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Employment Law Memo 07/26/2004
LawMemo.Com - First in Employment Law
Caselaw Database: http://www.lawmemo.com/search/ 

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8th - Faragher/Ellerth affirmative defense was available to employer in Title VII "single incident sexual harassment" case (2-1).

McCurdy v. Arkansas State Police (8th Cir 07/23/2004)

McCurdy, who worked for the state police, sued her employer for sexual harassment under Title VII.  The claim arose from a single incident of sexually harassing behavior, which McCurdy reported and to which the employer immediately and effectively responded.  McCurdy suffered no tangible employment action.  The trial court concluded that the employer was insulated from liability under the Faragher/Ellerth affirmative defense.  The 8th Circuit affirmed.

In Title VII sexual harassment cases where an employee does not suffer an adverse employment action, employers may attempt to avail themselves of the affirmative defense set forth by the United States Supreme Court in Faragher v. City of Boca Raton, 524 US 775 (1998), and Burlington Indus., Inc. v. Ellerth, 524 US 754 (1998).  Under the Faragher/Ellerth affirmative defense, an employer must establish that 1) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and 2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm. 

In cases where the alleged sexual harassment occurs all in one incident, even where employees promptly report sexual harassment their employers will have no opportunities to remedy the situation.  By the time the employers learn of the harm, the damage has already been done.  In such cases, employers will have no way to establish the second element of the Faraghar/Ellerth affirmative defense and will in effect be strictly liable for sexual harassment even when no tangible employment action is present.  The court refused to adopt such an approach, stating "[w]e conclude the Supreme Court, in crafting the Ellerth/Faragher affirmative defense, did not change course in sexual harassment jurisprudence by holding employers strictly liable fro single incidents of supervisor sexual harassment."  The court thus concluded ultimately that the Faragher/Ellerth affirmative defense is available in "single incident cases in which the employee takes advantage of preventative or corrective opportunities provided by the employer and the employer thereafter takes swift and effective action to avoid further offensive conduct."

2nd - Court addresses regulations interpreting FLSA's "companionship services" exemption.

Coke v. Long Island Care At Home (2nd Cir 07/22/2004)

29 USC Section 213(a)(15) of the Fair Labor Standards Act (FLSA) exempts from FLSA coverage employees engaged in "babysitting services" and "companionship services."  The exemption applies to "any employee employed on a casual basis in domestic service employment to provide babysitting services or any employee employed in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves (as such terms are defined and delimited by regulations of the Secretary [of Labor]) .... "

The court considered the enforceability of two Department of Labor (DOL) regulations interpreting Section 213(a)(15).  The first regulation, 29 CFR Section 552.6, includes within the exemption 1) those who perform household work related to the care of the elderly or infirm; and 2) those who also perform housework incidental to their 'companionship services' as long as the housework accounts for less than twenty percent of the weekly hours worked.  The second regulation, 29 CFR Section 552.109(a), applies the exemption to "[e]mployees who are engaged in providing companionship services, as defined in Section 552.6, and who are employed by an employer or agency other than the family or household using their services."  The court held that the first regulation (Section 552.6) was entitled to Chevron deference and enforceable.  The court declined to afford the second regulation (Section 552.109(a)) Chevron deference, and held that it failed under the less deferential "Skidmore" level of deference. 

The court noted that Section 552.109(a) "is ... jarringly inconsistent with other regulations the DOL itself promulgated under the FLSA immediately following the 1974 amendments."  The court noted that 29 CFR Section 552.3, which "was legislative, issued pursuant to Section 213(a)(15) and, thus, entitled to Chevron deference" defined the term "domestic service employment" as "services of a household nature performed by an employee in or about a private home ... of a person by whom he or she is employed."  Observing that "[p]lainly, under Section 552.3, employees employed by third parties do not qualify for the exemption,"  the court reasoned "the stark internal inconsistency between Section 552.109(a) and Section 552.3, when coupled with the latter's entitlement to greater deference and its greater consistency with congressional purpose, strongly counsels against enforcement of Section 552.109(a)."

PA - "Independent contractor" defined for purposes of state civil rights act.

