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Author Archives: Brian F. Chandler

  1. Virginia Enacts COVID-19 Emergency Workplace Safety Rules

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    The Virginia Department of Labor and Industry recently enacted emergency workplace safety rules, §16VAC25-220 Emergency Temporary Standard Infectious Disease Prevention: SARS-CoV-2 Virus That Causes COVID-19, in an effort to mitigate COVID-19 risk to workers. This makes Virginia among the first states to enact such safety requirements.

    Some of the requirements included in the rules follow upon previous Executive Orders issued by Governor Northam, including the requirement to enforce mask wearing when it is not possible for employees to maintain adequate physical distance.

    The rules enact certain requirements for all employers, including enacting measures to mitigate the possibility of workplace transmission of COVID-19. Employers are also required to enact a procedure for employees to report symptoms and possible infection. The rules also enact restrictions on when employees infected, or possibly infected by COVID-19, may return to the workplace. It is very important for employers to follow the timelines included in the rules in order to avoid enforcement action.

    There are additional protocols required for industries involving increased risk; therefore, an initial analysis by any employer should involve a determination of risk based on the employer’s industry.

    If you have any questions related to this new standard, implementation of workplace safety measures, or any other employment related issues, the Employment Law team at Protorae Law is here to assist.
  2. New Restrictions on Non-Compete Agreements for Lower-Income Workers in VA (and New Obligations for their Employers)

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    With all the disruption of COVID-19, some recent developments in Virginia’s employment law may have been overlooked by employers. Among those, Virginia enacted a new law that goes into effect on July 1, 2020 banning covenants not to compete (commonly referred to as non-competition agreements) for certain low-income employees and independent contractors.

    This law, Va. Code Ann. § 40.1-28.7:7, prohibits employers from “enter[ing] into, enforc[ing], or threaten[ing] to enforce a covenant not to compete with any low-wage employee.” The term “low-wage employee” is a bit of a misnomer in this law, which defines that term to mean:

    • Employees whose average weekly earnings are less than the average weekly wage of the Commonwealth of Virginia computed according to Va. Code Ann. § 65.2-500(B). This section looks to the reported average annual wage as published by the Virginia Employment Commission. As of July 1, 2020, that threshold will be $1,137 per week;
    • Interns, students, apprentices, or trainees employed, with or without pay, at a trade or occupation in order to gain experience in either an educational or work capacity; and,
    • Independent contractors who are compensated for their services at an hourly rate that is less than the median hourly wage for the Commonwealth for all occupations reported during the prior calendar year by the Bureau of Labor Statistics of the U.S. Department of Labor. Based on the most recently published statistics, that threshold is $20.30 per hour.

    The law does exclude from its definition of “low-wage employee” any employee whose income is derived, predominantly or entirely, from sales commissions, incentives, or bonuses paid by the employer.

    So, what constitutes a covenant not to compete? Again, there is a bit of a misnomer here because the definition starts to straddle the concept of a covenant not to solicit. Covenants not to compete are defined as a covenant, including a provision in an employment agreement, or an agreement between an employer and the employee that “restrains, prohibits, or otherwise restricts” the employee’s ability to compete with his former employer following the termination of that individual’s employment. Blurring the line with covenants not to solicit, the law continues to require that an employee not be restricted from providing a service to a customer or client of the former employer if the employee does not initiate contact with or solicit the customer or client.  This carve out would allow carefully drafted covenants not to solicit to be enforceable in situations where, assuming the covenant complies with other legal requirements, the former employee takes an affirmative action to win business from customers or clients of their former employer.

    Additionally, the General Assembly went to the effort of making clear that the law was not intended to limit the application of non-disclosure agreements, which protect an employer’s proprietary and confidential information, including trade secrets. In other words, appropriate confidentiality or non-disclosure agreements are still permitted and will continue to be valuable tools to Virginia employers seeking to protect their confidential and proprietary information.

    In addition to civil penalties of $10,000 per violation as determined by the Commissioner of Labor and Industry, employees are authorized to bring civil actions against employers attempting to enforce a non-compete in violation of the law. If successful, that employee may be entitled to recover liquidated damages, lost compensation, damages, and reasonable attorneys’ fees and court costs. Further, injunctive relief preventing the employer from taking further action in violation of the law may be granted.

