April 2007 Quick Clips

Cat Rape and Elephant Underwear, April 26, 2007

by Clifton R. Gray

I thought that title would get your attention. Cases alleging hostile work environment in violation of Title VII are rarely dull, and the facts alleged by the plaintiff, as described by the Seventh Circuit in its recent decision in Yunkis v. First Student, Inc, No. 06-3479 (7th Cir. filed March 28, 2007), are of no exception. Carla Yunkis worked as a part-time school bus driver for First Student, a private busing firm that numerous school districts contract with to provide school busing services for their students. She was fired by First Student "for undermining internal relations at the facility, and damaging the credibility of the facility's management, by her incessant complaining." Unsurprisingly, a lawsuit followed.

In her complaint, Yunkis alleged that a hostile work environment was created when, as she put it "all levels of personnel . . . show blatant disrespect for their marital vows, watch pornography, use foul language, tell vulgar jokes, . . . [and] gamble openly." Other, more specific occurrences were alleged, including that a coworker once gave an assistant manager a pair of red underwear made to look like the head of an elephant with a "sexually suggestive trunk," that a manager had once referred to a female bus driver (not Yunkis) as a "fat ass," and that this same manager once described an incident "in which his male cat 'raped' his female cat."

After summary judgment was granted for First Student, Yunkis appealed to the Seventh Circuit Court of Appeals. The Seventh Circuit, obviously growing tired of what can best be described as overly-sensitive employees bringing Title VII hostile work environment claims, affirmed the lower court's summary judgment ruling, resting its decision on its finding that many of the actions or comments complained of were not directed at Yunkis or her gender, and thus she was not within "the target area of the offending conduct." As the court explained, "if as in this case the charge is the creation of a working environment hostile to women, the conduct must be the kind that makes the workplace uncomfortable for women, as distinct from making it uncomfortable from cat lovers . . . for people offended by adultery, for gamblers, and for fastidious people, who abhor foul language." Yunkis's allegation that her manager also looked at pornographic websites on his computer and that this substantiated her hostile work environment claim was also shot down, with the court stating that "[i]t wasn't any of plaintiff's business what the manager was looking at on his computer. It is not as if pornographic pictures were exhibited on the walls of the workplace or e-mailed to the plaintiff. . . . The relation between the manager's watching pornography on his own screen and the plaintiff's working environment was almost as attenuated as if she had learned that he watches pornography on his computer at home." The last sentence of the court's opinion serves as a succinct summary of its attitude towards over-sensitive plaintiffs like Yunkis: "Title VII is not a code of civility."

Native American's Hostile Work Environment Claim Not Up To Standard, April 23, 2007

by Clifton R. Gray

Ronald Locklear, a member of the Lumbee Indian Tribe, worked as an electrician's helper for an electrician business in North Carolina. Every workday, the employees would meet at the main warehouse facility to load up to company vans for the day's work. This preparation period would generally last anywhere from fifteen minutes to half an hour and during this time the employees would joke around with each other and often refer to each other not by their actual names, but by nicknames. A couple of other employees of the business, Larry Miller and Woodrow Wilson (no, not that Woodrow Wilson!), decided that Locklear's nickname would be "Chief" on account of his Native American background. On other occasions, Locklear alleged that he was also referred to as "Injun Joe," "redskin," Big Indian," and half-breed" by these two employees. When Locklear complained to Miller and Wilson about the nicknames, they would tell him that they "didn't mean nothing by it."

One day, when Locklear was in earshot of owner Tim Ellison's office, he heard the Ellison say "Where is that damn Indian at?", referring to Locklear. Following this, Locklear quit after Ellison became upset with the entire work crew after certain work they performed was not up to city code and used profanity towards them. When Locklear complained about Ellison's use of profanity, he was told that if he didn't like it he could quit, which he did.