Velocity Express v. Pennsylvania Human Relations Commn (Pennsylvania Cmwlth 07/20/2004)

The Pennsylvania Human Relations Act (PHRA) prohibits employers from discriminating against any "individual or independent contractor."  Section 4(x) of the PHRA states that "[t]he term 'independent contractor' includes any person who is subject to the provisions governing any of the professions and occupations regulated by State licensing laws enforced by the  Bureau of Professional and Occupational Affairs in the Department of State [of the Commonwealth of Pennsylvania], or is included in the Fair Housing Act .... "  The court held that the term "independent contractor" under the PHRA is limited to the list of occupations set forth in Section 4(x).  In other words, the list set forth in Section 4(x) forms the exclusive set of independent contractors protected by the PHRA.

WA - Employee failed to establish a nexus between his disability and the need for accommodation.

Riehl v. Foodmaker (Washington 07/22/2004)

Riehl sued the employer, claiming disability discrimination under state law.  He alleged that the employer failed to reasonably accommodate his disability, and subjected him to disparate treatment when it discharged and then failed to rehire him.  The trial court granted summary judgment in favor of the employer on both the accommodation and the disparate treatment claims.  The appellate court below affirmed as to the accommodation claim, but reversed as to the disparate treatment claim.  The court affirmed.  The court noted that, "if challenged, the employee must come forward at summary judgment or trial with competent evidence establishing a nexus between the disability and the need for accommodation."  The court noted further that "[a]n employer has to provide only medically necessary accommodations, and retaining the medical necessity requirement ensures that this is the case."  The court explained that "[t]he term 'medical necessity' refers to the employee's requirement to establish this nexus."

TX - Municipally created economic development corporations are "state instrumentalities" and thus employers under state civil rights act.

Purdin v. Copperas Cove Economic Development (Texas Ct App 07/21/2004)
(Link not available)

The definition of "employer" under the Texas Commission on Human Rights Act (TCHRA) includes "a county, municipality, state agency, or state instrumentality, regardless of the number of individuals employed."  The court held that an economic development corporation created by a municipality falls within the definition of "state instrumentality" for purposes of the TCHRA.  The court reasoned that "state instrumentalities" were intended by the legislature to include entities that perform public functions, and that economic development is a public function.

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6th - Substantial evidence supported NLRB's conclusion that truck drivers were employees rather than independent contractors.

Time Auto Transportation v. NLRB (6th Cir 07/23/2004)

The National Labor Relations Board (NLRB) found that the employer committed an unfair labor practice when it discharged two truck drivers in retaliation for engaging in union activities.  The employer argued on appeal that the NLRB erred in finding that the truck drivers were not independent contractors, but rather employees entitled to protection under the National Labor Relations Act (NLRA).  The 6th Circuit affirmed the NLRB's decision, concluding that substantial evidence supported the NLRB's conclusion that the truck drivers were employees.

7th - An NLRB decision issued pursuant to a Section 10(k) proceeding overrides a conflicting decision by an arbitrator, so trial court didn't err in vacating arbitration award.

Advance Cast Stone Co v. Bridge Structural and Reinforcing Iron Workers (7th Cir 07/22/2004)

The trial court vacated an arbitration award entered in favor of the union.  The arbitrator had agreed with the union that the employer was bound by a multi-employer agreement with the union, and that the employer thus committed an unfair labor practice when it assigned certain positions to members of another union.  The trial court based its decision on the results of a "10(k) determination" rendered by the National Labor Relations Board (NLRB), in which the NLRB found that the employer was not bound by any collective bargaining agreements with the union.  Since the NLRB's 10(k) determination conflicted with the arbitrators' decision that the employer was bound by a collective bargaining agreement with the union, the trial court applied settled 7th Circuit precedent ("an NLRB decision issued pursuant to a Section 10(k) proceeding overrides a conflicting decision by an arbitrator") and vacated the arbitration award.  The 7th Circuit affirmed.

CT - Trial court didn't err in denying injunctive relief to union, where union sought access to private shopping mall to distribute leaflets and contact patrons.

