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Friday, March 2, 2018

Split in the Federal Circuits on Sexual Orientation Bias

Donald Zarda worked for Altitude Express as a skydiving instructor. Following one jump, a customer complained that Zarda had disclosed his homosexuality and other personal details during the jump. Zarda was fired soon thereafter. He sued Altitude Express claiming sex discrimination under Title VII, gender and sexual orientation discrimination under New York state law, and violation of state and federal wage and hour laws. Zarda is deceased but his lawsuit lives on through the two executors of his estate who have replaced him as plaintiff. At trial on his state law discrimination claim, the jury found that Zarda had not proved that his sexual orientation was a determining factor in his termination.

On appeal, Zarda claimed that Title VII protects against sexual-orientation discrimination and that part of his case should not have been dismissed. The U.S. Court of Appeals for the Second Circuit recently signaled in the fall that it might overrule its precedent holding that Title VII’s ban on sex discrimination does not include sexual orientation discrimination.

On February 26, the 2nd Circuit Court of Appeals ruled as follows: “We convened this rehearing en banc to consider whether Title VII prohibits discrimination on the basis of sexual orientation such that our precedents to the contrary should be overruled. We now hold that sexual orientation discrimination constitutes a form of discrimination ‘because of . . . sex,’ in violation of Title VII, and overturn its prior 2005 decision to the contrary. With this decision, the Second and Seventh Circuits have held that Sexual Orientation discrimination is prohibited by Title VII.  The Eleventh Circuit and 11th Circuit Justice Bill Pryor in Evans v. Georgia Regional Hospital says No, it isn't. Next stop the U.S. Supreme Court to resolve a split in the Circuits.

Common Sense Counsel: while the battle lines are drawn between Trump v Obama policy agendas, there is still no substitute for training your supervisors in effective and defensible termination and harassment prohibitions in all forms - to include gender identification and sexual orientation. Also, the new claim of “failing to conform to gender stereotypes” appears to be gaining traction in the 11th Circuit Court of Appeals.

Specifically, train your supervisors not to use loose words like “attitude” or “company culture” or “sexuality” or similar phrases that lack defined meaning in employment law, as the courts may assign meaning you do not like. Train all employees that it is about respect in the workplace and being able to work with others in a civil and cooperative manner are essential job functions. In fact, make respectful behavior and diversity and inclusion part of your statement of values. Update your harassment prevention/professional conduct policy, investigative notebook and harassment prevention training to include all forms of disrespectful conduct and protected status individuals. 

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and can be contacted at or 334-246-2901. Blog at

Friday, February 23, 2018

Who has your Company's Dirty Laundry?

Manheim Remarketing hired Qunesha Bowen as an automobile detailer, and three years later promoted her to arbitration manager. Bowen replaced a male arbitration manager who was paid $46,350 during his first year as arbitration manager. But Bowen’s starting salary was set at $32,000 and her salary did not reach $46,350 until her sixth year as arbitration manager.

After learning about the pay disparity with her male predecessor, Bowen sued Manheim in Federal Court under the Equal Pay Act and Title VII. Bowen offered in support of her claims: (1) documents and testimony about her performance and salary history; and (2) affidavit testimony from Manheim’s HR Manager. The Court Order detailed the alleged facts below:

Bowen offered documents and testimony showing that, although she was an effective arbitration manager, her salary for a few years was below the minimum salary for arbitration managers and it was consistently well below the midpoint salary for arbitration managers. Manheim paid Bowen $37,001.60 in 2007; $41,000 in 2008; $46,075.63 in 2010; and $46,075.63 in 2011. But under Manheim’s compensation guidelines the midpoint salary for an arbitration manager was $49,400 in 2007; $52,900 in 2008; $55,500 in 2010; and $56,500 in 2011.

However, it was the affidavit of Manheim’s HR Director concerning her investigations into sex-based pay disparities at Manheim that turned the tide in Bowen’s favor:
  •  Comments from a 2007 employee survey that the HR Director conducted indicated that female employees were treated differently than male employees, (2) female employees were denied particular positions, and (3) a “good ole’ boy” system existed at Manheim.
  •  The 2007 survey results prompted the HR Director to conduct an investigation into sex- based disparities at Manheim where she gathered all of Manheim’s job postings and examined who applied and who interviewed for posted positions. Based on that review, she concluded that Manheim was excluding women from certain positions. While discussing a female employee’s application for an assistant general manager position with the general manager, she was told that Manheim would be “the laughing stock” of the community if it made such a hire and that he would never allow a female to work as a mechanic.
  •   In 2009, Manheim’s payroll administrator then ran a report comparing women’s and men’s pay and prior pay increases. This investigation revealed that women’s pay was “thousands of dollars less than men’s pay for the same jobs.”
  •    The HR Director reported her findings about sex-based pay disparities to the general manager, but he refused to address the disparities.