The EEOC, obviously believing that Locklear's claim of hostile work environment because of his race (Native American) was strong, took up representation on Locklear's behalf. The United States District Court for the Western District of North Carolina, however, held that Locklear's claim of hostile work environment did not meet the "severe and pervasive" standard required to prove a prima facie case of a racially hostile work environment. A major factor in this decision was the fact that Locklear, as an electrician's helper, worked in the construction industry. Courts will rightly not decide hostile work environment claims in a vacuum, but will consider the plaintiff's type of employment and the setting of that employment. In numerous cases, court grant considerably more leeway in hostile work environment claims arising out of employment in the construction industry, as male-to-male banter is often joking and many times crude. But if racial animus is not present in such comments, they will not evidence a hostile work environment. Finding that the nicknames given to Locklear were not motivated by racial animus, and that the worst of the comments ("damn stupid Indian") was used only once and therefore was a stray remark, the Court held that the allegations brought by the EEOC on behalf of Locklear did not rise to the level of "severe and pervasive" and granted the employer's motion for summary judgment. EEOC v. E & H Electrical Service, Inc., 100 FEP Cases 380 (W.D.N.C. filed March 19, 2007).

Isolation of Alleged Victim of Harassment Costs Employer $300,000, April 19, 2007

by Frank L. Kollman

Under most anti-discrimination laws, including Title VII of the Civil Rights Act of 1964, employees are protected from retaliation for making claims of discrimination, even if the discrimination did not occur. If the employee makes the claim in good faith, he or she cannot be punished for making the claim.

A male police officer in New York claimed that he was harassed by his female lieutenant, a claim that was later found to be without merit, and the police department assigned the officer to a location that isolated him from other police officers – an empty records room. The court found that the isolation was an adverse employment action, and confirmed an award of $300,000 in damages for retaliation. Marchisotto v. New York, No. 05 Civ. 2699 (S.D.N.Y., April 11, 2007).

This case illustrates the problem of dealing with claims of sexual harassment. Isolating the alleged victim from the source of harassment is typically considered an acceptable method of dealing with the problem. In doing so, however, employers must insure that the isolation cannot be considered punishment or be perceived as punishment.

Child Labor Law Changes Proposed, April 17, 2007

by Frank L. Kollman

The Department of Labor has issued proposed rules that would change the list of jobs younger workers can perform under the child labor provisions of the Fair Labor Standards Act. Under the Act, employees younger than 18 are not allowed to engage in hazardous activities as defined by regulation.

If your company currently employs underage workers, these changes could affect your operations. The rules are scheduled to be issued April 17, and a link to them will be added when they become available.

Maryland General Assembly Approves Living Wage, April 10, 2007

by Clifford B. Geiger

On April 9, 2007, Maryland’s General Assembly approved a bill that is likely to make Maryland the first state in the nation to require that certain employers pay a “living wage.” The law, once signed by the Governor, will apply to state contracts of $100,000 or more awarded on or after October 1, 2007. Employers will be required to pay employees who work on state contracts either $11.30 an hour or $8.50 an hour, depending on where the majority of services under the contract will be performed, as determined by the Commissioner of Labor and Industry. If the services are performed in Anne Arundel County, Baltimore City, Baltimore County, Howard County, Montgomery County, or Prince Georges County, the higher wage rate will apply. If the services are performed in any other county, the lower rate will apply. The wage rates will be adjusted annually in accordance with the Consumer Price Index.

There are some built in exceptions and offsets. For example, the living wage requirement will not apply to employees who are less than 18 years old. It also does will not apply to non-profit organizations or employers with 10 or fewer employees, provided the small employer does not have a state contract valued at $500,000 or more. With regard to offsets, if an employer commits to provide health insurance to an employee, the employer will be allowed to reduce the living wage rate by the hourly cost of the employer’s share of the employee’s health insurance premium.

The approved bill also contains recordkeeping and multi-lingual posting requirements for covered employers, an anti-retaliation provision, and detailed public and private enforcement mechanisms.

Holiday Pay In Iraq, April 6, 2007

by Pete S. Saucier

A correctional officer on assignment through the National Guard in Iraq claimed that he was entitled to holiday pay from his civilian employer for any holidays that occurred during his two year assignment. After all, he argued, the assignment was military leave, so he should receive pay as if he had been out sick. The claim was rejected by the United States Court of Appeals for the Federal Circuit.

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