EEO policy book with Dickens and discussed the retaliation policy.

Minor Snubs Were Not Retaliation

Miller also alleged that Dickens retaliated against her after she made the sexual harassment complaint. She alleged that her office was moved to a toilet/closet room, she was ostracized by management, some of her job duties were taken away for no reason and Dickens sent her home for two days.

Noting the U.S. Supreme Court’s recent decision explaining that Title VII retaliation claims require that the desire to retaliate be the “but-for” cause of the challenged employment action, Judge Freudenthal ruled that Miller failed to establish a retaliation claim. Notably, she found that some of the alleged retaliatory conduct did not constitute an adverse employment action at all. For example, the suggestion that Miller work out of a break room instead of sharing office space with Dickens came from the company’s EEO officer who was attempting to provide Miller with some distance from Dickens in light of her claims that he was sexually harassing her. Because the suggestion was not mandatory but instead was just an option, the court determined that it was not an adverse employment action.

As for Miller’s claims that Dickens was unfriendly, failed to respond to her emails and was “generally unpleasant” to her after she filed her complaint, the court found that such behavior was only a minor slight or snub that was not actionable under Title VII.

The court noted that Miller’s salary and benefits did not change after she filed her harassment complaint. Her vagueness about what job duties were taken away from her and the fact that Miller voluntarily chose to take a couple days off also undermined her retaliation claim. The court also noted that because Miller’s time off occurred approximately two months after her harassment complaint, Miller failed to establish a causal connection that would support a retaliatory motive. The court ultimately dismissed all of Miller’s claims, including her retaliation claim, in their entirety.

Practical Steps When Facing Less Severe or Pervasive Allegations

In order to avoid liability for a hostile work environment, you must take steps to stop and remedy the unlawful harassing behavior. But what should you do when the complaint involves relatively minor conduct, or behavior that is not based on a protected characteristic?

First, investigate it. Even though the initial report may involve conduct that you don’t believe rises to the level of a legal violation, you still need to find out the full extent of the conduct. Engage in a thorough and timely investigation by interviewing the individuals involved as well as potential witnesses. Obtain any supporting evidence, such as videos of the workplace, diaries or other documents that may shed light on the allegations. Make sure you have the facts before deciding if any action needs to be taken.

Second, if you conclude that the conduct may have been sufficiently severe or pervasive so as to create a hostile work environment, take appropriate steps to stop it immediately and impose appropriate discipline in accordance with your policies.

If, however, you question whether the conduct was severe or pervasive enough to create a hostile work environment, your best practice is to take steps to defuse the situation and put a stop to any unprofessional conduct. Without going into detail about any actions you’ve taken toward other employees and any specific statements made by other employees, talk to the employee who reported the alleged harassment and give a general overview of the outcome of your investigation. Emphasize to the reporting employee that your organization takes such reports seriously and you want to know immediately if any inappropriate conduct continues or escalates. If appropriate, offer any viable options that may make the employee feel more comfortable, such as changing work areas or shifts to reduce contact between the employee and the perceived “harasser.” Just be careful not to make any mandatory changes that could be construed as an adverse employment action that would give rise to a retaliation claim.

Be sure to talk to the alleged “harasser” as well. Let him or her know the conclusions you’ve reached in your investigation (again, without divulging confidential details) and any company policies that may come into play. Identify any behavior that may be having a negative effect on the workplace and remind the individual that neither discriminatory harassment nor retaliation will be tolerated.

Third, follow up periodically to ensure that no inappropriate behavior is occurring. Keep your eyes and ears open and check in with the employee who was feeling harassed. If any new allegations surface, investigate them. As always, be certain to document your remedial efforts. 

Deciding whether conduct is sufficiently severe or pervasive to result in liability is not always an easy determination. And, truth be told, if inappropriate or unprofessional conduct is occurring in your workplace, you have reason to take action to put a stop to it even if it might not rise to the level of a legal violation.  Follow the steps above to show that you treat all reports of inappropriate conduct seriously and do not tolerate conduct that creates a hostile work environment. In the end, you may not be able to stop employees from pursuing their claims in court, but you will have taken the necessary steps to defend against them and help avoid liability.

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January 19, 2016

An Uncomfortable, But Not Hostile, Work Environment

Cave_BBy Brad Cave

Certain workplace behavior may be unusual, uncomfortable or downright weird, but may not be unlawful. Do you want to take the chance of knowing what crosses that line?

Imagine receiving this complaint from an employee: “My supervisor frequently compliments my appearance, clothing and cologne. He touched my back and buttocks, claiming he was showing me where he was experiencing back pain. He instructed me to participate in two body-fat contests requiring me to wear a speedo where he again complimented my appearance and tried to touch my buttocks. He repeatedly asked me to join him for drinks during a company event.”

Do these allegations suggest a hostile work environment? Would your company be liable for sex discrimination?

Real Case Offers Guidance

These facts arose in an actual lawsuit filed by Bryan McElroy, a former district sales manager for American Family Insurance (AFI). McElroy was fired by his supervisor, Tony Grilz, after failing to meet sales goals and engaging in insubordinate behavior. After his termination, McElroy filed a charge with the Equal Employment Opportunity Commission (EEOC) and later filed suit in federal court, alleging, among other things, that he was subjected to a hostile work environment based on the above-recited behavior by Grilz.

Uncomfortable Work Behavior

The federal court acknowledged that “some of Grilz’s conduct could make many people uncomfortable.” But the district judge ruled that the conduct did not rise to the level of being so objectively offensive that it created a hostile or abusive work environment. The district court rejected McElroy’s hostile work environment claim and granted summary judgment to AFI.

On appeal to the Tenth Circuit Court of Appeals (whose decisions apply to employers in Colorado, Wyoming, Utah, Kansas, and New Mexico), McElroy argued that if the conduct could make many people uncomfortable, a jury could find it sufficiently offensive to support his hostile work environment claim. The Tenth Circuit disagreed. It failed to see how behavior that was capable of causing “mere discomfort” would necessarily alter the conditions of employment so as to create a hostile work environment.

The court stated that to succeed on a hostile work environment claim, an employee must establish that the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. The court reiterated that “even incidents that would objectively give rise to bruised or wounded feelings will not on that account satisfy the severe or pervasive standard” necessary for an actionable claim under Title VII. The court affirmed the grant of summary judgment in favor of AFI and against McElroy on his hostile work environment claim. McElroy v. Am. Family Ins., No. 14-4134 (10th Cir. Oct. 30, 2015).