    Finally, this law imposes a new notice obligation on Virginia employers. Every employer is required to post either a copy of this law or a summary that has been approved by the Department of Labor and Industry, which has not yet been published. This posting must be made in the same location where other employee notices required by state or federal law are posted, such as employee break rooms. Failure to meet this notice requirement will be addressed with a written warning for the first violation, followed by a civil penalty not to exceed $250 for the second violation, and a civil penalty not to exceed $1,000 for each subsequent violation.

    The law is not retroactive, so it applies only to new covenants not to compete entered into after July 1, 2020, but it may make it more difficult to enforce your existing covenants not to compete against low-wage employees.

    If you need help reviewing your employment agreements and your policies related to requesting covenants not to compete with new employees and independent contractors, the team at Protorae Law is here to help. Stay tuned for additional guidance as the Department of Labor and Industry approved summary of this law is made available before July 1.

  3. Impact of COVID-19: New Federal Requirements Pertaining to FMLA and Sick Leave

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    Congress has made dramatic changes to paid leave requirements that every small and medium-size business must quickly understand. At Protorae Law, we have been monitoring this legislation since it was introduced, and we are ready and committed to providing our clients with timely guidance in the midst of an uncertain and challenging business environment.

    In an effort to alleviate economic pressures experienced by employees unable to work as a result of the coronavirus pandemic, yesterday legislation was enacted that will affect small and medium-size businesses throughout the country. The Families First Coronavirus Response Act makes important changes to leave requirements of the Family Medical Leave Act and also enacts the Emergency Paid Sick Leave Act. This new legislation requires businesses to continue paying eligible employees who take time off from work for specified reasons because of the coronavirus pandemic.

    Family Medical Leave

    The Emergency Family and Medical Leave Expansion Act created an obligation for small and medium-size businesses to pay certain employees if they are unable to work due to school closures or unavailable childcare as a result of the coronavirus.

    The following are the key features that employers must be aware of:

    • The changes to the FMLA apply to employers with fewer than 500 employees. This means that these new FMLA obligations apply to businesses even if they have only 1 employee.
    • Eligible employees are those employed for at least 30 days prior to the leave request.
    • The employee must be unable to work or telework due to a need for leave to care for a child if school or childcare are closed or unavailable due to COVID-19 public health emergency.
    • First 10 days of FMLA leave may be unpaid.
    • Any FMLA leave after 10 days must be paid by the employer at a rate not less then two-thirds of the employee’s regular rate of pay and hours (employees with varying schedules require more in-depth calculation).
    • Payment shall not exceed $200 per day or a total of $10,000.
    • Subsequent regulations may be coming that would exempt small businesses with less than 50 employees under certain conditions.

    Paid Sick Leave

    The Emergency Paid Sick Leave Act requires small and medium-size businesses to provide employees with paid sick leave for a variety of coronavirus-related reasons.

    The following are the key features of the Emergency Paid Sick Leave Act that you need to be aware of:

    • The Emergency Paid Sick Leave Act applies to businesses with fewer than 500 employees. This means that these new paid sick leave obligations apply to businesses even if they have only 1 employee.
    • Employees are entitled to paid sick time due to the following:
      • The employee is subject to a quarantine or isolation order related to COVID-19;
      • The employee has been advised by a health care provider to self-quarantine due to COVID-19;
      • The employee is experiencing COVID-19 symptoms and is seeking medical diagnosis;
      • The employee is caring for someone ordered or advised by a health care provider to isolate or quarantine themselves; or
      • The employee is caring for a son or daughter whose school or place of care is closed or unavailable due to COVID-19 precautions.
    • Full-time employees are entitled to 80 hours of paid sick time.
    • Part-time employees are entitled sick time equal to the number of hours worked, on average, over a two-week period (part time employees with varying hours require more in-depth analysis).
    • Compensation must be at the greater of the employee’s regular rate of pay or the Federal or state minimum wage subject to the following limitations:
      • Paid sick time shall not exceed $511 per day or $5,110 in total if the sick time is taken because of a coronavirus-related isolation, quarantine, or symptoms; and
      • Paid sick time shall not exceed $200 per day and $2,000 in total for any other permitted use (e.g., the need to provide childcare).
    • Employers may not require employees to use other paid leave before using paid sick leave.
    • Employers must post a notice concerning these paid sick leave rights (available soon).
    • Failing to pay employees sick leave or terminating them as a result of a request for paid sick leave are treated as violations of the Fair Labor Standards Act and subject to similar penalties.
    • Subsequent regulations may be coming that would exempt small businesses with less than 50 employees under certain conditions.

