Articles

EEOC Retaliation Guidance

September, 2016

 EEOC ISSUES FINAL ENFORCEMENT GUIDANCE ON RETALIATION

On August 29, 2016, the U.S. Equal Employment Opportunity Commission, (EEOC), issued its final Enforcement Guidance on Retaliation and Related Issues to replace its 1998 Compliance Manual section on retaliation.  The guidance also addresses the separate “interference” provision of the Americans with Disabilities Act (ADA), which prohibits coercion, threats or other acts that interfere with the exercise of ADA rights.

The guidance addresses retaliation under each of the statutes enforced by the EEOC, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, (ADEA), Title V of the ADA, Section 501 of the Rehabilitation Act, the Equal Pay Act and Title II of the Genetic Information Nondiscrimination Act.

Topics explained in the new guidance include:

• The scope of employee activity protected by the law;
• Legal analysis to be used to determine if evidence supports a claim of retaliation;
• Remedies available for retaliation;
• Rules against interference with the exercise of rights under the ADA;
• Detailed examples of employer actions that may constitute retaliation.

SECOND CIRCUIT RECOGNIZES CAT’S PAW THEORY OF LIABILITY

An employer can be held liable for the retaliatory intent of a coworker of a victim based upon the employer’s own negligence.  Vasquez v. Empress Ambulance Service, 2016 U.S. App. LEXIS, August 29, 2016.

In the space of 24 hours, Andrea Vasquez faced unwelcome sexual advances in the workplace, complained about that conduct to her employer, and lost her job.  Vasquez

Vasquez was an emergency medical technician who was subjected to unwanted sexual overtures by another employee.  When she promptly complained to her supervisors, she was assured that the complaint would be investigated.  That investigation, however, consisted of the company crediting false documents manufactured by her co-worker perpetrator.  The documents purported to show that Vasquez had agreed to a sexual relationship.  The company refused to consider further contradictory evidence that Vasquez attempted to show them.

Vasquez sued and sought to recover against the company under what has been termed “cat’s paw” liability.  The phrase derives from an Aesop fable, in which a wily monkey flatters a naïve cat into pulling roasting chestnuts out of roaring fire for their mutual satisfaction; the monkey, however, devoured them fast, leaving the cat with a burnt paw and no chestnuts for its trouble.  Under a U.S. Supreme Court case, Staub v. Proctor Hospital, 562 U.S. 411, 415 n.1 (2011), the cat’s paw metaphor now “refers to a situation in which an employee is fired or subjected to some other adverse employment action by a supervisor who himself has no discriminatory motive, but who has been manipulated by a subordinate who does have such a motive and intended to bring about the adverse employment action.”  Cook v. IPC Intern. Corp., 673 F.3d 625, 628 (7^th Cir. 2012)(Posner, J.).

Prior to this case, the Second Circuit neither accepted nor rejected the cat’s paw approach to liability.  However, the Second Circuit adopted this approach and expanded it to include not just supervisors acting with discriminatory motives by co-employees as well.  “In sum, we hold that an employer may be held liable for an employee’s animus under a “cat’s paw” theory, regardless of the employee’s role within the organization, if the employer’s own negligence gives effect to the employee’s animus and causes the victim to suffer an adverse employment action.”  Vasquez, at 23.  In this case, the employer’s flawed investigation contributed to its negligence.

GRADUATE ASSISTANTS’ RIGHT TO ORGANIZE

INTO UNIONS NOW INCLUDES PRIVATE UNIVERSITIES

Collective bargaining of graduate assistants already works fine in public universities and will work in private universities as well, the National Labor Relations Board, (NLRB), decided on August 23, 2016, Columbia University, 364 NLRB No. 90.  The NLRB ruled that graduate student-employees at private universities are “employees” within the definition of the National Labor Relations Act (NLRA) and should be allowed to form unions and collectively bargain, thus overturning an old NLRB decision, Brown University, 342 NLRB 483 (2004).  That case held that graduate assistants at private universities could not organize because they weren’t defined as “employees” under the NLRA.  That prohibition did not prevent graduate assistants from organizing at public universities, however.