Handling Questionable Complaints

What would you do if you received a complaint based on conduct such as what McElroy reported? Act on it? Ignore it? Here are some tips for handling complaints that may, or may not, rise to the level of severe or pervasive conduct.

Tip #1: Treat Each Complaint Seriously

It may be tempting to dismiss complaints of workplace harassment that may seem minor or inoffensive to you. Don’t do it. You never know if the complainant is telling you the full story or if other, more serious allegations are waiting to be told. In addition, failing to look into a report of workplace harassment will negate certain defenses if the complainant decides to file a lawsuit.

Tip #2: Conduct an Investigation

All reports of workplace harassment should be investigated. Hopefully, your investigation will show that no additional inappropriate behavior is occurring and that the reported conduct was an isolated, non-severe incident. You may, however, find that the conduct is more widespread. Perhaps other employees reporting to the same supervisor have experienced similar conduct, or the conduct has been escalating to involve more physical contact. You need to dig deeper to get the full picture of what the employee and his/her co-workers may be experiencing.

Tip #3: Take Action To Stop Inappropriate Behavior

Whether the behavior rises to the level of creating a hostile work environment or not, take action to stop it. Talk to the person acting inappropriately and explain that conduct such as touching and making comments about other employees’ looks leads to an uncomfortable work environment and must cease. Follow up with the complainant to make sure that he or she is not experiencing further inappropriate behavior or retaliation. Nip such conduct in the bud so that mere uncomfortable behavior does not escalate to unlawful harassment.  

Tip #4: Train Supervisors and Employees Annually

Conduct annual training on sexual harassment and other inappropriate workplace behavior in order to educate your workforce on your harassment policies and complaint-reporting mechanisms. Use training sessions to reinforce your commitment to keeping your company free of discrimination and retaliation. Make sure managers and supervisors are trained on recognizing and responding to complaints of workplace harassment.

Conclusion

Unlawful workplace harassment is tricky to define with any certainty. Conduct that one judge or appellate court finds as causing “mere discomfort” may be deemed sufficiently severe or pervasive so as to create a hostile work environment by another judge or court. Your best practice is to keep inappropriate behavior out of your workplace, follow the tips above and stay out of court in the first place.

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September 15, 2015

Wyoming Discrimination Charges: A Look at the Numbers

Cave_BBy Brad Cave 

Mark Twain is credited with saying that “facts are stubborn things, but statistics are more pliable.” The Wyoming Labor Standards Division and the EEOC both keep statistics of the types of discrimination charges the agencies receive from Wyoming employees. When it comes to discrimination charges, the allegations are almost always pliable, but the statistics show us some interesting things for employers to ponder.

Wyoming Labor Standards Charges 

The Wyoming Fair Employment Practices Act makes it unlawful for employers to discriminate on the basis of age, sex, race, creed, color, national origin, ancestry, pregnancy or disability. The Wyoming Department of Workforce Services’ Labor Standards Division is the state agency that processes and investigates most complaints of employment discrimination filed by Wyoming workers. 

In 2014, the Wyoming Labor Standards Division received a total of 203 discrimination charges. It processed 182 of those charges and deferred the remaining 21 charges to the federal Equal Employment Opportunity Commission (EEOC) because they were either untimely under state law or contained allegations of Equal Pay Act violations. The Division reports the breakdown of 2014 charges by allegation as follows: 

Type

No. of Charges

Percentage of Total Charges

Retaliation

76

41.8%

Sex

55

31.2%

Disability

46

25.3%

Age

33

18.1%

National Origin

27

14.8%

Race

21

11.5%

Religion

  7

  3.8%

You math wizzes in the audience have already exclaimed that the percentages exceed 100%, and the author must be numerically challenged. But, many charges include allegations of multiple types of discrimination. Indeed, charges often include an allegation of discrimination on the basis of protected class, and an allegation of retaliation in response to complaints about the discrimination. As you can see, Wyoming had more retaliation charges than any other type of charge. That mirrors the nationwide statistics where retaliation charges lead the list of most-filed charges. Not far behind are sex discrimination charges, with disability charges as the third most-frequently filed. 

EEOC Charge Statistics for Wyoming Charges 

The EEOC also maintains charge statistics for each type of discrimination that is alleged under the federal discrimination laws that it enforces, and annually publishes those statistics on a state-by-state basis.The EEOC count includes charges under Title VII, which prohibits discrimination on the basis of sex, race, color, religion and national origin, as well as charges under other federal discrimination laws such as the Americans with Disabilities Act, the Age Discrimination in Employment Act, and the Genetic Information Nondiscrimination Act. 

The EEOC’s most recent data for fiscal year 2014 (Oct. 1, 2013 through Sept. 30, 2014) shows that the federal discrimination charges for Wyoming received by that agency track the Labor Standards Division’s statistics, with retaliation charges leading the list. With a total of 69 discrimination charges filed with the EEOC by Wyoming workers in FY2014, here are the numbers by type:

Type

No. of Charges

Percentage of Total Charges

Retaliation

30

43.5%

Sex

29

42%

Disability

25

36.2%

Age

20

29%

Race

14

20.3%

National Origin

  6

  8.7%

Color

  4

  5.8%

Equal Pay Act

  3

  4.3%

Religion

  2

  2.9%

Wyoming employers received significantly more sex discrimination charges in 2014 than compared to 2013. The percentage of sex discrimination charges filed with the EEOC went up from 29.2% in FY 2013 to 42% in FY2014. Retaliation charges topped the list in both FY2013 and FY2014. The full list of EEOC charge receipts for Wyoming for the last five years may be viewed on the EEOC’s website at  http://www1.eeoc.gov/eeoc/statistics/enforcement/charges_by_state.cfm#centercol

Lessons Learned 

The charge statistics from the Wyoming Labor Standards Office and the EEOC reflect discrimination complaints filed by applicants and employees, not cases in which discrimination was determined to exist. Even so, the charge numbers for Wyoming suggest a number of action items for employers who want to avoid being included in next year’s statistics. 

