Two Emerging Issues for Employers and Their Practitioners
By Chris Gantt-Sorenson, Haynsworth Sinkler Boyd, P.A.
The last several years in the employment-law arena have been energised with multi-faceted issues. This article details four lesser-known issues employers and their practitioners need to be aware of: an imminent ruling on Title VII protections for LGBTQQIA workers; OSHA’s use of drones for investigations and inspections; social media gaffes; and lingering retaliation liability.
Imminent Ruling on Whether Title VII Protections Extend to LGBTQQIA Workers
In October, the United States Supreme Court (SCOTUS) will, for the first time, consider the much-disputed issue of whether Title VII of the 1964 Civil Rights Act, 42 U.S.C. §2000e-2(a)(1), guarantees protections from workplace discrimination and harassment to employees on the basis of gender identity or sexual orientation. The matter is before the Court on three cases that the Court consolidated.1 Each case involves allegations by employees that they were terminated because of their sexual orientation or gender identity. Two of the three cases involve differing decisions among the federal appellate courts. SCOTUS consolidated a Second Circuit opinion, finding “sex” encompasses discrimination on the basis of “sexual orientation”, and an Eleventh Circuit opinion, finding it does not. The third case arises from termination of a transgender employee after she announced she would begin wearing women’s clothing and is an appeal from the Sixth Circuit holding transgender falls within the protected status of “sex” under Title VII.
Although SCOTUS is reportedly non-partisan, today’s polarizing politics and the news reports around Supreme Court appointments suggest that the personal politics of the Justices will impact their decisions on these consolidated cases. Others think the SCOTUS may rule in line with those federal appellate circuits finding Title VII discrimination does not include gender identity or sexual orientation based on the recent decisions involving bakeries who refused to prepare wedding cakes for same-sex couples on the grounds of religious freedom. Employers should understand that SCOTUS has already determined sex discrimination prohibited by Title VII includes same-sex harassment or employment decisions based on failing to act within gender-based expectations in Oncale v Sundowner Offshore Serv., Inc., 523 U.S. 75 (1998) and Price Waterhouse v Hopkins, 490 U.S. 228 (1989), respectively. While SCOTUS recently determined religious freedom of retailers must be considered in conjunction with civil rights of patrons in two cases involving cake bakers who refused to make wedding cakes for gay couples, the section of civil rights law applicable to retailers, Title II, does not list “sex” as a protected class. Conversely Title VII, applicable to employers, specifically includes “sex” or “gender” as protected classes. The Court is comprised of different justices than those who rendered prior related decisions. The Court’s position on these three cases will set the standard going forward for employers and those employees seeking Title VII protections as they apply to those employees in the LGBTQQIA community.
Practitioners and human resource professionals should not wait for the Court’s ruling to determine how to address any such issues because any charges brought under Title VII are first adjudicated by the Equal Employment Opportunity Commission (EEOC). The EEOC interprets gender identity and sexual orientation as part of “sex” under Title VII, and has already awarded significant monetary relief in voluntary resolutions involving LGBT Charges since it began collecting data in 2013.2 Therefore, employers should ensure that they are treating discrimination or harassment on the basis of sexual orientation or gender identity as discriminatory conduct in violation of Title VII and consult their federal jurisdiction for guidance before acting.
What Does Employment Law Have to Do with Drones?
In 2018, the Occupational Safety and Health Administration (OSHA) reportedly used drones to conduct at least nine inspections of employer facilities after receiving permission from the companies’ management.3 This followed OSHA’s issuance on May 18, 2018, of a memorandum to its staff that formalised the use of drones for OSHA inspections, required designation of a staff member to serve as an unmanned aircraft program manager, established parameters OSHA must follow when using drones for inspections, and revealed OSHA’s exploration of operating drones for inspections without having to obtain consent through the use of a blanket public Certificate of Waiver from the FAA to OSHA.4
Employers are put in an untenable position of either granting OSHA permission to conduct flyovers or refusing the use of drones for inspections. Employers and their practitioners involved in representing employers before federal agencies are certainly familiar with the difficulty posed by any legitimate opposition to any tool used in an investigation.
