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Friday, October 30, 2015

Top 10 EEOC Litigation Hot Buttons

EEOC General Counsel David Lopez

By: Robin Shea,
Constangy Partner in Winston-Salem, North Carolina

This information is a summary of a more extensive blog post by my law partner Robin Shea who attended a talk by the EEOC General Counsel David Lopez who provided this information with permission for her to share. Top 10 in reverse order:

10. Racial harassment. The EEOC had scored some big wins in this area, generally when the racially offensive behavior was blatant. “Juries don’t like this kind of behavior,” he said, even in parts of the country that you might expect to be more “red” than “blue.”

9. Use of background screens in hiring. The agency won a big settlement in its criminal background check lawsuit against BMW and the agency had “started a conversation” about the use of this information, noting the growing number of states that have adopted “ban-the-box” legislation.

8. Sex discrimination in hiring. The agency is aggressively going after claims of discrimination in the hiring process in heavy manufacturing environments, where women were rejected for positions based on the belief that they could not handle the physical requirements of the job.

7. Preservation of access to the legal system, aka retaliation. The EEOC was winning about 70 percent of its jury trials on retaliation claims.

6. Immigrant/migrant/vulnerable workers. Mr. Lopez spoke of the EEOC’s desire to protect workers “living in the shadows,” and noted that some employers believe they can evade the law because of linguistic and cultural barriers.

5. Americans with Disabilities Act/reasonable accommodation. Mr. Lopez spent most of this topic talking about the EEOC v. Ford Motor Company telecommuting case involving an employee with severe irritable bowel syndrome.

4. LGBT rights. Mr. Lopez said that the EEOC’s position is that sexual orientation discrimination always violates Title VII, and also spoke on the issue of bathrooms and transgender individuals.

3. Pregnancy. This is obviously a very hot area after the Young v. UPS case. Mr. Lopez said that many employers (smaller ones) still don’t know that “Yes, pregnancy discrimination is against the law,” and the Young case was a “game-changer,” and will result in more jury trials.

2. Conciliation requirement. Mr. Lopez said that after the EEOC won the Mach Mining case at the Seventh Circuit (which said that the courts had no authority to review the EEOC’s conciliation efforts). The victory for the EEOC, though, was that if the EEOC doesn’t fulfill its obligations, the court just tells the EEOC to go back and conciliate rather than dismissing the lawsuit.

1. Religious accommodation. “This is number one in my heart,” Mr. Lopez said. He was talking about Samantha Elauf, in the EEOC’s case against Abercrombie & Fitch.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and Robin Shea is in the firm's Winston Salem, NC office. Tommy can be contacted at or 334-246-2901. Blog at with link to full blog post by Robin Shea.

Thursday, October 22, 2015

Lactating Mother’s Revenge

By Thomas Eden

Stephanie Hick was hired in 2009 by the Tuscaloosa Police Department as a patrol officer on the West Alabama Narcotics Squad and worked temporarily as an undercover agent. Hicks learned that she was pregnant on January 6, 2012, and informed her Captain and asked what the policies were for pregnant employees. She was informed that no policies were in place for pregnant employees and the Chief stated that it was at the discretion of her supervisor, as reported in a Federal Judges Order.

On August 8, 2012, before going off on leave, Hicks received her annual evaluation and her overall performance was evaluated as "exceeds expectations." Hicks then took 12 weeks of FMLA beginning mid August 2012, for the birth of her child and on November 26, 2012 returned to duty.

Within an hour of beginning her first day back at work, Hicks was called into the Captain’s office to speak with him and a Sergeant, where she was told that she was being written up in the form of an "informal counseling" for allowing her vehicle to go 1200 miles over the limit for recommended oil changes without changing the oil and for continuing to obtain multiple warrants for individual defendants.

Hicks also discussed with the Captain and Sergeant in this same meeting that she was breastfeeding her new child. The Captain informed Hicks that the police station did not have a pumping area similar to the lactation rooms at City Hall. Hicks asked if she could use the records room to express breast milk, but the Captain indicated that Hicks should use the locker room.

After the meeting, Hicks overheard the Captain and Sergeant discussing wanting to "get rid of that little bitch" and that they would find "any way" they could to do so, along with other more colorful references to Hicks.

Reluctantly, Hicks expressed breast milk in the police locker room at work roughly twice a day, and every time Hicks expressed breast milk at work, someone entered the locker room.

Hicks was reassigned and demoted to a less desirable unit in December 2012, after only six days back on the job. She was also required to be on patrol and to wear a bullet-proof vest. On her doctor's orders, Hicks requested a desk assignment because wearing the vest would “impede milk production or cause infection.” Her request was denied and she was given the choice of wearing a larger vest or working without one, the Judge wrote.