First, retaliation gets a lot less attention from employers than it should, as these numbers show.  Whenever an employee complains about something at work that implicates a statutory right, like the right to be free from discrimination or harassment, or requests an accommodation or FMLA leave, the employee has engaged in protected activity. Most discrimination laws prohibit adverse actions because an employee has engaged in protected activity. And, it makes little difference whether the employee’s underlying complaint or request was valid – the employee is still protected against retaliation. 

Employers need a strong, stand-alone anti-retaliation policy, not just a couple of sentences at the end of the policy prohibiting discrimination. Employers also need to train supervisors and managers about the significance of employee complaints, and how the law protects employees. And careful consideration should be given to any adverse employment action for an employee who has opposed discrimination in the workplace, been interviewed as part of an investigation, or participated in a discrimination proceeding. 

Second, the prevalence of sex discrimination charges, which includes harassment charges, suggests that employers should review and update their discrimination and harassment policies, and continue periodic harassment prevention training. A strong harassment prevention policy, with understandable definitions and examples and multiple reporting options, is usually the best defense against a charge of sexual harassment. Of course, any observed or reported harassment must be investigated and any behavior which violates your policies must be stopped. 

Finally, adopt a policy that guides employees who wish to request an accommodation, and train supervisors how to recognize employee requests that could be interpreted as a request for accommodation. Once a request is made, follow a thorough interactive process to explore reasonable accommodations that do not place an undue burden on your organization but will allow the person to perform their job. Only when you are absolutely sure that no reasonable accommodation is available should you terminate a disabled employee. 

These action items will go a long way toward keeping you from becoming a statistic!

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March 13, 2014

Harassment Training for Supervisors is Key in Minimizing Risk

By Mark Wiletsky 

Most employers today have policies prohibiting harassment.  But if your supervisors and employees are not trained on those policies, and if harassment is allowed to occur, your organization could face significant liability.  

Female Bailiff Alleges Egregious Sexual Harassment By Her Supervisor 

Camille Kramer was employed as a jailor and later as a bailiff by the Wasatch County Sheriff’s Department.  While working at the jail, male co-workers allegedly made offensive comments about Kramer’s breasts, she was subjected to sexually explicit materials on work computers and had to listen to graphic sexual conversations.  Kramer complained to Sheriff Kenneth Van Wagoner, the head of the Sheriff’s Department.  Sheriff Van Wagoner said he’d “take care of it” and proceeded to call a staff meeting at which he used Kramer as a volunteer to act out the exact harassing scenarios that she had reported to him.  Van Wagoner told the group: “[t]hat’s harassment. Don’t do it.”  When the harassment got worse after the meeting, Kramer complained again to the Sheriff, who told her she might want to avoid that area. 

Kramer transferred to the courthouse to work as a bailiff.  Sergeant Rick Benson, also a bailiff, supervised both Kramer and one other bailiff. According to Kramer, Benson subjected Kramer to a campaign of sexual harassment and sexual assault that ranged from demanding foot rubs to groping and rape.  Kramer did not report Benson’s conduct to the Sheriff because Benson threatened her job if she said anything and she believed nothing would be done about it anyway. 

Later, Kramer told female co-workers about the rape and assault. She also told them that she was having a consensual affair with another man and was pregnant from that relationship.  Sheriff Van Wagoner found out about Benson’s sexual assault of Kramer and her pregnancy from one of Kramer’s co-workers.  He assigned a detective who was not trained in human resources or in conducting sexual harassment investigations to look into the misconduct.  The detective focused his investigation exclusively on finding out who fathered Kramer’s baby, not on Benson’s conduct.  When it was learned that Kramer was involved with a married county firefighter, the detective urged Kramer to resign and Kramer was disciplined with her certification suspended for six months for “actions unbecoming an officer.”  Although the Sheriff decided to terminate Benson, Benson resigned before that could happen.  

Benson directly supervised Kramer’s work as a bailiff.  He wrote her performance evaluations, which could cause her to be promoted, demoted or fired.  He could create a corrective action plan for her which might include transfer, reassignment or separation, if he deemed her performance was substandard. At all times, however, the Sheriff was the final decision-maker and the only person who had the actual authority to take tangible employment actions against Kramer. 

Kramer sued the County and the Sheriff for sexual harassment in violation of Title VII, among other claims.  The district court granted summary judgment to the County, holding that because Benson did not have the actual authority to unilaterally fire Kramer, the County could not be vicariously liable for Benson’s conduct.  It also ruled that supervisor status could not be based on Benson having apparent authority over Kramer because no reasonable juror could find that Kramer reasonably believed that Benson had the power to fire her.  On appeal, the Tenth Circuit Court of Appeals reversed the grant of summary judgment in favor of the County and remanded the case to the trial court for further proceedings. Kramer v. Wasatch Cty. Sheriff's Office, No. 12-4058 (10th Cir. Feb. 25, 2014).

Delegation of Power and Apparent Authority 

The Tenth Circuit pointed to wording in the Supreme Court’s recent case, Vance v. Ball State, 570 U.S. ___ (2013), to determine whether the County could be vicariously liable for Benson’s conduct.   Vance held that a “supervisor” for purposes of determining employer liability for workplace harassment under Title VII includes only those individuals who have the authority to take tangible employment actions against the victim.  Although that seemed like a bright-line test, the Tenth Circuit stated that if Benson had or appeared to have the power to take or substantially influence tangible employment actions or used the threat of taking such actions to subject Kramer to a hostile work environment, then the County could be vicariously liable for Benson’s severe or pervasive sexual harassment.  Because the Court found sufficient evidence in the record that raised genuine issues of fact as to whether the Sheriff effectively delegated to Benson the power to cause tangible employment actions by relying on Benson’s recommendations and performance evaluations when making decisions regarding firing, promotion, demotion and reassignment, the Court reversed the grant of summary judgment to the County.  The Court stated that even if the Sheriff took some independent analysis when considering input from Benson on employment decisions, Benson could qualify as a supervisor if his recommendations were among the proximate causes of the Sheriff’s decision-making.  The Court also found that there was evidence to suggest that Kramer reasonably believed that Benson had the power to take tangible employment actions against her meaning Benson qualified as a supervisor under apparent authority principles.  