As with any federal agency investigation, employers are well-served to seek advice from legal counsel before complying with any requests, no matter how urgently or amiably the investigator from that agency approaches the employer, all while assuring the investigator of its desire to cooperate fully.
Authorised Social Media Can Create Legal Nightmares for Employers!
While employers are not permitted to render any employment decisions on the basis of an employee’s personal use of social media, except in narrow instances, without running afoul of the National Labor Relations Act, employers have every right to develop policies and procedures for, and monitor the postings of, those employees authorised to engage in social media on behalf of the company. What’s more, employers who fail to establish policies and procedures may find themselves embroiled in unwanted and costly federal agency investigations or employment claims.
Horror stories from the employment world are best for conveying employment law lessons. One such example illustrates the need for strict policies. Many employers recruit candidates online and have employees assigned to this function or enlist the assistance of outside recruiters for this task. Employers also recruit on a number of different online job boards. A tech company advertised a position on LinkedIn, seeking candidates that are “preferably Caucasian”.5
Even though the post was eventually removed, it was not before a number of people saw and commented on it. It should be anticipated that employees might refer to that post as evidence of a discriminatory workplace in any future charges of discrimination brought before the EEOC against the employer.
Employers permitting authorised use of social networking should take these steps to minimise the risk when an employee is permitted to engage in authorised social networking on behalf of the company:
- Employers must clearly identify which employees or departments are authorised to post on company social media accounts.
- Companies should identify a manager who is tasked with monitoring authorised activity on the company’s social media accounts and who has the authority to approve all postings.
- Social media policies should follow the company’s purpose of using social media accounts, whether it is to market products and services, advertise jobs, announce breaking news, respond to negative publicity, or otherwise interact with the public.
- The authorised-use policy should include prohibitions of infringing on third-party property rights, whether by copyrights, trademarks, or plagiarism, and prohibit defaming employees, clients, vendors, or competitors.
- Make sure the policy clearly outlines any disciplinary actions for violations of the authorised-user policy.
- Ensure employees are properly trained on the authorised-use policy.
- Require designated employees to sign an authorised-user agreement, housed in either a standalone document or with other confidentiality or trade secrets agreements.
- Ensure the agreement safeguards the interests of the company and establishes that the company owns the social media accounts.
Although not directly tied to social media, the next horror story does convey the potential for data breaches through a company’s electronic systems. An employer discovered an employee sent a spreadsheet that identified 36,000 employees by name, date of birth, and Social Security number to his spouse for help with formatting, an error requiring the employer to self-report the data breach to various public agencies.6 The employer reported that the employee did not realise the spreadsheet contained sensitive information because it was contained in hidden columns. Employers should train all employees who have access to confidential and sensitive employer, consumer, and company data on issues of privacy and security law, data breaches, and legal ramifications of the violations. Employers should also limit those involved in any functions involving handling sensitive data to a narrow group of employees and implement extra security measures for any such information in their databases.
Liability for Retaliation Can Arise Long After Employment Ends
A recent Pennsylvania case provides a good reminder that retaliation claims can arise long after an employee is no longer employed and that employers need to keep potential retaliation claims in mind when responding to reference checks on former employees. In Leese v Commonwealth of Pennsylvania7, the plaintiff, a former state agency employee, made an internal complaint of sexual harassment against a male superior while she was employed by the state agency. During her employment, she filed a Charge of Discrimination before the EEOC and resolved that charge by entering into a settlement agreement that included, among other things, that she would resign and would not seek employment with specific state agencies.
The plaintiff applied for several state government and private sector positions but was not hired. She filed a federal lawsuit alleging retaliation by her former employer based on the way her separation was coded within the employer’s system and the manner in which reference checks were being handled by her former employer. The plaintiff alleged the process for handling inquiries about her employment was atypical and raised flags to potential future employers. Evidence was presented that within the former employer’s internal recordkeeping system, the former employer coded the plaintiff’s separation as “voluntary resignation contact former agency”. Calls seeking references were sent to the former employer’s counsel who responded by stating he could not comment on the plaintiff’s separation. The plaintiff claimed that the manner in which her reference checks were handled was retaliatory because she had previously filed a Charge of Discrimination. A federal judge in Pennsylvania ruled that the plaintiff had presented enough evidence to support her retaliation claim and allowed the matter to proceed to a jury trial.