    For both the paid family medical leave and paid sick leave requirements, businesses may be permitted to claim 100 percent of the qualified amounts paid as a credit against other employment-related taxes. If the credit exceeds the employment taxes, it will be treated as an overpayment potentially subject to refund. Consult with a tax attorney Robert Trott for further information concerning any tax implications.

    For more details, please contact Employment Law attorney, Brian Chandler, who can further explain how these new and important employment laws may affect your business. These requirements will, undoubtedly, be costly and confusing to many small and medium-size businesses, and they will be subject to further implementing regulations in the weeks ahead. We are here to help you navigate the rapidly changing legal environment and the challenges yet to come.
  4. Judge Rules FBI Physical Fitness Test Constitutes Illegal Gender Discrimination

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    Federal District Court Judge Rules that FBI Physical Fitness Test with differing standards for Men and Women Constitutes Illegal Gender Discrimination Under Title VII

    Virginia Federal District Court Judge T.S. Ellis granted a disappointed FBI candidate summary judgment in his lawsuit against the FBI for requiring that he pass a physical fitness test which required higher physical standards for men. See Bauer v. Holder, 2014 U.S. Dist. LEXIS 80130, Case No. 1:13-cv-93 (E.D. Va., June 10, 2014)

    Jay Bauer applied for a position as a special agent for the FBI. Among the requirements for admission into the FBI as a special agent is passing a physical fitness test measuring sit-ups, push-ups and two running tests. The test had separate gender-normed requirements, apparently to take into account “physiological differences” between men and women. According to the FBI, these physical requirements “serve as a foundation for his/her ability to effectively apply principles and non-deadly force alternatives being taught in the [defensive tactics] program.” Mr. Bauer repeatedly failed certain portions of this physical fitness test, yet his score was higher than what was required of women to pass the test. Ultimately, Mr. Bauer was given the choice to resign from the FBI or be ultimately terminated.

    Bauer sued the FBI, alleging that the FBI’s separate standards for men and women constituted illegal discrimination based on sex under Title VII of the Civil Rights Act. Although Judge Ellis indicated that such gender-normed physical fitness tests may be acceptable if the FBI intended to test the basic fitness of FBI cadets, Judge Ellis also agreed with the plaintiff in striking down this test because the physical fitness test was designed to assess the physical abilities of cadets to perform certain job related tasks, and both men and women were required to perform the same tasks. The fact that existing FBI agents are not required to pass any physical fitness tests also detracts from the FBI’s argument that the physical abilities measured in the test were required for serving as a special agent.

    Employers should be wary when requiring applicants to pass gender-normed physical fitness tests. Although such tests may be acceptable in some circumstances, requiring differing standards for men and women will not likely pass muster under Title VII if the test is intended to measure the performance of similar job tasks.

  5. Importance of Narrowly Tailoring Geographic Limitations in Agreements

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    Wings LLC, a company that specializes in vehicle interior repair, had its motion for Temporary Restraining Order and Preliminary Injunction denied on March 6th, 2014. Wings was attempting to enforce noncompete and nonsolicitation agreements signed by two of their ex-employees after they began working for Capitol Leather, LLC.

    The agreement stated that for 2 years after leaving Wings, the employees could not directly solicit any company that had been a customer of Wings in the last 12 months of their employment. The agreement also stated that the ex-employees could not hold a position that was the same or similar to their job at Wings at a company who produced anything in the last year that would compete with Wings, and would apply to any U.S. state or foreign country that Wings had done business with in that last year.