No Tangible Employment Actions 

If Benson is a supervisor under the definition established in Vance, the County would be strictly liable for Benson’s harassment if it resulted in a tangible employment action.  Kramer asserted that four actions constituted tangible employment actions.  First, she argued that Benson’s rape was a tangible employment action.  The Court disagreed, stating that while the rape was inarguably a severe form of sexual harassment, Benson did not commit the rape in an official company action.  Next, Kramer asserted that Benson prepared a negative performance evaluation of her and argued that was a tangible employment action.  However, Benson improved the evaluation after speaking with Kramer and before submitting it to the Sheriff, so even though the threatened poor evaluation contributed to a hostile work environment, it did not constitute a tangible employment action.  The Court similarly rejected the final two alleged employment actions, a denial of leave time and assigning Kramer to an unfavorable duty that denied her the training needed for a promotion.  The Court found that the loss of one day’s leave time was not a “significant” change in Kramer’s benefits and the assignment to an unfavorable duty did not have a deleterious economic consequence for Kramer or reduce her opportunity for advancement.  Finding that Kramer did not suffer a tangible employment action, the Court remanded for consideration of whether the County established the Faragher/Ellerth defense. 

Teachable Moments from the Tenth Circuit 

The Court’s thorough discussion of Benson’s conduct and what the Sheriff did/did not do when he learned of potential misconduct reveals many teachable moments for employers.  First and foremost, make sure to train your supervisors and employees on prohibited forms of harassment, and how important it is to promptly and appropriately address issues when they arise.  For example, when an employee reports harassing behavior, as Kramer did when she first worked at the jail, take it seriously.  Do not simply tell workers to “stop it” or tell the person who complained to “avoid the area” or stay away from the perpetrators.  Make sure that the person conducting the investigation is trained in workplace harassment investigations.  Do not focus the investigation solely on the potential wrongdoing of the complaining party, as the detective did when trying to determine the father of Kramer’s baby.  Talk to all parties implicated in the misconduct, including any witnesses who may have knowledge of the hostile work environment.  If the investigation reveals harassing behavior, take immediate steps to correct it and prevent it from happening again.  Follow up with the person who reported it to make certain your corrective actions are effective and that no further incidents have occurred. And finally, do not retaliate against the complaining employee.  Learning from these missteps will go along way in minimizing your risk of harassment liability.

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August 12, 2013

EEOC Slapped with Order to Pay $4.6 Million for Pursuing Unreasonable and Groundless Discrimination Claims

By Mark Wiletsky 

240px-US-EEOC-Seal_svgWhen a former employee sues for discrimination or retaliation, the employer generally is unable to recover its fees or costs for defending the lawsuit, even if the employer prevails.  That was not the case, however, in a recent class action brought by the agency tasked with enforcing federal anti-discrimination laws, the Equal Employment Opportunity Commission (EEOC).  A federal court recently slammed the EEOC with over $4.6 million in attorneys’ fees, costs and out-of-pocket expenses after finding that the EEOC’s pattern or practice class action claim and 153 of the individual discrimination claims were unreasonable or groundless.  EEOC v. CRST Van Expedited, Inc., No. 07cv95 (N.D. Iowa, August 1, 2013).

 EEOC Sued Employer Alleging Sexual Harassment 

In September 2007, the EEOC filed a lawsuit against trucking company, CRST Van Expedited, Inc. (CRST) alleging that the company’s lead drivers and team drivers subjected female employees to sexual harassment and created a sexually hostile environment in violation of Title VII.  The EEOC filed its action on behalf of employee Monika Starke and a class of similarly situated female employees.   

After almost a year of discovery in the case, the EEOC was pressed to identify the total number of harmed individuals making up the purported class.  In October 2008, the EEOC identified 270 allegedly aggrieved female employees.  When the EEOC failed to make all of the individuals available for deposition by a court-ordered deadline, the District Court barred the EEOC from pursuing claims on behalf of those 99 individuals who were not deposed.

CRST filed multiple motions for summary judgment to get the remaining claims dismissed before trial.  First, CRST succeeded in getting the EEOC’s pattern or practice claim dismissed, which meant that the EEOC was left to pursue harassment claims only on behalf of individual employees. CRST then hammered away at all of the individual claims and succeeded in getting them all dismissed for a multitude of reasons, ranging from lack of evidence that some individuals had suffered severe or pervasive harassment to some individuals not reporting any harassment to the company.  Significantly, the Court dismissed 67 of the individual claims because the EEOC had failed to exhaust administrative prerequisites by failing to investigate or attempt conciliation of the claims.  Having dismissed all claims against CRST, the District Court found that CRST was the prevailing party and was entitled to recover its attorneys’ fees and costs, which exceeded $4.5 million.

EEOC Appeals and Keeps Two Claims Alive 

The EEOC appealed the dismissal of 107 of the claims to the Eighth Circuit Court of Appeals.  The Eighth Circuit reversed the dismissal of the claims on behalf of two female employees and consequently found that CRST was no longer the prevailing party entitled to recover its attorneys’ fees and costs.  The case was sent back to the District Court for continuation of those two claims. 

District Court Awards Millions in Attorneys’ Fees, Costs and Expenses 

After the case was sent back to the District Court, the EEOC voluntarily dismissed one of the two remaining claims because it had failed to exhaust the administrative prerequisites as to her claim.  CRST agreed to settle the remaining claim for $50,000 and the parties asked the Court to dismiss the case in its entirety as a result of the settlement.  CRST then asked to recover its attorneys’ fees, costs and expenses for the claims on which it prevailed. 

In order to recover its attorneys’ fees, costs and expenses, CRST needed to show that it was the prevailing party for purposes of Title VII and that the EEOC’s claims were frivolous, unreasonable, or without foundation.  The Court ruled that CRST was the prevailing party on the EEOC’s pattern or practice claim and on 153 of the EEOC’s individual claims.  CRST was not the prevailing party, however, for the claim it settled, for the three claims withdrawn by the EEOC and for 98 claims that the Court dismissed as a discovery sanction against the EEOC.  The Court then ruled that the EEOC’s failure to exhaust Title VII administrative prerequisites of investigation and conciliation for 67 of the individual claims was unreasonable.  It further ruled that the EEOC’s pattern or practice claim was unreasonable as it was based only on anecdotal evidence.  In total, the Court found that 153 of the individual claims as well as the pattern or practice claim were unreasonable or groundless.   

