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Supreme Court Makes it Harder for Employees to Prove Title VII Retaliation Claims

levans.jpgIn two major victories for the management-side employment law bar, the Supreme Court of the United States handed down a pair of rulings on June 24, 2013, making it harder for plaintiffs to prove workplace discrimination and retaliation. In University of Texas Southwestern Medical Center v. Nassar, No. 12-484, the Court ruled in a 5-4 decision, authored by Justice Kennedy that Title VII retaliation claims require proof of "but for" causation, which will require plaintiffs to prove that the alleged unlawful and retaliatory employment action would not have occurred in the absence of the employer's alleged wrongful conduct.

Vance v. Ball State University: Supreme Court Holds Title VII Workplace Harassment Liability Analysis Depends on Whether Employee was a "Supervisor" or Merely a "Co-Worker".

sbyers.jpgOn June 24, 2013, affirming a decision by the 7th Circuit Court of Appeals, the Supreme Court of the United States held in a 5-4 decision that "an employee is a 'supervisor' for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim." Vance v. Ball State University, No. 11-556. The Court provided a definition and test for a supervisor that will fit in with the Faragher and Ellerth analysis in employment law matters. Faragher v. Boca Raton, 524 U.S. 775 (1998); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). The Faragher and Ellerth decisions provide a dichotomy between employer liability for co-worker harassment versus employer liability for supervisor harassment. If the hostile workplace harassment is at the hands of merely a co-worker, an employer is liable under Title VII if the employer was negligent in controlling the workplace conditions. Employers are strictly and vicariously liable for workplace harassment committed by supervisors if there has been some sort of tangible employment action levied by the supervisor on the employee. On the other hand, if no tangible employment action has occurred at the hands of a supervisor, the employer is afforded the "Faragher - Ellerth" affirmative defense that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventative or corrective opportunities that the employer provided, and will only be liable if the employer fails to establish the affirmative defense. The Vance v. Ball State University decision, limits the scope of Title VII "supervisor" liability to only those employees who have the authority to hire, fire, demote, promote, transfer, or discipline.

The misidentification of company's registered agent results in default liability to the company.

kpeil.jpgOn February 27, 2013, the Indiana Court of Appeals upheld a default judgment against a corporation, holding that it was liable for compensatory damages, treble damages, prejudgment interest, costs, and attorney fees in an action where it had listed the incorrect registered agent with the Indiana Secretary of State.

EEOC's New Strategic Plan Puts Employers on Warning, Continued

In our January 2013 newsletter article EEOC's New Strategic Plan Puts Employers on Warning, six categories were identified in which the EEOC would be prosecuting cases. See full article below and at www.hwelaw.com. The first of the six areas identified was, "eliminating systematic barriers to employment in recruitment and hiring." Systematic meaning, situations in which the process or practice discriminates against significant numbers of applicants or employees. This is compared to a discrimination case involving only a single employee.

EEOC's New Strategic Plan Puts Employers on Warning

lu_hwe_logo.jpgOn December 17, 2012, the The U.S. Equal Employment Opportunity Commission ("EEOC") released its Strategic Enforcement Plan ("SEP") for fiscal years 2012-2016. In the enforcement plan, the EEOC provided six key areas of enforcement which deserve national priority. These national priorities provide direction to employers on where to most efficiently adapt and revise employment policies in order to avoid potential EEOC issues and violations.

New I-9 Form Necessary for New-Hires

U.S. Citizenship and Immigration Services recently announced the newly revised Employment Eligibility Verification form, Form I-9. Employers are required to use the I-9 Form to verify the identity and employment authorization eligibility of their employees. The revisions to Form I-9 contain formatting changes and the inclusion of additional data fields. To utilize best practice, employers should begin using the new Form I-9 with revision date 03/08/13 immediately for all new hires. To ensure the correct form is utilized, the revision date is on the lower left of the new form, which reads "(Rev. 03/08/13)N." Employers are required to complete Form I-9 for all newly-hired and re-hired employees to verify their identity and authorization to work in the United States. Employers should begin utilizing the new form, which can be obtained at: http://www.uscis.gov/files/form/i-9.pdf and is attached hereto, by May 7, 2013.

Employment Decisions Based On An Employee's Status As A Family Caregiver Can Implicate Federal Anti-Discrimination Laws

lu_hwe_logo.jpgMost employers are aware of federal laws, and state-based counterparts, that prohibit discrimination in employment based on sex, race, disability, age, and other protected categories. Most employers are also familiar with the federal Family and Medical Leave Act (FMLA). However, many employers may not be aware that while there is no federal discrimination law prohibiting discrimination based on an employee's need to act as caregiver to a child, spouse or parent, employers who make employment-related decisions based on a person's status as a caregiver may risk violating one, or more, employment discrimination laws. Further, employers who retaliate against employees in response to requests for leave or other accommodations related to their caregiver status may face claims under the anti-retaliation provisions of federal and state anti-discrimination laws.

Employee Leave Under ADA, FMLA and Workers' Compensation

sbyers.jpgEmployers must keep apprised of the various laws that may come into play when their employees seek medical leaves of absence from the workplace. In some circumstances, employers may need to make sure their employment decisions are in accordance with the Americans with Disability Act ("ADA"), the Family and Medical Leave Act ("FMLA"), and Workers' Compensation statutes, individually or collectively. Anytime an employer has 50 or more employees, it is possible for all three statutes, the ADA, FMLA, and Workers' Compensation to be at issue when a covered employee seeks a leave of absence as a result of a job-related medical problem. Knowing how and when the various laws are applicable and what an employer is required to do pursuant to each law is critical.

EEOC's New Strategic Plan Puts Employers on Warning

lu_hwe_logo.jpgOn December 17, 2012, the The U.S. Equal Employment Opportunity Commission ("EEOC") released its Strategic Enforcement Plan ("SEP") for fiscal years 2012-2016. In the enforcement plan, the EEOC provided six key areas of enforcement which deserve national priority. These national priorities provide direction to employers on where to most efficiently adapt and revise employment policies in order to avoid potential EEOC issues and violations.

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