    The Fairfax Circuit judge ruled that the geographic restriction was too broad to enforce, as it would severely impact both ex-employees’ ability to obtain a new job in the area they live in.

    The key point to take away from this case is the importance of narrowly tailoring the geographic limitations of a noncompete. The majority of Wings’ customers are auto dealerships and collision centers who hire them to repair the interior of their cars from a local site. Wing’s customers have to be within a reasonable driving distance to a Wings location in order to use their services, which essentially confines their customer base to a smaller area.

    By dictating that ex-employees could not do business in any state that Wings had provided services to in the last year, it was barring them from working at a company that could possibly be 300 miles away in the same state, in an area that Wings does not have regular business. Wings did not have a legitimate business interest in restricting the ex-employees from working as technicians for 2 years in the entire states of Virginia, Maryland and West Virginia.

    The court’s ruling demonstrates the importance of employers narrowly tailoring the geographic restrictions of non-competes to regions in which the employer actually engages in business.  Employers are likely best served in reducing the geographic restrictions to the smallest possible radius or political unit (such as a county, town or city) in which the employer conducts its business.

    Click here to read the Court’s opinion.

  6. Virginia Supreme Court Allows Employer to Provide Evidence that a Non-compete was Not Overbroad

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    John Malyevac (the “Employee”) sold computer products for Assurance Data, Inc. (“ADI”). The two parties entered into an employment agreement which contained non-competition, non-disclosure, and non-solicitation provisions.

    According to ADI, after resigning from the company, the Employee breached the agreement “by performing work and services and selling products in direct competition with ADI, by engaging in other prohibited activities, and by failing to return confidential information.” Op. at 4. ADI brought a lawsuit against the Employee to enforce the employment agreement.

    The Employee filed a “demurrer” which tests the legal sufficiency of the facts in the complaint. The Employee argued that the agreement’s non-compete and non-solicitation provisions were overly broad restraints on competition. He claimed that the complaint should be dismissed for failure to state a claim upon which relief can be granted because the agreement’s vagueness and over-breadth made it unenforceable. The Employee, as an example, referred to a specific provision of the agreement that was vague. That paragraph provided that the Employee: “for a period of twelve (12) after the date of termination hereof, [he] will not, directly or indirectly, seek, engage in or solicit . . . any business which is competitive with [ADI’s] . . . .”

    The Employee argued that it is impossible to know whether the duration of “twelve (12)” refers to days, weeks, months or years.

    The Fairfax Circuit Court found that the employment contract was unenforceable, deciding that the lawsuit brought by ADI on the unenforceable contract must therefore be dismissed. The Court reasoned that there can be no cause of action for breach of contract if there is not an enforceable contract.

    The Virginia Supreme Court disagreed with the lower court’s holding. The Supreme Court stated that the Circuit Court overstepped its bounds by dismissing the case on demurrer because ADI should have been allowed to present evidence to prove that the restraints contained in the non-compete were reasonable under the particular circumstances.

    A “demurrer” tests the legal sufficiency of facts alleged in pleadings, not the strength of proof. Op. at 6 (citing Dunn, McCormack & MacPherson v. Connolly, 281 Va. 553, 557 (2011)). A complaint does not need to provide “details of proof” to overcome a challenge on demurrer. Op. at 7 (citing CaterCorp, Inc. v. Catering Concepts, Inc., 246 Va. 22, 24 (1993)). The complaint must merely show the nature of the claim. Id.

    The Supreme Court, therefore, decided that the lower court was not supposed to examine the agreement’s non-compete and non-solicitation provisions to determine their enforceability without permitting ADI to present evidence. ADI should have been permitted to demonstrate that the restraints were limited enough under the non-compete standard which dictates that they be “no greater than necessary to protect [ADI’s] legitimate business interests, . . . not unduly harsh or oppressive in curtailing [the Employee’s] ability to earn a livelihood, and . . . reasonable in light of sound public policy. Op. at 10 (citing Modern Environments, Inc. v. Stinnet, 263 Va. 491, 493 (2002)).