This week the 11th Circuit Court of Appeals in Atlanta ruled that there was sufficient evidence to send Qunesha Bowen’s Equal Pay and Title VII case before a jury.

Common Sense Counsel: Employee Engagement Surveys are wonderful tools in the right hands but can be deadly to an organization when used by a frustrated HR Director. First, never conduct an employee engagement survey unless you, in good faith, plan to take action that will make a difference. Second, always conduct surveys and investigations of a sensitive nature under attorney-client privileged direction, or your company’s dirty laundry just might make the news!

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and can be contacted at or 334-246-2901. Blog at

Friday, February 16, 2018

How to Breach a Gag Agreement

On the heels of Dear Dr. LOVELESS Valentines HR Edition last week, the burning question this week is; does Stormy Daniels get to spill the beans on her alleged affair in 2006 with Donald Trump? Despite the fact that she was under a non-disclosure agreement? Maybe yes, and maybe no. It may depend on what the agreement actually said.

Quick recap: In 2016, The Wall Street Journal reported that porn star Stormy Daniels was paid $130,000 during the 2016 presidential campaign to keep quiet about an alleged sexual relationship with Donald Trump that took place in 2006. The WSJ story blew up again more recently. Ms. Daniels had talked about the alleged relationship before 2016, but she'd kept quiet since entering into the agreement.

This week, President Trump's personal legal counsel, Michael Cohen, disclosed that he (Mr. Cohen) is the one who paid the $130,000 to Ms. Daniels, out of his own funds, and that neither the Trump Organization nor the Trump campaign paid it, either directly or indirectly. (Yeah, I know.)

So now Ms. Daniels is saying she is no longer bound by the NDA in her agreement because Mr. Cohen violated it first. Is she right?

To be able to answer that question, we'd have to see the NDA. If it says only that neither party (or their representatives) will discuss the agreement or the situation that resulted in the agreement, with no exceptions, then she may be correct.

But many NDAs (including all that are drafted by me) make an exception for truthful disclosures that are required by law, or are disclosed pursuant to a subpoena or a government investigation. This is important because some say that the payoff to Ms. Daniels may have violated federal election laws. Although Mr. Cohen released a statement to The New York Times, it was apparently in connection with his formal response to a complaint about the payoff that was filed with the Federal Election Commission. The FEC complaint has been in the news since at least January, so that cat has been out of the bag for a while.

If Mr. Cohen made the media statement in connection with his response to an FEC investigation, and if the FEC investigation had already been made public by someone other than himself or anyone on the Trump team, and depending on the applicable exceptions (if any) to the NDA, then Mr. Cohen may not necessarily have breached the NDA. Which means that Ms. Daniels might still be bound by it, too.

Ms. Daniels claimed on Valentine’s Day to have a "Monica Lewinsky dress" that she is going to have DNA-tested. You will recall that the stained navy-blue GAP cocktail dress of Ms. Lewinsky is still considered one of the most famous articles of evidence in history.  Ms. Daniels claims that the shimmering gold mini dress with a plunging neckline was kept in pristine condition after her alleged 2006 sexual encounter with Trump at the Lake Tahoe hotel suite. Ms. Daniels is reportedly planning on having the dress forensically tested to search for any DNA that proves she isn’t lying about her tryst with Trump, including samples of skin, hair or … anything.

Common Sense Counsel: Be careful what you sign and be careful what you say. And save the evidence.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and can be contacted at or 334-246-2901. Tommy’s Law Partner Robin Shea is Dr. Loveless and the Stormy Daniels story author.

Monday, February 5, 2018

Why Quash the FISA Surveillance Warrant?

