On August 12, 2015, the Third Circuit – the federal appellate court with jurisdiction over Pennsylvania – held that an employer’s decision to suspend an employee with pay was not an “adverse employment action” under Title VII of the Civil Rights Act of 1964. Because this was an issue of first impression in the Third Circuit, Pennsylvania employers need to be aware of the case.
As summer begins to fade into fall, people everywhere are just beginning to enjoy five months of riveting football action. While most football fans do not link the sight of their favorite team’s colors with issues of employment law, the American gridiron has proved to be one of the most important arenas for the development of modern workers’ compensation law. Many dedicated football fanatics talk about Jack Lambert’s toothless grimace, Joe Theismann’s broken leg, or Drew Brees’ torn labrum. Not many football fans consider how Lambert’s busted mouth is repaired, Theismann’s leg is healed, or Brees’ shoulder is reconstructed, though. The answers are found in the ubiquitous workers’ compensation system.
I was recently asked if an employer has to assign a qualified employee with a disability to a vacant position as part of the employer’s duty to reasonably accommodate the disability. The employer believed that, if he had a vacant position and the disabled employee was qualified for it, he had to give the job to that employee. While reassignment to a vacant position may be a reasonable accommodation under the ADA, there is no requirement that you must reassign the employee. Let’s see if we can clear up this misconception.
Title VII prohibits employment discrimination based on race, color, religion, sex, or national origin. To give effect to this prohibition, the statute imposes liability on employers who retaliate against employees who oppose unlawful employment practices. The U.S. Supreme Court and many federal circuit courts take an expansive view of what constitutes opposition to an unlawful employment practice. In the Fourth Circuit, we know that such opposition may be shown where a plaintiff has filed an informal grievance, an informal protest, or voiced persistent objection about an employment practice that is unlawful under Title VII or is reasonably believed to be unlawful by the employee. This analysis is, however, based on the totality of the circumstances.
On August 27, 2015, the National Labor Relations Board released its opinion in the case of Browning-Ferris Industries of California, Inc. and Sanitary Truck Drivers and Helpers, Local 350, International Brotherhood of Teamsters, Case 32-RC-109684. Browning-Ferris Industries (BFI) operated a recycling facility. Another employer, Leadpoint Business Services (Leadpoint), provided workers who sorted recyclable materials inside the facility. The relationship between BFI and Leadpoint is governed by a Temporary Labor Services Agreement. The question in the case was whether or not BFI and Leadpoint are joint employers. The answer was, “yes.”
Like most statutes prohibiting discrimination, Title VII also outlaws retaliation so that individuals will not be inhibited from asserting claims under the statute. Thus, Title VII prohibits retaliation against anyone who opposes an act made unlawful by it. The question, therefore, becomes what constitutes opposition to a practice unlawful under Title VII and to whom may such opposition be addressed?