Legal Watch - April 17, 2014
April 17, 2014
By Ira Michael Shepard, CUPA-HR general counsel and partner with Saul Ewing LLP
A federal trial court recently held that an employee’s refusal to accept an apology from a supervisor who forcibly removed the female employee’s religious head scarf in front of male employees is not a protected activity under Title VII upon which the plaintiff may bring a retaliation claim for her ultimate termination (Elhassan v. P&G Manufacturing Co., 2014BL 84777(MDNC, No. 1:12-cv-01039, 3/27/14)). The court concluded that asking workers to resolve a dispute by having the offending employee/supervisor apologize is not a discriminatory employment practice under Title VII.
The plaintiff was from the Republic of Sudan and is Islamic. The plant had a work rule of prohibiting employees from wearing jewelry at the work site. However, the plaintiff and other workers regularly flouted the policy. The plaintiff had a practice of wearing a wedding ring and for religious reasons wore a head and neck wrap, or hijab, while working. On the day in question, the plaintiff’s shift supervisor searched her for jewelry by forcibly removing her hand from her pocket and removed her hijab in front of other workers. The plaintiff additionally alleged that she was treated this way because she had filed sex harassment charges against a friend of her supervisor, who was fired a result of her charges.
The company ordered the supervisor to apologize to the plaintiff for his actions. The plaintiff refused to accept the apology, which she believed was insincere. The court ruled that she could not base a retaliation claim on a predicate that the apology was insincere. The court held that, “encouraging two employees to settle their differences civilly by having one employee apologize is not a discriminatory practice made unlawful by Title VII.” The court also granted summary judgment to the employer on the plaintiff’s additional claims of religious harassment, national origin, religion and sex discrimination, and common law negligence.
A recent report from the Workplace Bullying Institute (WBI) concludes that 65.6 million employees nationwide have been affected by workplace bullying. According to the report, based on results from a recent WBI survey of American workers, 27 percent of U.S. workers are either experiencing abusive conduct at work currently or have in the past. An additional 21 percent of American workers have witnessed workplace bullying.
The report concludes that by and large employers are less than proactive with regard to policing workplace bullying or responding effectively to employee complaints of workplace bullying. Twenty-five percent of survey respondents reported that their employer routinely denies workplace bullying exists or fails to investigate complaints. Another 16 percent reported that employers discount complaints of workplace bullying or describe its impact as not serious. Only 12 percent of respondents reported that their employer takes workplace bullying complaints seriously and takes positive steps to eliminate it or correct the situation.
The report concluded that most workplace bullies are bosses and most are men — 40.1 percent of survey respondents said that bosses were the principal perpetrators; 56 percent said the perpetrator was of a higher rank than the victim; 33 percent said they experienced bullying from peers; and 11 percent said they were bullied by subordinates. The survey found that 69 percent of the bullies were men and 31 percent were women. Finally, 57 percent of respondents said the bullying they witnessed was male-on-female, while 43 percent said it was male-on-male.
In terms of legislative activity, the report indicated that since 2003, 26 states have had “healthy workplace” legislation introduced, but no state has yet passed such a statute. Of the 26 states where legislation has been introduced, 15 have bills under active consideration which address the issue of workplace bullying and abusive conduct at work.
The United States Court of Appeals for the Sixth Circuit recently affirmed a federal trial court decision dismissing EEOC allegations that an employer violated Title VII’s antidiscrimination provisions by using background credit checks on all employment applicants. The EEOC claimed that background credit checks have an adverse impact on minority applicants and therefore violate Title VII’s anti-employment discrimination provisions.
The EEOC submitted expert witness testimony that the use of these background checks had an adverse impact. Both the trial court and the court of appeals discredited the EEOC’s expert, concluding that the expert’s opinions are accepted only by the expert himself and therefore create no basis upon which to substantiate the EEOC’s case (EEOC v. Kaplan Higher Education Corporation (6th Cir. case no. 13-3408, 4/9/14)).
In unusually harsh terms, the court of appeals affirmed the dismissal of the EEOC’s case, concluding, “The EEOC brought this case on the basis of a homemade methodology, crafted by a witness with no particular expertise to craft it, administered by persons with no particular expertise to administer it, tested by no one, and accepted by only the witness himself … The district court did not abuse its discretion in excluding the testimony.”
This case, along with a similar appeal pending in another case in the Fourth Circuit Court of Appeals involving the same expert, is considered a major test in the EEOC’s ability to bring large-scale background check cases.