As a follow-up to the OA News AP Sunday article “Trump claims memo totally vindicates him,” the FISA Memo released last week revealed what some might call prosecutorial misconduct by the FBI or DOJ attorneys who signed the FISA surveillance warrant application on Trump advisor Carter Page. The FISA Court is actual composed of seven rotating United States Court District Judges from various regions of the country all appointed by U.S. Supreme Court Chief Justice John Roberts for a seven year term. Once a quarter, for one week, one of the seven will come to the Washington to hear a FISA warrant application for surveillance related to national intelligence. From news reports, four different FISA Court Judges heard FISA applications concerning Carter Page, most likely presented by the same FBI or DOJ attorneys. If in fact, as alleged in the FISA Memo, the FBI or DOJ attorneys failed to fully disclose to the FISA Judge that the source was not creditable, bias, political opposition research, etc. then all four FISA warrant applications can be retroactively challenged on a Motion to Quash. At that point all four District Court Judges who ruled could meet collectively to hear the Motion to Quash. If granted, all the “Fruits of the Poisonous Tree” in any manner related to the improperly granted FISA surveillance warrants would become of no legal significance.  A Federal District Judge who believes an attorney was concealing facts or bias of a source, especially in a probable cause hearing, can take a number of steps to correct the injustice. It appears the FISA Memo was released to give the FISA Court a process to begin that Motion to Quash challenge, or cause Chief Justice John Roberts to take the bull by the horns in his capacity as the FISA Court judicial appointing authority, to shine a bright light sua sponte (on his own accord).  If that happens, look for an argument by the Trump and DOJ lawyers that the Robert Muller appointment was one fruit of that poisonous tree.

Tommy Eden is an attorney who lives in Auburn and a guest Columnist to the OA News. 

Friday, February 2, 2018

Vertigo Disability – How to Win a Difficult Case

Susan Morris-Huse worked at Geico as a TCR I Supervisor, an individual who supervises the processing and settling of claims in a telephone claims unit. She was diagnosed with Meniere’s Disease, a disease of the inner ear, in the mid 2000s and for about a decade took intermittent disability leave when the disease. It would flare up causing her “random attacks of vertigo, and nearly chronic bouts of dizziness and imbalance,” according to her lawsuit filed in Federal Court in Tampa.

After undergoing a procedure in 2013, her doctor wrote to Geico recommending that Huse be allowed to work from home because she could not “reliably drive long distances and do things that required walking up and down stairs.” Geico, in response, arranged for her to carpool with co-workers, allowing her to avoid climbing stairs and providing her a few offices spaces for her to rest should her symptoms act up, but did not let her work remotely.

Huse returned to work using the ride-share system and was able to make her shifts for several months until she transferred to a different office where she did not have to drive as far to work. But she could not work after June 2015 and went on long term disability. In 2016 Huse filed suit alleging that Geico did not accommodate her disability under the ADA. The Federal Judge ruled on Tuesday that the accommodations Geico provided Huse were reasonable, even if they weren’t the accommodations she preferred, and dismissed her lawsuit.

Common Sense Counsel: The ADA requires employers to provide “reasonable accommodations” that allow workers to overcome disabilities and perform their jobs so long as these accommodations do not impose an “undue hardship” on the business. The Judge held in this case it was enough that Geico arranged for her to get rides with co-workers and did not require that she climb stairs. The Judge added that telework was not a reasonable accommodation in this case because Huse’s job required that she provide in-person guidance to the workers she supervised and monitor their calls using software available only at Geico’s offices; ruling that “The undisputed evidence demonstrates that Huse held an interactive job, that used technology available only at the office locations, and which required her to have a regular, physical presence.” The federal judge’s analysis of Huse’s written Geico job description as a TCR I Supervisor was critical to the favorable outcome for Geico in this case. Never underestimate the value of a well drafted, legally compliant job description, and wise legal counsel on patiently handling disabled workers. Preventive preparation and patience can keep you from getting dizzy when the lawsuit arrives.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and can be contacted at or 334-246-2901. Blog at www.alabamaatwork Geico was represented by Tommy’s Partner’s Angelique Groza Lyons and Sean Douthard.

Wednesday, January 17, 2018

Finding 21st Century High-Potential Employees

Henry Ford once said, “The only thing worse than training your employees and having them leave is not training them and having them stay.” Scientific studies suggest that hiring in the right people will maximize the company’s returns. It has long been understood that a small proportion of the workforce tends to drive a large proportion of the results. Talented employees are “force multipliers”, raising the performance bar for their colleagues, and their direct reports. By word and deed, they model and teach winning behaviors that shape high-performing cultures. Science reveals that regardless of the job or industry, such individuals tend to share a range of measurable qualities, which can be identified fairly early in the process. The 21st century workforce needs these 3 qualities to succeed and thrive.