    This case shows that when an employer attempts to enforce an employment agreement by filing a law suit, the case will no longer be dismissed on demurrer in response to an argument that the employment agreement is overbroad and vague, as was frequently the case prior to this decision. A court will allow “[a]n employer [to] prove a seemingly overbroad restraint to be reasonable under the particular circumstances of the case” before it can be said that the agreement is unenforceable. Op. at 9 (citing Simmons v. Miller, 261 Va. 561, 581 (2001)). This case will likely give more leverage to employers when attempting to enforce restrictions, as a former employee will need to undergo the expense of an evidentiary hearing prior to determining whether the employee is subject to a broad non-compete.

    Click here to read the Court’s opinion.

  7. Virginia Employers Should Give Specific Reasons for Hiring and Promoting to Defend Against Harassment Claims

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    To the extent employers can, they should keep a record of objective criteria used when choosing one employee over another in the context hiring and promoting employees.  Keeping an accurate record of the reasons for employment-related decisions can be useful to protect employers against discrimination claims.

    A federal district court in Virginia recently found that an employer failed to present a sufficient nondiscriminatory reason for choosing a male interviewee for a promotion over the female plaintiff in order to dismiss a summary judgment motion.  The employer did not give enough explanation as to why it chose the male employee, providing only two brief interview summaries, one of which was prepared after the female employee filed this lawsuit, which reflects only one subjective hiring standard and did not defeat plaintiff’s allegations of pretext.

    Plaintiff, Pamela Hill, sued under Title VII of the Civil Rights Act of 1964 for sexual discrimination, saying her employer of more than 15 years failed to promote her because she is female.  Her employer, the Virginia Department of Transportation (VDOT), filed a motion for summary judgment in response.

    Hill is an engineer and worked at VDOT as a senior engineer.  She applied for the position of Assistant District Administrator for Construction & Preliminary Engineering in 2010.  She interviewed with a two-member panel.  VDOT hired Christopher Blevins, instead of Hill because, VDOT explains, Blevins performed better in the interview.

    The court decided that Hill met the preliminary test to show discrimination, and therefore VDOT was required to provide a “legitimate, nondiscriminatory reason for the adverse employment action.”  Op. at 3 (quoting Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 285 (4th Cir. 2004).  The burden then shifted back to Plaintiff to show that the employer’s stated reasons were not true, but merely a pretext for discrimination, “by showing that she was better qualified or by amassing circumstantial evidence that otherwise undermines the credibility of the employer’s stated reasons.”  Op. at 4 (quoting Heiko v. Colombo Sav. Bank, 434 F.3d 249, 259 (4th Cir. 2006).

    VDOT claimed that its employment decision was based solely on the candidates’ responses during their interviews.  VDOT offered a three-sentence summary of Hill’s interview, which stated her answers to the interview questions failed to reveal her knowledge in construction, were vague and unclear, and failed to provide examples of leadership.

    Hill argued that the evidence was sufficient to support a finding that she was more qualified than Blevins.  The job posting required a college degree in civil engineering or a similar field.  Hill has an engineering degree, while Blevins does not possess a college degree.  Hill argued that she has more than 3 years of experience as Acting Area Construction Engineer, but Blevins has only 6 months of experience in that position.

    The court held that VDOT’s single, entirely subjective criterion for the hiring decision (Hill’s interview) failed to adequately support the defendant’s motion for summary judgment.  It found that Hill had sufficiently raised a genuine question of fact as to the veracity of VDOT’s justification.  “Hill’s discussion of her relevant qualifications is sufficient in this respect, particularly because VDOT’s explanation of its nondiscriminatory reason –that Blevins performed better in the interview –is both entirely subjective and meagerly explained.”  Op. at 7.

    The court pointed out that in other Circuits, the use of subjective criteria alone in the hiring process, such as interviews, may give rise to an inference of pretext.  However, within the Fourth Circuit, “cases condoning the use of subjective criteria as evidence of nondiscriminatory hiring justifications have also cited additional, objective explanations for the employers’ decisions.”  Op. at 8.  Specifically, in another Fourth Circuit case titled Hux v. City of Newport News, Virginia, the employer relied on the plaintiff’s poor interview performance as only one of many factors when it explained why it didn’t promote a particular candidate.  451 F.3d 311, 319 (4th Cir. 2006).  Other factors were poor work performance, lack of experience, and significant leave time usage.  Op. at 8 (citing Hux, 451 F.3d at 318-19).