After discounting the total amount of CRST’s attorneys’ fees, costs and out-of-pocket expenses to reflect those claims for which CRST was not the prevailing party, the Court ordered the EEOC to pay CRST $4,694,442.  This award represented $4,189,296 in CRST’s attorneys’ fees, $91,758 in costs and $413,387 in out-of-pocket expenses for expert witness fees, travel expenses, delivery fees, and similar expenses. 

While the EEOC performs an important function and pursues meritorious cases, the case against CRST shows that employers can and should fight back when the EEOC brings a frivolous case.  Significantly, this is not the first time a court has awarded fees against the EEOC or rejected its claims.  Last year, the Tenth Circuit (which covers Colorado) slapped the EEOC with attorneys’ fees and costs in EEOC v. TriCore Reference Laboratories, No. 11-CV-2096 (10th Cir. 2012), affirmed summary judgment against the EEOC in EEOC v. The Picture People, Inc., No. 11-CV-1306 (10th Cir. 2012), and the court affirmed a district court’s decision that the EEOC’s administrative subpoena was overbroad in EEOC v. Burlington Northern Santa Fe Railroad.  We also recently discussed a letter sent by nine state Attorney Generals, in which they criticized the EEOC’s lawsuits and position concerning employers’ ability to use background checks to screen employees with a criminal record.  Hopefully, these losses, fee awards, and criticisms will cause the EEOC to more thoroughly evaluate which cases have merit before subjecting employers to the high cost and aggravation of defending meritless claims.


Disclaimer: This article is designed to provide general information on pertinent legal topics. The statements made are provided for educational purposes only. They do not constitute legal advice and are not intended to create an attorney-client relationship between you and Holland & Hart LLP. If you have specific questions as to the application of the law to your activities, you should seek the advice of your legal counsel.


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June 26, 2013

Employers Benefit From Supreme Court Ruling On Title VII Retaliation Claims

By Jude Biggs 

In a favorable ruling for employers, on June 24 the U.S. Supreme Court held that a retaliation claim under Title VII of the Civil Rights Act of 1964 requires an employee to show the employer’s desire to retaliate was the “but-for” cause of the challenged employment action.  University of Texas Southwestern Medical Center v. Nassar, No. 12-484 (U.S. June 24, 2013).  This establishes a different causation standard for retaliation claims than is required for underlying Title VII discrimination claims, which only require an employee to show the motive to discriminate was one of the employer’s motives in making an adverse decision.  Although cumbersome to have two standards, the decision is good news for employers, as often a jury will not find any discrimination by an employer, but may find retaliation after an employee speaks up about alleged discrimination.  Making it more difficult to prevail on a retaliation claim will, hopefully, encourage plaintiffs to bring fewer cases or resolve them earlier than going through an expensive trial.  

Employee Must Prove Employer Would Not Have Taken Action But For an Improper Motive 

In a 5-4 decision, the Supreme Court ruled a plaintiff making a retaliation claim under Title VII must establish that the employer would not have taken the alleged adverse employment action but for the plaintiff having engaged in protected activity.  Protected activity that may trigger a retaliation claim includes the employee opposing, complaining of or participating in a proceeding about unlawful discrimination in the workplace.  Through this ruling, the Court instructs that retaliation claims should fail if an employer had other reasons or motivations – singly or together — that caused the employer to take the adverse action (even if one other factor was retaliatory in nature).   In less legal terms, the employer wins if it can show its non-retaliatory reasons caused it to make the decision, even if a small portion of the decision was based on retaliation against the employee for engaging in protected conduct. 

Justice Kennedy, writing for the majority which included Justices Roberts, Scalia, Thomas and Alito, stated that the text of Title VII’s anti-retaliation provision appears in a different section of the law from the provision that prohibits discrimination based on race, color, religion, sex or national origin.  When Congress inserted the less rigorous “motivating factor” standard for discrimination cases in 1991, it could have inserted that standard into the anti-retaliation provision.  In choosing to omit it, Congress deliberately concluded that retaliation claims are to be treated differently and retaliation is unlawful only when the employer takes adverse action against an employee “because” of their protected activity.  The Court pointed to its interpretation of the Age Discrimination in Employment Act of 1967 in Gross v. FBL Financial Services, Inc. to require “but for” causation for retaliation claims. 

The Court also stated that this causation standard is essential to the fair and responsible allocation of judicial resources.  Recognizing that retaliation claims have been on the rise, the Court recognized that lessening the causation standard could contribute to the filing of frivolous claims, diverting resources from employers, agencies and courts in other efforts to fight workplace harassment. 

Dissent Urges Congressional Action 

Justices Ginsburg, Breyer, Sotomayor and Kagan dissented, alleging that fear of retaliation is the leading reason why employees do not speak up about discrimination in the workplace.  Because Title VII plaintiffs often have been subjected to both discrimination and retaliation, they now will have to litigate their claims under two standards:  (1) discrimination under the “motivating factor” test which requires a plaintiff to show only that a prohibited characteristic was a motivating factor in the employer’s adverse action, even if other factors also motivated the action; and (2) retaliation under the “but for” standard which requires a plaintiff to show that the employer would not have taken the adverse action but for a retaliatory motive.  The dissent concluded that this decision is at odds with a line of previous decisions that recognize retaliation claims are inextricably bound up with an underlying discrimination claim.  Justice Ginsburg, writing the dissenting opinion, stated “the Court appears driven by a zeal to reduce the number of retaliation claims filed against employers.” Calling the majority decision “misguided,” the dissent urges Congress to enact another Civil Rights Restoration Act to counter and remedy the injustice done by the majority opinion. 

Employers May Face Fewer Retaliation Claims or At Least, Fewer Successful Claims 

In practice, it is questionable how relevant the causation standard may be to potential litigants of retaliation claims.  Employees believing they have been wronged after they complain about discrimination will likely still file retaliation claims, no matter what causation standard applies.   Juries often will conclude retaliation occurred based on a general “fairness” standard.  However, employers may be able to resolve such claims at the summary judgment stage (when a court decides a claim does not merit a trial), because proof of other factors that contributed to the adverse employment decision will defeat the retaliation claim. 


Disclaimer:This article is designed to provide general information on pertinent legal topics. The statements made are provided for educational purposes only. They do not constitute legal advice and are not intended to create an attorney-client relationship between you and Holland & Hart LLP. If you have specific questions as to the application of the law to your activities, you should seek the advice of your legal counsel.