1) Demonstrate Ability To Do the Job: Can the person demonstrate the knowledge and skill it takes to perform the key tasks that make up the job. The single-best predictor of future job success is the proven ability to perform those job skills in the past.  Have the person provide a work sample or observe the candidate actually performing the tasks that make up the job. For more complex leadership jobs, the question shifts to how likely an individual is to be able to learn and master the requisite knowledge and skill. Learning ability, typically measured by IQ, includes a substantial cognitive component but also the motivation to pick up new knowledge and skills fast and flexibly. Strategic thinking, vision, creativity and imagination, as well as an entrepreneurial mindset and the ability to adapt an organization for the long-term future.
2) Possess Emotional Intelligence: This involve two fundamental abilities: the emotional intelligence ability to manage oneself and the ability to manage others. Employees likely to succeed in leadership roles, and more complex jobs are first able to manage themselves. Can they calmly handle increased pressure, deal constructively with adversity, and act with dignity and integrity. Secondly, they have the social and emotional intelligence to establish and maintain cooperative working relationships, build a broad network of contacts and form alliances, and be influential and persuasive. Emotional intelligence can be assessed by psychometric tests and further refined through training and development.
3) Possesses Drive and Resilience: it is the will and motivation to work hard, achieve, and do whatever it takes to get the job done. This is identified as work ethic and ambition. This is the accelerator that multiplies the potential influence of ability and social skills on future success. Drive can be assessed by standardized tests that measure conscientiousness, achievement motivation, and ambition. Behaviorally it is how hard an individual works, willingness to take on extra duties and assignments, eagerness for more responsibility, and even readiness to sacrifice.
Common Sense Counsel: if you bet on those who Demonstrate an Ability To Do the Job, Possess Emotional Intelligence and Possesses Drive and Resilience you will end up with a higher proportion of future stars who will contribute disproportionately to the organization.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, and can be contacted at or 334-246-2901. Blog at

Friday, January 12, 2018

EMPLOYERS BEWARE, AND BE READY: How to prepare for an ICE raid

On Wednesday morning, officials from U.S. Immigration and Customs Enforcement inspected nearly 100 7-Eleven stores across the country, and arrested 21 employees for being illegally present in the United States. This is believed to be the Trump Administration’s largest immigration enforcement operation against an individual employer to date. The 7-Eleven raids and others are consistent with the Trump Administration’s announcement last October of its intention to increase significantly enforcement of the immigration laws in workplaces.

This week’s raids bring back memories of a March 6, 2007, ICE raid at Michael Bianco, Inc., a leather factory and government contractor in New Bedford, Massachusetts. As a result of that raid, 361 illegal workers were arrested and some were detained at a facility in Texas. Michael Bianco, the owner of the company, was sentenced to 12 months and a day in federal prison, plus three years of supervised release. He was also required to pay a $30,000 fine for helping to harbor and conceal illegal immigrants.

This new policy of arrests and enforcement has produced results. There were nearly 30,000 more non-border ICE arrests during the first fiscal year of Trump's term, which ended on September 30, 2017, than during all of fiscal year 2016.

Common Sense Counsel: What does this new Trump policy mean for employers? For violations a civil penalties could reach $21,563 for each person illegally employed; and for violations of simple recordkeeping, civil penalties could reach $2,156 for each I-9 Form containing substantive violations or uncorrected technical violations. The best strategy for employers is to have their house in order before ICE shows up unexpectedly. The following steps are recommended:

1) Conduct periodic self-audits of your I-9s and practices, and review any deficiencies or corrective action with immigration counsel. Particular attention should be given to cases where concerns are raised about the legal status of the employee despite the I-9 documents presented by the employee.
2) Prepare yourself by having a procedure to follow if and when ICE agents arrive. The front desk personnel need to be trained about who is to be contacted, and they should know not to provide any other information to ICE. The employer’s procedure also should include who is to be the employer’s lead contact with ICE.
3) Know where your I-9s are maintained. Although employers have three business days to provide the I-9s, that time can pass quickly if the documents cannot be located or if the I-9s are in an off-site location.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, and can be contacted at or 334-246-2901. Will Krasnow in the Constangy Boston office drafted this excellent update. Blog at