The EEOC’s guidance explains in detail that it is unlawful for employers to give a negative job reference, or refuse to give a reference, because a person has complained of unlawful discrimination or otherwise engaged in protected activity under federal or state civil rights laws. Having an established neutral protocol for handling references and consistently following that neutral protocol can minimise the risk of a retaliation claim arising long after the employment relationship ends. Employers also should consider consulting with legal counsel about proactively addressing in settlement agreements how reference inquiries will be handled to avoid potential misunderstandings between the parties in the future.
1) Altitude Express Inc. v Zarda, Bostock v Clayton County, and R.G. & G.R. Harris Funeral Homes Inc. v E.E.O.C., Combined SCOTUS Docket No. 17-1618, www.scotusblog.com/case-files.
2) “What you should know about EEOC and the Enforcement Protections for LGBT Workers,” www.eeoc.gov/eeoc/newsroom/wysk/ enforcement_protections_lgbt_workers.cfm.
3) Tammy D. McCutchen, “OSHA Drones in the Workplace,” The Federalist Society, Dec. 6, 2018, https://fedsoc.org/commentary/blog-posts/osha-drones-in-the-workplace; Adele L. Abrams, “Did you know OSHA has a Drone Inspection Policy?”, American Society of Safety Professionals, February 12, 2019, www.assp.org/news-and-articles/2019/02/12/did-you-know-osha-has-a-drone-inspection-policy.
4) May 18, 2018 Memorandum from Thomas Galassi, Director of Enforcement Programs, Occupational Safety and Health Administration, United States Department of Labor, through Richard Mendelson, Acting Deputy Assistant Secretary, http://src.bna.com/DuS.
5) David Moye, “Tech Company asked for ‘Preferable Caucasian’ Candidate on LinkedIn Job Posting,” Huffpost, April 29, 2019, www.huffpost.com/entry/ cynet-systems-racist-job-post-linked-in_n_5cc71633e4b0fd8e35bfc914? guccounter=1&guce_referrer= aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8&guce_referrer _sig=AQAAAJvuFai6UTqi4_qKUwELE2q _kAuR4VcBV5rGKzwMcg3KMAocsVLpJUq-9zIM _CQ8gnsEReAyrc3ptwOd4VrFFM1vmHhbOI6bXx9tCHm1nIMrEBZ 57l5jpSuLj2t0Qlh2yxnUbGRhAx10X00kYRnl5i6GqZo DTYMHjtAUH-0uSAmv.
6) Andrew McIntosh, “Boeing discloses 36,000-employee data breach after email to spouse for help,” Puget Sound Business Journal, Feb. 28, 2017, www.bizjournals.com/seattle/news/2017/02/28/boeing-discloses-36-000-employee-data-breach.html.
7) Leese v Commonwealth of Pennsylvania, No. 3:2017cv—274 (M.D. Pa., July 18, 2019), https://law.justia.com/cases/federal/district-courts/pennsylvania/pamdce/3:2017cv00274/110663/54/.
Chris Gantt-SorensonHaynsworth Sinkler Boyd, P.A., Charleston (SC), Columbia (SC), Florence (SC), Greenville (SC), Myrtle Beach (SC), USA
T: +1 864 240 3282
Haynsworth Sinkler Boyd, P.A. provides business, litigation and financial legal services to national and international clients. With a history dating back to 1887, it is one of the largest law firms in South Carolina, with more than 115 attorneys.
Chris Gantt-Sorenson focuses her legal practice on helping employers, providing advice and counsel on all employment law issues that arise, as well as defending them in litigation brought against them by their employees. Her practice areas include ACA, FLSA, FMLA, ADA, Title VII, ERISA, and SC employment-related laws.
Published: Labour Law Newsletter, No. 07, Autumn 2019 l Photo: Kadmy - stock.adobe.com