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June 25, 2013

Supreme Court Limits Definition of Supervisor for Employer Liability in Workplace Harassment Claims

By Emily Hobbs-Wright 

In a huge win for employers, the U.S. Supreme Court today decided that for purposes of determining employer liability for Title VII harassment cases, a “supervisor” is limited to those who are empowered by the employer to take tangible employment actions against the victim.  Vance v. Ball State Univ., No. 11-556 (U.S. June 24, 2013).  This means that employees who oversee the daily activities of other employees, but do not have the power to discipline, fire, promote, transfer or take other actions against an employee, are not considered “supervisors” in workplace harassment cases under Title VII.   

In drawing a sharp line between co-workers and supervisors, the Supreme Court adopted a clear standard that parties and reviewing courts can apply early in a case in order to determine which side has the burden of proof in Title VII harassment litigation.

Supervisor vs. Co-Worker as Harasser – Why It Matters 

Determining employer liability for harassment under Title VII of the Civil Rights Act of 1964 depends on whether the alleged harasser is a “supervisor” or a “co-worker” of the individual being harassed.  If the harasser is a co-worker, the employer will be liable for the harassing behavior only if the complainant can show that the employer was negligent, meaning that the employer knew or should have known of the conduct and failed to take immediate and appropriate corrective action.  See 29 CFR § 1604.11(d).   

If the harasser is a supervisor, however, the test for employer liability changes dramatically.  If the harassing supervisor caused a tangible employment action such as firing, demoting or reducing the complainant’s pay, the employer will be automatically liable for the harassment.  If there was no tangible employment action, the employer may still be liable, unless it can meet a two-pronged affirmative defense known as the Faragher/Ellerth defense.  

In order to establish the Faragher/Ellerth defense, outlined by the Supreme Court in the companion cases of Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 24 U.S. 742 (1998), an employer must show: (1) that the employer exercised reasonable care to prevent and promptly correct the harassing behavior; and (2) the plaintiff-employee unreasonably failed to take advantage of preventative or corrective measures established by the employer or to avoid harm otherwise.   

The key difference between cases alleging harassment by a co-worker and a supervisor is the burden of proof.  With co-worker harassment, the plaintiff-employee bears the burden of demonstrating employer negligence.  When trying to avoid liability for supervisor harassment, however, the employer bears the burden of establishing the Faragher/Ellerth affirmative defense.  The higher hurdle that must be met by employers when litigating supervisor harassment raises the opportunity for the plaintiff-employee to recover damages for harassment in the workplace.  Consequently, an important issue in a harassment case is whether the alleged harasser is a supervisor or a co-worker.   

Supreme Court Resolves Split in the Circuits on Definition of “Supervisor”

Lower courts have disagreed on the test for deciding whether an alleged harasser is a “supervisor” or merely a co-worker.  Some federal appellate courts, including the First, Seventh and Eighth Circuits, have ruled that an employee is not a supervisor under Title VII unless he or she has the power to hire, fire, demote, promote, transfer, or discipline the victim.  Other circuits, including the Second and Fourth Circuits, have followed the more expanded approach urged by the Equal Employment Opportunity Commission (EEOC), which applies “supervisor” status to those who have the ability to exercise significant direction over another employee’s daily work activities.   

In a 5-4 decision, the Supreme Court resolved this split in authority by holding that an employer may be vicariously liable for an employee’s unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim, that is, to effect a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.  Calling the EEOC’s definition of supervisor “nebulous,” the Court stated that it was not sufficient to deem an employee a “supervisor” based on his or her ability to direct another employee’s tasks.  The Court noted that the EEOC Guidance that looks at the number (and perhaps the importance) of the tasks in question would be a “standard of remarkable ambiguity.”  Relying on the Faragher and Ellerth decisions, the Court stated that a supervisor is instead empowered by the company as a distinct class of agent that may make economic decisions affecting other employees under his or her control. 

Bright Line Between Co-Workers and Supervisors Will Aid Employers Facing Harassment Claims 

The bright line test that the Court adopted for determining who is deemed a “supervisor” in Title VII cases eliminates murkiness and provides a clear test that reviewing courts can easily apply. The Court noted that it typically will be known before litigation is commenced whether an alleged harasser was a supervisor, and if not, it will become clear to both sides after discovery.  The Court goes on to say “once this is known, the parties will be in a position to assess the strength of a case and to explore the possibility of resolving the dispute.  Where this does not occur, supervisor status will generally be capable of resolution at summary judgment.”  The Court clearly wanted employers to be able to get the supervisor issue resolved early in a lawsuit so that both sides will know who bears the burden of proof and can pursue early resolution of the case based on the strength of the evidence. 

Employees Still Protected, but Must Prove Company Negligence 

The Court’s majority, which includes Justices Alito, Roberts, Scalia, Kennedy and Thomas, states that employees who face harassment by co-workers who possess the authority to inflict psychological injury by assigning unpleasant tasks or by altering the work environment in objectionable ways will still be protected under Title VII.  The Court states that such victims will be able to prevail “simply by showing that the employer was negligent in permitting this harassment to occur, and the jury should be instructed that the nature and degree of authority wielded by the harasser is an important factor to be considered in determining whether the employer was negligent.”  According to the majority, the fact that harassing co-workers may possess varying degrees of authority over daily tasks will not be a problem under the negligence standard “which is thought to provide adequate protection for tort plaintiffs in many other situations.” 

Dissent Would Follow EEOC’s Guidance and Extend “Supervisor” Status Based on Authority to Direct an Employee’s Daily Activities 

Justice Ginsburg, joined by Justices Breyer, Sotomayor and Kagan, wrote a lengthy dissent opining that the majority’s rule diminishes the force of Faragher andEllerth, ignores the reality of the current workplace and strays from the objective of Title VII in preventing discrimination in the workplace.  The dissent favors the EEOC’s Guidance, believing that employees who direct subordinates’ daily work are supervisors.  Justice Ginsburg wrote that although one can walk away from a fellow employee’s harassment, “[a] supervisor’s slings and arrows, however, are not so easily avoided.”  The dissent recites numerous cases in which a person vested with authority to control the conditions of a subordinate’s daily work life used his position to aid his harassment, and then points out that in none of the cases would the majority’s “severely confined definition of supervisor yield vicarious liability for the employer.”  The dissent concludes that the majority decision embraces a position that relieves scores of employers of responsibility for the behavior of the supervisors they employ.  

