Author Archives: Benjamin W. Mounts

EEOC ISSUES ENFORCEMENT GUIDANCE ON RETALIATION

The United States Equal Opportunity Employment Commission (“EEOC”) is the federal agency charged with enforcing federal employment discrimination laws. In recent weeks, the EEOC issued the final version of its long anticipated Enforcement Guidance on Retaliation and Related Issues, (the “Guidance”) which provides loads of helpful information about the elements of proof for retaliation suits filed under EEO laws such as Title VII of the Civil Rights Act of 1964 (“Title VII”), the Age Discrimination in Employment Act (“ADEA”), and Title II of the Americans With Disabilities Act. Employers take note. Read More »

POKÉMON GO: AT (OR COMING TO) A WORKPLACE NEAR YOU

If you haven’t already heard, Pokémon Go, a virtual reality app created by Nintendo and Niantic, is taking the world by storm. According to Forbes, the app is about to surpass Twitter on the Android platform in daily active users, even though it was first released just a couple weeks ago in the United States and Australia and has not yet been made available worldwide. More and more people are getting in on the action, exploring real world landscapes with their smart phones in hopes of capturing virtual Pokémon appearing on their screen based on their phone’s clock and GPS location. It seems that no location is off limits, as Pokémon appear on or near both public and private property – even in bathrooms. As the Pokémon franchise motto commands, users “Gotta Catch ’Em All” at designated “Pokéstops” in their quest to become a renown Pokémon “trainer” who can out battle other users at local, virtual “Gyms.” Read More »

SCOTUS EXPANDS FREE SPEECH PROTECTION FOR PUBLIC-SECTOR EMPLOYEES

The Supreme Court of the United States has historically taken a very narrow view of the free speech protections afforded to public-sector employees under the First Amendment to the Constitution.  It has generally held that public-sector employee speech or political activity is protected only if (1) they spoke as a citizen, rather than within the auspices of their official duties; (2) they spoke on a matter of public concern; and, (3) their right to speak on that matter outweighed the government’s interest in curbing their speech to provide effective government service to citizens.  Public-sector employees have, more often than not, lost under this framework, most pointedly where there is any kind of concern that the wrong precedent will allow public-sector employees to gum up the public workplace with disruptive speech.  (Note that private-sector employees, who do not enjoy the protections of the Constitution absent governmental action, have even less free speech protection than public-sector employees.) Read More »

FOURTH CIRCUIT OK’S THE FBI’S GENDER-BASED PHYSICAL FITNESS STANDARDS UNDER TITLE VII

Since 2004, the Federal Bureau of Investigation (“FBI”) has required its special agent recruits to pass a physical fitness test (“PFT”), both before admission to and graduation from its academy in Quantico, Virginia.  The PFT consists of four-parts: (1) one-minute of sit-ups, (2) a 300-meter sprint, (3) push-ups to exhaustion, and (4) a 1.5-mile run.  Each part is subject to a gender-based standard.  Under the push-up portion of the PFT, for example, men must do thirty push-ups to pass, while women need only do fourteen.rlee

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NEW YEAR’S RESOLUTION: CLEANING UP THE FILE ROOM

Whether 2015 was good, bad, or ugly for you, 2016 is here, offering a clean slate of opportunity.  Whether you want to improve your health, your relationships, or your professional life, the first step is to make a New Year’s resolution.  A true New Year’s resolution is much more than a well-intentioned plan that you consider in the abstract during the serenity of your commute, between the craziness of work and home; it is something you are committed to – something you put into action and see to its completion – despite resulting difficulty. Read More »

RETALIATION SUITS UNDER TITLE VII IN THE FOURTH CIRCUIT: PANORAMIC VIEWS & THE REJECTION OF THE MANAGER RULE

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. Read More »

LESSENING THE LOAD: THE FOURTH CIRCUIT CLARIFIES PLAINTIFF’S BURDEN OF PROOF IN RETALIATION CASES UNDER TITLE VII

On May 21, 2015, the Fourth Circuit Court of Appeals clarified a plaintiff’s burden of proof in retaliation cases under Title VII, making it more challenging for employers in the Fourth Circuit to dispute a plaintiff’s prima facie case of retaliation.  A prima facie case is the legally sufficient amount of proof of the elements that form a claim. Read More »

TOY STORY AND A RECENT CASE FROM THE WEST VIRGINIA SUPREME COURT OF APPEALS

In 1995, Walt Disney Pictures and Pixar Animation Studios teamed up to produce what many ’90s kids and their parents now consider a classic animated film – Toy Story. (*Spoiler Alert*). It recounts a rivalry between a young boy’s favorite toy, Woody, and new toy, Buzz Lightyear. In an ironic twist, Woody has to rescue Buzz from an evil neighbor boy, Sid, to save his reputation with Andy’s other toys. To draw Sid’s attention away from Buzz in the film’s climactic scene, Woody uses his built-in voice box to say, “Somebody’s Poisoned the Waterhole!” (https://www.youtube.com/watch?v=gsusakRf7T8).group-disney-announces-toy-story-4-is-happening-126226

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SOONER IS ALWAYS BETTER THAN LATER

Although some things in life are worth the wait, lawsuits are not one of them. If your company is going to be sued, it’s almost always better for it to happen sooner rather than later. There are several practical reasons for this; I’ll list just a couple here. First, it’s much easier to defend a claim while evidence (and memory) is still fresh. Early fact investigation will yield more information and a better evaluation of a suit’s relative strengths and weaknesses. Second, it increases predictability, especially for smaller companies. For larger companies, litigation expenses may be the cost of doing business, but for others, the cost of litigation can be debilitating – especially when unsuspected. There is nothing worse than a small business getting hit with a difficult lawsuit right after choosing to bear additional market risks. But whether a company is large or small, increased predictability puts it in a better position to create and execute a business plan. Read More »