    The presentation of two short interview summaries was insufficient in this case, due to their subjective nature.  It is very difficult to evaluate the truthfulness of subjective justifications.  Therefore, employers finding themselves in the Fourth Circuit, which includes Virginia, should be prepared to thoroughly explain how its employment decisions are made.  In providing this explanation, employers should give enough justification for their employment decisions by presenting more than a single, subjective hiring criterion (i.e., more than an interview), and support for their criteria, such as, for example, an explanation of how the interview was indicative of job performance.

  8. Supreme Court Limits Employer Liability for Supervisor Actions

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    Since 1998, it has been held that an employer is liable for workplace harassment by an employee who is a supervisor.  However, the question that remained unclear until now was who exactly qualifies as a “supervisor?”

    In a recent decision, the Supreme Court limited an employer’s liability in Title VII situations, holding that an employer is only liable for discrimination by a supervisor if that supervisor has authority to effect tangible changes in employment status, such as hire, fire, demote, promote, transfer or discipline the employee who suffers the discrimination.

    This case came about after an African-American woman named Maetta Vance sued her employer, Ball State University, alleging that Saundra Davis, another employee, created a racially hostile work environment.  After a lengthy discussion about the meaning of “supervisor” and recognition that many modern businesses no longer have a hierarchical management structures, the court decided that an employee is a supervisor only if he or she is empowered by the employer to take tangible employment actions against the victim.

    As a result, employers may now be able to avoid liability for hostile work environments by giving direct supervisors all powers except the hiring, firing, disciplining, and the like powers, and reserving those powers with other more-distant bosses.  In response to this idea, the court insisted that the new standard will not leave employees unprotected against harassment by co-workers who possess some authority to assign daily tasks, because the victims can prevail by merely showing that the employer was negligent in permitting the harassment to occur.  The court further stated that in these cases, the jury should be instructed that the nature and degree of authority of the harasser is an important factor in determining negligence.

    Virginia employers should keep in mind that despite this ruling that could potentially limit liability, employers can still be held accountable in a harassment situation under the negligence standard.  Clear company policies and training regarding proper conduct in the workplace are essential.

    Click here to read the full opinion.

  9. Former Employee Didn’t Show “Substantial Impairment” for Insufficient Sleep Disability, and Her Retaliation Claim was Defeated by the Former Employer’s Legitimate Reason for Termination

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    In a recent Fourth Circuit case, the court decided against a former employee because the employer provided a legitimate reason for firing the employee, and the employer’s actions and statements regarding the reasons for firing her remained consistent.

    Victoria Anderson sued her former employer in the U.S. District Court for the District of Maryland for failure to accommodate her claimed disability of insufficient sleep.  Her complaint, brought under the Americans with Disabilities Act (“ADA”) and the Montgomery County, Maryland, Human Rights Act (“MCHRA”), included a claim for retaliation, as well as a claim of interference of rights under the Family medical Leave Act (“FMLA”).  Upon appeal to the U.S. Court of Appeals for the Fourth Circuit, the court agreed with the district court that Anderson was not “substantially impaired” by her lack of sleep and that Discovery’s reasons for terminating Anderson were not a pretext.  Click here for the opinion.

    From August 2004 to January 2007, Anderson worked as an attorney for Discovery Communications, LLC (“Discovery”).  While Discovery recognized her for her legal skills, Anderson’s annual performance reviews consistently highlighted her lack of organization and prioritization and poor interpersonal skills with colleagues and clients.

    In fall 2006, during a period of leave from employment after experiencing difficulty sleeping and getting less than 4 hours of sleep on an average night, tests by her regular doctor and a sleep specialist suggested she likely suffered from fatigue, sleep deprivation, and insomnia.  Anderson’s regular doctor recommended that she return to working full time, but no more than 8 hours per day.