Conclusion – Victim Must Prove Employer Negligence When Harassed by a Non-Supervisor 

The Vance opinion means that employees alleging harassment by another employee who does not have the power to hire, fire, promote, transfer or discipline them, bear the burden of proving the employer’s negligence in order for the employer to be liable for the harassment.  This means the alleged victim must prove that the employer knew or should have known of the conduct and failed to take immediate and appropriate corrective action.


Disclaimer: This article is designed to provide general information on pertinent legal topics. The statements made are provided for educational purposes only. They do not constitute legal advice and are not intended to create an attorney-client relationship between you and Holland & Hart LLP. If you have specific questions as to the application of the law to your activities, you should seek the advice of your legal counsel.


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May 7, 2013

Small Colorado Employers Face Higher Damages for Discrimination Claims

By Mark Wiletsky and Steve Gutierrez

Small businesses beware: your employees now have more incentive to sue you.  As of January 1, 2015, employees can recover compensatory and punitive damages for employment discrimination claims against businesses that employ between one to fourteen people under Colorado’s Job Protection and Civil Rights Enforcement Act of 2013, signed into law by Governor John Hickenlooper on Monday, May 6, 2013.  But don’t despair.  By taking some proactive steps now, businesses can minimize their exposure to potential claims. 

Increased Exposure for Small Employers 

Colorado’s new anti-discrimination law changes the landscape for small employers by allowing compensatory and punitive damages against Colorado’s small businesses (with 1-14 employees), along with attorneys’ fees and costs to the employee if he or she prevails, back pay, front pay, interest, and other potential relief.  Thankfully, the new Colorado law contains some safeguards against outrageous damage awards that would likely put small employers out of business.  For businesses with 1-4 employees, compensatory and punitive damages are capped at $10,000.  For businesses with 5-15 employees, such damages are capped at $25,000.  Businesses with greater than 15 employees are subject to the existing damages caps found in the federal anti-discrimination laws. 

The availability of these damages to employees of businesses with fewer than 15 employees will likely result in more discrimination cases filed in Colorado against small businesses, significantly raising the potential exposure for small business owners.  That is especially true given that such claims may be filed in state court, which is often viewed by attorneys representing employees as a more favorable forum for such claims. 

Age Discrimination No Longer Cut Off at Age 70 

The Job Protection and Civil Rights Enforcement Act of 2013 also eliminates the age 70 cutoff for age discrimination claims brought under Colorado law.  This brings the state law into line with the federal Age Discrimination in Employment Act which does not have an upper age limit.  Consequently, employees age 40 and older are protected from employment discrimination under both state and federal law. 

Good Faith Efforts May Avoid Punitive Damages 

Under the new Colorado law, employers will not be subject to punitive damages if they can demonstrate good-faith efforts to prevent discriminatory and unfair employment practices in the workplace.  In addition, no punitive damages are available in a lawsuit involving a claim of failure to make a reasonable accommodation for a disability if the employer can demonstrate good-faith efforts to identify and make a reasonable accommodation that would provide the disabled employee with an equally effective opportunity and would not cause an undue hardship on the employer’s operation.  Small businesses should begin those good-faith efforts now so that policies and procedures to prevent and respond to discrimination are in place when the law goes into effect. 

Steps Small Businesses Should Take to Minimize Risk 

Unfortunately for small businesses, the mere threat of a lawsuit, however meritless, may stretch tight resources to the breaking point.  That is why it is so important to take proactive measures now, which will help minimize the risk of such lawsuits.  Among other things, small businesses should:  

1)  Adopt and distribute policies that prohibit discrimination, harassment, and retaliation in the workplace.  Require new and existing employees to acknowledge their receipt of these policies, preferably on an annual basis. 

2)  Train supervisors, managers and employees.  Everyone in the workplace should be trained on your anti-discrimination policies and procedures with specialized training provided to supervisors and managers who must recognize harassment and discrimination and know what to do when they observe it or receive a complaint.  In small workplaces, dealing with complaints of discrimination or retaliation can be difficult.  Still, if you address it promptly and appropriately, you will be in a better position to avoid or defend against a claim. 

3)  Document performance issues.  We often see meritless lawsuits filed because legitimate performance concerns were not shared with the employee or appropriately documented.  If an employee has performance issues, be sure to get it in writing.  Focus on the problem, give concrete examples, and warn the employee that a failure to achieve immediate and sustained improvement may result in termination. 

4) Arbitration agreements. Consider whether it would be appropriate to have employees sign an arbitration agreement.  Such agreements take discrimination claims out of the civil court system, and generally allow for a more streamlined resolution.  However, arbitration is not necessarily cheaper than a court proceeding; in fact, in some cases it might cost more.  Be sure to consider all the benefits and burdens of arbitration before relying on such agreements.  And if you prefer arbitration, make sure your agreement complies with all applicable legal requirements.   

Essentially, small employers need the same policies and procedures to deal with discrimination as larger employers do, even though many smaller employers simply do not have the same resources.  Take the next 18 months before the law becomes effective to educate yourself, your supervisors and your employees on discrimination issues and take the steps that will help minimize your risk to the damages that will be available soon to aggrieved employees. 

January 11, 2013

NLRB Further Undermines Workplace Investigation Confidentiality

by Chris Chrisbens

Banner Health:  Blanket Confidentiality Violates NLRA Section 7

The National Labor Relations Board (NLRB) in July 2012 held that a blanket approach requiring confidentiality during all workplace investigations violates employees’ concerted activity rights under Section 7 of the National Labor Relations Act (NLRA).  Banner Health Systems and James A. Navarro.  In Banner,the NLRB said that at the outset of each investigation employers must carefully balance whether a confidentiality requirement truly is warranted under the specific circumstances, or whether it would unfairly impinge on employees Section 7 rights.  Only where a need for confidentiality outweighs Section 7 rights can confidentiality be required.  Regrettably, the NLRB’s analysis at least implied that the relevant factors weighing in favor of confidentiality are whether witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, or there is a need to prevent a cover up.  The NLRB provided no guidance as to whether or not any additional factors, or what other factors, might be important in justifying a confidentiality instruction.

