Legal Watch - July 1, 2015
July 1, 2015
By Ira Michael Shepard, CUPA-HR general counsel and partner with Saul Ewing LLP
The highest court in the state of Colorado upheld an employer’s right to discharge an employee as a result of a random drug test for the use of marijuana, even though it was medical marijuana, which is legal in the state, and even though the employee was off duty at the time he used the marijuana (Coats v. Dish Network (Colo., No. 13SC394, 6/15/15)).
The case involved a quadriplegic who lawfully used medical marijuana at home to treat painful muscle spasms caused by his condition. The employer did not contend that the employee was impaired at work. Following his discharge, the employee sued under Colorado’s “lawful activities statute,” which generally makes it unlawful and discriminatory for an employer to discharge an employee for activities outside the workplace which are legal. The Colorado Supreme Court rejected the argument, holding that such a reading of the law was restrictive and that because the use of medical marijuana was still unlawful under federal law, the plaintiff was not discharged for a lawful “outside-of-work activity.” The court also cited the U.S. Constitution’s supremacy law in concluding that the federal government still has the right to regulate marijuana regardless of the state’s statute.
A former temporary employee of San Francisco City and County lost his First Amendment free speech case, which was dismissed in the wake of his termination by the Ninth Circuit whose decisions in the Garcetti cases led to a wave of free speech litigation. In this case, the court dismissed the plaintiff’s claims that he was terminated because of his criticism of city and county hiring practices with regard to temporary workers, which he raised at public union meetings and elsewhere (Turner v. City and County of San Francisco (9th Cir., No. 13-15099, 6/11/15)).
The plaintiff allegedly left his former job for a full-time job with the San Francisco government but was inappropriately made a temporary worker and was unsuccessful at converting to non-temporary status. He claimed he was wrongfully terminated as a result of his public comments on the inappropriate use of temporary workers by the city and county. The Ninth Circuit in dismissing the plaintiff’s case recognized that he did in fact speak out on a matter of public concern, but that his speech “was focused on and driven by his internal grievance” and he therefore was not speaking as a citizen on a matter of public concern.
The U.S. Court of Appeals for the Fourth Circuit recently reversed a trial court’s decision in favor of an employer and past precedent holding that a single incident does not support a hostile work environment case (Boyer-Liberto v. Fountainbleau Corp. (2015 BL 133087, 4th Cir., en banc, No. 13-1473, 5/7/15)). Prior precedent had held that in order to sustain a hostile work environment case, in the absence of an outrageous physical incursion in the sexual harassment area, the activity must be repeated.
The EEOC supported the plaintiff with an amicus brief and has applauded the groundbreaking decision (the Fourth Circuit judges ruled 12 to 3 in favor of the plaintiff). The plaintiff, who was a black employee, complained of a hostile work environment after her supervisor allegedly called her a “porch monkey.” The employer defended, and the trial court agreed that in order to make a case for a hostile work environment the activity must be repeated pervasively and that a single incident is not enough to sustain such a claim.
The Fourth Circuit, in reversing the trial court’s decision, cited sexual harassment precedent holding that a single incident is enough to support a hostile work environment case when the incident is severe enough to alter the “conditions of employment.” Here, the alleged comments came from the employee’s direct supervisor, not a coworker or unrelated manager.
The U.S. Supreme Court reversed an employer-friendly decision of the U.S. Court of Appeals for the Tenth Circuit which had dismissed a religious discrimination claim of a Muslim employee applicant who was not hired allegedly because of her wearing of a headscarf, which violated the employer’s “look” policy. The applicant had not told the employer of her need for a religious accommodation and the employer had claimed that it did not know it was violating her religious belief.
The nation’s highest court held that the employer may be held liable under Title VII for failure to accommodate an applicant’s religious observance even if the applicant fails to inform the employer of the conflict with work requirements and fails to request an accommodation (EEOC v. Abercrombie & Fitch Stores (2015 BL 171330, US No. 14-86, 6/1/15)). The Supreme Court went on to hold that Title VII prohibits employment decisions “taken with the motive of avoiding” accommodation even if the employer only suspects an applicant’s practice is based on religion.
The Supreme Court made this decision in an 8 to 1 vote with only Justice Clarence Thomas dissenting. Thomas wrote that the neutral application of the stores “look policy” (i.e. employees must possess a certain look) cannot establish intentional discrimination. Writing the majority decision was conservative Justice Antonin Scalia, who concluded that the EEOC/plaintiff had the opportunity to present this matter to a jury as a Title VII violation notwithstanding the employer’s alleged lack of knowledge that it may have been violating the applicant’s religious belief.
Adjunct professors at Siena College in Albany, New York voted 86 to 27 in favor of union representation by the SEIU, and visiting professors at the college also voted 16 to 5 in favor of SEIU representation. Separately, a United Auto Workers union affiliate petitioned to represent contingent faculty at Barnard College in New York. The unit of contingent faculty at the college is approximately 200.
In other news, some three years after adjunct faculty voted in favor of representation by an affiliate of the United Steelworkers, the National Labor Relations Board asserted jurisdiction over Duquesne University in Pittsburgh and recommended the certification of the union as the adjunct faculty’s representative. The NLRB rejected the university’s religious institution argument, holding that while Duquesne is a Catholic university, it did not prove that the adjuncts performed a religious function. In a similar case, the regional director of the NLRB in Chicago ordered the opening of ballots impounded since 2011 at Saint Xavier University in which its part-time faculty had voted in an NLRB-supervised election. The regional director concluded also that this Catholic university did not establish that its adjunct professors performed a religious function.
In both cases, the NLRB applied its December 2014 decision in Pacific Lutheran (361 NLRB No. 157, 202 LRRM 1001 (2014)) in which the Board ruled 3 to 2 that religious universities seeking exemption from unionization of faculty must prove that the faculty involved performs a religious function.