    Anderson requested work days limited to 8 hours but only agreed to working in the office between 11 a.m. and 4 p.m.  She also refused to agree to track her personal, break or lunch time or account for her specific workload.  In response, Anderson’s supervisors at Discovery denied her request, stating that her job required her to be in the office from 9 a.m. to 6 p.m. each weekday, work a minimum of 40 hours per week, and remain flexible to work outside 9 a.m. to 6 p.m. when international transactions required.  In January 2007, Discovery terminated Anderson.

    The District Court granted summary judgment to Discovery, stating that Anderson failed to show (1) a prima facie case of failure to accommodate, (2) that Discovery’s legitimate non-discriminatory reasons for firing her were a pretext; and (3) that she had a serious medical condition entitling her to FMLA leave.  Anderson appealed the case to the Fourth Circuit.

    ADA Claims

    The ADA prohibits discrimination in employment decisions against individuals on the basis of disability.  42 U.S.C. § 12112(a).  A disability is defined as a physical or mental impairment that substantially limits one or more major life activities.

    The Fourth Circuit court agreed with the lower court that the evidence did not support the conclusion that Anderson was “substantially impaired” by her amount of sleep at the time Discovery terminated her employment.  This court applied the Supreme Court precedent case that held that the term “substantially” is to be interpreted strictly to create a demanding standard for qualifying as disabled: the impairment must prevent or severely restrict the individual from doing activities that are of central importance to most people’s daily lives.  The impairment must also be permanent or long term.

    (Despite Congress’ amendment of the ADA considerably in 2008, thus broadening the Supreme Court’s narrow reading of the statute, the court applied the Supreme Court precedent case because Anderson was terminated prior to the amendment.)

    Anderson’s doctors testified that during appointments in November and December of 2006, Anderson told them that her condition had improved since her time off and that she was not feeling any functional impairment as a result of getting less sleep.  The court concluded that Anderson failed to present evidence creating a genuine issue of material fact as to whether she was substantially impaired in December 2006.

    As for her ADA retaliation claim, Anderson had to show she engaged in conduct protected by the ADA, that she suffered an adverse employment action subsequent to engaging in the protected conduct, and a causal link existed between the protected activity and the adverse action.  To show the causal link, she had to show that Discovery’s reason for the termination was a pretext for discrimination or retaliation.  See Op. at 14, citing Laber v. Harvey, 438 F.3d 404, 432 (4th Cir. 2006).

    Anderson claimed that at the time of termination, her supervisor told her that the only reason she was being let go was her failure to update her time records, but that since litigation began, Discovery manufactured additional reasons to support its decision.  The Fourth Circuit court has held in the past that an employer’s changing explanations for its employment decision gives rise to an inference of pretext, but the court noted that this was not the case here.  Since the time of Anderson’s actual discharge through litigation, Discovery’s explanation for its decision had been consistent:  Anderson’s untrustworthiness and poor communication skills.  The court stated that in the absence of such evidence of pretext, it is not their province to decide whether Discovery’s reason was wise, fair, or even correct, so long as it truly was the reason for Anderson’s termination.  Therefore, the Fourth Circuit court concluded that the district court rightfully granted summary judgment to Discovery.

    FMLA claim

    The FMLA allows certain employees to take a total of 12 work weeks of leave during a twelve-month period for a serious health condition that makes the employee unable to perform the functions of her job.  Anderson claimed that Discovery violated the FMLA by unlawfully interfering with her right to take a reduced work schedule upon her return to work in November.  To establish her FMLA claim, she had to prove interference and also that the violation prejudiced her in some way- which can be shown by lost compensation or benefits due to the violation, or a loss in employment status remediable through appropriate equitable relief, such as reinstatement or promotion.

    The only prejudice Anderson claimed as a result of Discovery’s alleged unlawful denial of her request for a reduced work schedule was that she was not permitted to work a reduced schedule.  She did not claim lost compensation, benefits, employment status, or the like due to the interference.  The court noted that her termination was an unrelated event.  Therefore, the court held that her interference claim failed.

    In this case, Discovery was able to show that there were other grounds for Anderson’s termination and that her disability was not the reason they fired her.  Most importantly, Discovery did not change its position on what those grounds were.  Consistency is key to avoiding an inference of pretext.  So long as an employer’s provided reasons for a termination remain unchanging and other evidence showing pretext is absent, fired employees should be unsuccessful on a retaliation claim in the Fourth Circuit.

