Employment Law Bits

Constructive Discharge: Can an employer be liable for sex discrimination for failing to provide new mothers access to a “lactation room”?

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sex. As amended by the Pregnancy Discrimination Act of 1978, sex-based discrimination under Title VII includes discrimination based on pregnancy, childbirth, or related medical conditions. Ames v. Nationwide Mut. Ins. Co., 747 F.3d 509, 513 (8th Cir. Iowa 2014). Can an employer be liable for sex discrimination for failing to provide new mothers access to a lactation room?

Recently, the Eight Circuit answered this question in the positive. The answer to this question is yes, however, for an employer to be liable in this situation, the employee must prove she was constructively discharged. To do that, an employee must show that the employer deliberately created intolerable working conditions with the intention of forcing her to quit.

In making this determination, courts will look at the treatment of the complaining employee by her employer. They will also take into consideration the employer’s attempts to accommodate the employee and efforts made to maintain the employment relationship.

Constructive discharge in a non-hostile work environment is difficult to prove because it requires the employee to show the intent of the employer. 

 

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Can you fire an employee for ranting against your company, or you personally, on Facebook?

American Medical Response fired one of its workers after she made negative comments about her supervisor on Facebook. The National Labor Relations Board (NRLB) issued a complaint against the company, alleging that it illegally terminated the employee. The NLRB further argued that a worker’s criticism of their boss is, “a protected concerted activity,” under the law, which protects employees’ ability to comment on the conditions of their employment. 

American Medical Response claims, in return, that the employee was fired because of serious complaints about her behavior and not because of the Facebook incident. 

Pundits set this case up to be precedent-setting in the ever expanding area of employment law regarding social media protocol. However, the case settled privately before going to trial. 

Under the terms of the settlement, which was approved by the NLRB, American Medical Response agreed to revise its rules. The company agreed not to discipline or discharge employees for engaging in discussions about wages and other work issues when not on the job. 

In 2013, the NLRB decided that a Facebook comment section among employees was protected concerted activity. The Facebook postings were complaints among employees about the conduct of their supervisor as it related to their terms and conditions of employment and about management's refusal to address the employees' concerns. The employees also discussed looking at a book about the rights of workers in California so that they could determine whether their employer was violating labor laws. These conversations for mutual aid and protection are classic concerted protected activity.

Furthermore, an employer may be in violation of Section 8(a)(1) of the National Labor Relations Act if they prohibit employees from discussing “protected concerted activity” on social media sites.

So, can you fire an employee for publishing negative information about you or your company on a social networking website? The answer, while still in flux, is likely no. However, in order to curtail such employee activities, it is advisable to devise a comprehensive social media policy under the guidance of your attorney and ask all employees to sign and acknowledge it.

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Are punitive damages recoverable in a Title VII discrimination case?

Title VII of the Civil Rights Act allows some employees who have been discriminated against to recover punitive damages from the employer. An employee will be entitled to punitive damages when an employer engages in discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual. 

Compensatory damages are recoverable when the employer “intentionally discriminates” against the employee.In order to recovery punitive damages, the employee must show that the employer had an intention to break federal law.This is a difficult task for the employee because it requires admission of evidence showing that the employer in fact had knowledge of the federal law, and that he or she intentionally disregarded it.This requires the employee to get into their employer’s head.

There will be many cases where a company believes that its discrimination is lawful.For example, an employer may rely on age in making an employment decision, but not know he or she is in violation of the Age Discrimination in Employment Act of 1967. In these types of cases, employers will only be potentially subject to compensatory damages. 

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Employers beware terminating protesting employees and those who use profanity

Section 8(a)(1) of the National Labor Relations Board (NLRB) Act protects employees who are terminated after they voice their opinion about working conditions. Employees do not lose this protection if, in response to the termination, they yell profanities at the employer. 

The NLRB recently reinstated an employee after he had been fired from a used auto-dealership. This employee protested certain working conditions at a company meeting. The employer responded by suggesting the employee leave the company if he didn’t like it there. The employee proceeded to yell obscene profanities in the middle of the meeting directly at the employer. The employer then, needless to say, terminated the employee. 

The only way an employee in this situation will lose the protection of Section 8(a)(1), is if the particular outburst is menacing, physically aggressive, or belligerent. Courts will use an objective test in determining whether the outburst amounts to a threat. However, there is a strong policy rational in protecting employees who protest working conditions. The standard to prove an employee physically threatened the employer is a high one and extremely difficult to meet. 

Employers must be careful in their decision to fire an employee after that employee uses profane language. If you have questions or concerns about terminating an employee under similar circumstances, please contact an employment law attorney. 

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