United Food and Commercial Workers Union v. Crystal Mall (Connecticut 07/27/2004)

The union sought injunctive relief allowing it to access a private mall for purposes of distributing literature and contacting mall patrons to discuss employee rights.  The union claimed that denial of access to the mall infringed upon its rights to free speech and assembly under Connecticut's state constitution.  The trial court rejected the union's argument and denied its request for injunctive relief.  The court affirmed, concluding that "in the present case, there is inadequate state action to trigger state constitutional protection."

HI - Trial court didn't err in affirming Hawaii Labor Relations Board's decision dismissing employee's "prohibited practice" complaints.

Poe v. Hawaii Labor Relations Bd (Hawaii 07/21/2004)


Poe, a state employee, filed complaints with the Hawaii Labor Relations Board (HLRB).  The HLRB dismissed the complaints, on the basis that 1) Poe failed to exhaust the remedies available under the collective bargaining agreement; and 2) Poe failed to prove that his union breached its duty of fair representation.  The trial court affirmed the HLRB's decision.  The court affirmed.

LA - Trial court didn't err in reducing compensatory damages award, but it did err by reducing the award too much.

Brooks v. Southern University (Louisiana Ct App 07/14/2004)
(Link not available)

Brooks prevailed on her state law hostile environment sexual harassment, gender discrimination, and retaliation claims.  She was awarded $475,000 in compensatory damages by a jury, but the trial court reduced the award to $65,000.  The trial court also awarded attorney fees in the amount of 40 percent of the damages award.  The court affirmed as to liability, but concluded that the trial court erred in reducing the damages award too much.  The court concluded that $200,000 was the lowest amount reasonably supported by the record, and awarded an additional 40 percent of that amount as attorney fees.

MI - $21 million compensatory damages award vacated, new trial ordered, in state law sexual harassment case.

Gilbert v. DaimlerChrysler (Michigan 07/22/2004)

Gilbert sued the employer, asserting a state law hostile environment sexual harassment claim.  A jury awarded her $21 million in compensatory damages - the largest recorded compensatory award for a single-plaintiff sexual harassment suit in the history of the United States.  The appellate court below affirmed.  The court reversed, concluding that the award was excessive - a result of the jury's "passion rather than reason and prejudice rather than impartiality."  The court opined that Gilbert's trial counsel "engaged in a sustained and deliberate effort to divert the jury's attention from the facts and the law."  The court noted that Gilbert's trial counsel, in his closing arguments, made "repeated attempts to equate plaintiff with the victims of the Holocaust."  The court also noted that the employer is under German ownership.

NJ - Public employer wasn't barred from seeking forfeiture of employee's employment for conviction of public disorder offense.

State v. Och (New Jersey App Div 07/21/2004)

Och was convicted of "wandering or loitering for the purposes of obtaining a controlled dangerous substance," a "disorderly persons" offense.  Subsequent to Och's guilty plea, Och's employer petitioned the court seeking forfeiture of Och's employment pursuant to N.J.S.A. 2C:51-2.  The trial court concluded that the employer was barred from seeking forfeiture of Och's employment, since (among other reasons) the issue was raised and dealt with at sentencing.  The court reversed, concluding that "the term 'raised' means more than a mere discussion of the issue of forfeiture at the time of verdict, plea or conviction," and that "the issue of forfeiture was never 'raised' .... "

PA - Public employer didn't commit unfair labor practice by discontinuing wage increases mandated by expired CBA.

Pennsylvania State Park Officers Assn v. Pennsylvania Labor Relations Bd (Pennsylvania Cmwlth 07/22/2004)


The public employer discontinued wage increases that were mandated by an expired collective bargaining agreement (CBA).  The Pennsylvania Labor Relations Board (PLRB) concluded that the discontinuation was not an unfair labor practice, rejecting the union's argument that the employer altered the "status quo."  The PLRB reasoned that "status quo" in this context means freezing wages at the moment a CBA expires.  The PLRB also rejected the union's "past practices" argument.  The court affirmed.

Editor: Ross Runkel, Professor of Law Emeritus.  
email Ross@LawMemo.Com, Phone 503-399-8028.
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