In particular, the NLRB in Banner did not discuss overarching factors which generally warrant confidentiality in most workplace investigations, including encouraging witness and complainant participation. 

American Baptist:  Witness Statements Not Automatically Confidential

The NLRB recently took another step undermining investigation confidentiality by overruling a 34-year-old bright-line exception that witness statements generated during an employer’s investigation of employee misconduct need not be disclosed to the employee’s union. American Baptist Homes and Service Employees International Union.  The NLRB reasoned that witness statements are not fundamentally different from witness identities and job titles which must be disclosed, absent the employer’s proof of a countervailing need for confidentiality, pursuant to its general obligation to provide unions with relevant information necessary to perform union duties.  NLRB rejected the bright line in favor of the unpredictable balancing test applicable to witness identities and job titles:  whether substantial employer interests concerning confidentiality, witness coercion, harassment or
retaliation outweigh the union’s need for the information in the particular case.   Significantly, an employer’s policy and practice of keeping such investigation information confidential is not, alone, a substantial confidentiality interest. 

In contrast to Banner, the Board expressly rejected the argument that the witness statement exception is consistent with EEOC Guidelines and “protects the integrity of the arbitration process, protects employee witnesses who participate in workplace investigations from coercion and intimidation, and enables employers to conduct effective investigations into workplace misconduct.”  Likewise, although it acknowledged “the risk that employers or unions will intimidate or harass those who have given statements, or that witnesses will be reluctant to give statements for fear of disclosure,” the Board was not persuaded that a balancing test enhances those risks or discounts the EEOC Guidelines.  The “balancing test is designed to take into account any legitimate and substantial confidentiality interest that an employer may have, which would include concerns about witness intimidation or compliance with EEO guidelines.” 

It seems to this investigator, however, that the NLRB has grossly discounted the chilling effect a lack of confidentiality, or at least uncertainty about confidentiality, has on employees, both those who may be complainants and those who may have valuable information necessary to an investigation.  Employee witnesses and even complainants are often genuinely concerned about the effect a lack of
confidentiality may have on them and are inclined to selectively disclose information based on such concerns.  Moreover, witness statements are fundamentally different than identity and job title because they can reveal exactly what a witness has said, providing fodder for retaliation and intimidation, rather than just the fact that the person was a witness who provided unspecified information. 

Also significant to the NLRB’s holding on the facts of the American Baptist case was that only two
of three investigation witnesses were asked to provide investigation statements and specifically told that their statements would be kept confidential.  A third witness volunteered her statements and was never specifically assured of confidentiality, although she relied on her employer’s investigation confidentiality policy.  Because the third witness had not been specifically assured of confidentiality, NLRB ruled that her statements did not qualify as “witness statements” subject to the disclosure exception it prospectively overruled. 

Employers in Double-Bind?

These two rulings appear to put employers in a double-bind.  At the outset it is not often clear in what direction a workplace investigation will lead; what might happen during (or after) an investigation to trigger confidentiality concerns or retaliation; or on what particular grounds confidentiality might truly be necessary in retrospect.  That is at least in part exactly why a blanket approach to investigation confidentiality is important, necessary and has been the preferred practice encouraged by the EEOC’s Guidelines.  Moreover, an employer’s general policy of investigation confidentiality supports an employer’s complaint procedures by encouraging timely, legitimate complaints and fosters its ability to fulfill the duty to promptly investigate and address EEO and other legal issues. 

To the contrary, the Banner and American Baptist rulings suggest that at the outset of an investigation, employers must be able to particularly identify specific factors warranting confidentiality before it can assure complainants and witnesses that the investigation and their statements will be kept as confidential as practicable. Without that information the Banner ruling suggests that you cannot require investigation confidentiality without possibly impinging upon concerted activity rights.  And, according to American Baptist, without such an assurance of confidentiality prior to giving the statement, it may not qualify as a “witness statement” subject to protection from union disclosure. However, it is not always, or often, possible at the outset of the investigation to specifically identify such factors that could justify confidentiality.  Double-bind.  The mere possibility of confidentiality may be little consolation to employees genuinely concerned about confidentiality and reluctant to participate.  But, that appears to be the protection the NLRB now sees fit to afford employee statements.    

So, What Now? 

Certainly these rulings require employers to proceed cautiously and pay particular attention to and document confidentiality concerns and issues.  You may want to think about taking a number of steps to make a confidentiality requirement during an investigation more likely to pass NLRB muster, including:

  • Limiting confidentiality instructions to investigations of complaints and issues that implicate or are likely to implicate EEO or other legal issues or when investigation integrity is a particular concern;
  • Specifically considering and documenting why confidentiality is necessary to a particular investigation;
  • Asking complainants and witnesses to share any fact-based concerns regarding confidentiality, intimidation, retaliation or other concerns that could warrant confidentiality.  It is at times the case employees have generalized fears not supported by facts so investigators must probe for facts that might support such a concern;
  • Documenting and addressing instances of intimidation, harassment and other issues that might implicate and justify confidentiality concerns in future investigations;
  • Tailoring the confidentiality requirement to the specific subject matter of the investigation and matters discussed in investigatory interviews and statements while the investigation is ongoing;
  • Limiting the confidentiality instruction to employees who will or are likely to be interviewed during the investigation because they have personal knowledge of events or other directly relevant information;
  • Clarifying that the employer cannot guarantee confidentiality but that it will maintain confidentiality as practicable under the circumstances and as permitted by law;
  • Clarifying that the confidentiality restriction is not intended to prevent employees from addressing concerns with one another or with the employer; and
  • Explaining to witnesses that the purpose of the confidentiality restriction is to:
    • Preserve the integrity of the investigation process;
    • Encourage employees to speak up when they have a problem and give them confidence that they may speak the truth;
    • Uphold your anti-retaliation policy; and 
    • Allow you to conduct thorough and objective investigations which, in turn, allow you to effectively address employee complaints and concerns and resolve workplace conflict.

It also may be appropriate to forgo the threat of discipline for individuals who breach confidentiality.

Chris Chrisbens is the lead attorney for Holland & Hart’s Affirmative Action Planning and Office of Federal Contract Compliance Programs (OFCCP) service. He can be reached at fcchrisbens@hollandhart.com or 303-295-8193.