  10. “Too Sexy?” “Too Heavy?” Will Employee Appearance Standards be Protected?

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    Most employers understand that it is illegal to discriminate against someone due to their race, gender, or age in employment decisions. Recent news is now questioning whether it is acceptable to discriminate against existing or potential employees based on their weight or appearance.

    A waitress at a Hooters restaurant was recently in the news claiming that Hooters recently warned her that she was required to loose approximately 10 pounds in the near future or face possible discharge.

    The waitress responded with filing a weight discrimination lawsuit against the restaurant chain under a unique Michigan statute known as the Elliot-Larsen Civil Rights Act. Among other things, this statute bars employers from discriminating on the basis of height or weight. See MICH. COMP. LAWS § 37.2102 (1976).

    In another suit, a former banker at Citibank in New York City has filed a lawsuit against the bank, claiming that she was terminated because she was “too sexy” and that she frequently wore clothing which was too revealing.

    This lawsuit was filed under the New York City Human Rights Act, which provides broad protections against employment discrimination. The New York City Human Rights Act’s broad definition of gender discrimination includes “a person’s gender identity, self-image, appearance, behavior or expression, whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the legal sex assigned to that person at birth.” See, New York City Human Rights Act §8-102(23).

    Both of these cases suggest that former employees are looking for ways to allege discrimination against former employers outside of traditional and well-established categories, such as sexual, racial, physical disability and age discrimination. Whether the courts, Congress, or state legislatures will be receptive to this trend remains an open question.

    Both the case against Hooters and the case against Citibank are unique in so far as both cases rely upon particularly broad state or municipal statutes. To this date, Michigan remains the only state in the nation which expressly protects employees from discrimination based upon their weight or height. Several other local governments, including New York City, San Francisco, Santa Cruz, and the District of Columbia, bar discrimination based upon an employee’s general appearance.

    The District of Columbia Human Rights Act provides very broad protections to employees from discrimination. Under the District of Columbia statute, employers are prohibited from discriminating against any employee on the basis of “race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, family responsibilities, genetic information, disability, matriculation, or political affiliation “ See D.C. CODE ANN. § 2-1402.11 (1977).

    Employers are barred from using any one of these categories in refusing to hire an employee, terminating employment or otherwise discriminating “against any individual with respect to his compensation, terms, conditions or privileges of employment, including promotion”. Employers in the District of Columbia should be particularly cautious about terminating employees for any appearance based issues, as personal appearance and the expression of an employee’s gender identification are protected.

    Outside of the District of Columbia, Michigan, and the other local governments barring discrimination on the basis of appearance, it appears unlikely that many state legislatures will expand employment protections to include weight or general appearance in the near future. Locally, it does not appear that there is any legislation pending before the Virginia General Assembly expanding employment protections to include new categories. Although Virginia does have a Human Rights Act, the protections provided by the Virginia statute are limited to employment terminations based on race, color, religion, national origin, sex, pregnancy, childbirth, or medical conditions related to childbirth. See VA. CODE ANN. § 2.2-3901 (2005)

    Under Virginia law, a private cause of action is only provided for discriminatory discharge (as opposed to other employment decisions, such as failure to promote) and the Virginia statute only applies to employers employing more than five but less than fifteen employees (Title VII only applies to firms employing at least fifteen employees).

    On the Federal level, although there has been a renewed push after the 2008 election to broaden employment protections to include sexual orientation and gender identity, there is currently no legislation before Congress to protect an employee from appearance-based discrimination. At this point in time, it is unlikely that Title VII will be amended to include appearance-based protections.

    It should be noted, however, that under certain circumstances, discrimination due to weight may be considered a violation of the American With Disabilities Act, to the extent the employee’s weight results from a physiological condition.

    Although the Citibank and Hooters cases are newsworthy, it does not appear that there is a concerted effort to expand employee protection to appearance discrimination at the federal level, or in most state legislatures. Nevertheless, employers and human resources personnel should make efforts to remain up to date on changes to federal and state laws relating to prohibited categories of discrimination in order to avoid costly litigation.