Hicks resigned in January 2013, and filed suit against the City under Title VII of the 1964 Civil Rights Act, the Family and Medical Leave Act and state law. A Federal Magistrate Judge in the Northern District of Alabama on Monday ruled her allegations sufficiently stated a triable claim to submit to a jury on pregnancy bias, leave interference, and constructive discharge claims. The “fact that the plaintiff could ‘work-around' the fact that she was not provided a private place to pump [breast milk] at her place of work does not absolve the defendant of its failure to provide her with such a location, as required”, the Judge noted.

Common Sense Counsel: It's unlawful to take adverse employment actions against an employee because she insists on her right to take a break and lactate or for expressing breast milk at work. The Judge’s 45 page opinion is a trail of facts on how to botch a female’s return from pregnancy leave. And with most adverse employment decisions, bad timing is the mother’s milk upon which substantial verdicts rest.

Friday, October 16, 2015

The Devil Made Me Do It


By Thomas Eden

CorpCar is a limousine service company in Houston, Texas who employed Homer Randle as a chauffeur and James Henry as a chauffeur and trainer. In the spring of 2009, various African-American CorpCar employees asked for time off for June 19th, known as "Emancipation Day" or "Juneteenth"—a holiday officially recognized by the State of Texas that commemorates the 1865 announcement in Texas of the abolition of slavery. Approximately 75% of CorpCar's chauffeurs were African-American.

CorpCar scheduled multiple safety meetings for June 18th, 19th, and 20th and required their employees to attend at least one of the meetings. Some of CorpCar's employees expressed disappointment at the scheduling of the meetings on and around the Juneteenth holiday. CorpCar's CEO hired a singing telegram to perform, in costume, at the mandatory meetings.

To the surprise of the employees in attendance, a white woman in a black gorilla suit entered the meeting. The door was closed behind her and a manager stood as if to guard the exit. The woman in the gorilla suit sang, danced, touched employees, and sat in their laps. She did Tarzan yells and repeatedly referred in a suggestive manner to "big black lips," "big black butt," and bananas. This went on for approximately ten minutes while the managers were all seen laughing as a CorpCar employee videoed the performance, later posting it online to YouTube.

The woman in the gorilla suit specifically directed part of her performance at Henry as she called him by name and started approaching him while the manager, who was also videoing with his cell phone, leaned in to Henry and stated, "Okay. Here's your Juneteenth." The performer then said to Henry, "James, are you ready for this? Here's your Juneteenth. Oh, these nice big black hairy lips. Don't you want some? Oh, that nice banana in your pants. You could have worked for La Bare's. Oh, don't you want to make me scream." Management explained that the gorilla performance was intended to raise morale and lighten the mood.

A federal court jury later found for Plaintiffs James Henry and Homer Randle on their Title VII hostile work environment claims against CorpCar and also found for Henry on his Title VII retaliation claim, awarding them approximately $200,000 (mostly punitive damages) and the judge approved approximately  $125,000 in attorney fees. The United States Fifth Circuit Court of Appeals in January 2015 affirmed the award.

Common Sense Counsel:  You may recall the famous line by comedian Flip Wilson “The Devil Made Me Do It” as he dressed up as Geraldine Jones, whose boyfriend was “killer” (find it on YouTube).  Learn from this real case that humor at the expense of a protected minority can be an expense and painful laugh. The only thing funnier is that CorpCar attempted to appeal the case to the United States Supreme Court and its appeal was denied.

Tommy Eden is a partner working out of the Constangy, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at

Saturday, October 10, 2015

Mary Jane Has Come Along Way Baby

By Tommy Eden

19 years after voters made California the first state in the nation to legalize the medical use of marijuana, Governor Jerry Brown on Friday October 9, 2015 signed a package of 3 bills to regulate the California medicinal-cannabis industry: Assembly Bill 266, Assembly Bill 243 and Senate Bill 643. In 1996 California voters approved Proposition 215, the law that made it legal for doctors to recommend pot to their patients.

The stated purpose of the legislation known as the Medical Marijuana Regulation and Safety Act establishes the Bureau of Medical Marijuana Regulation along with comprehensive regulations in California for licensing, taxation, quality control, shipping, product packaging and pesticide standards. The laws are scheduled to go into effect in 2018. It is highly anticipated that one or more measures to legalize the recreational use of marijuana will be on the 2016 California ballot.

Common Sense Counsel: So what should an employer who has employees assigned to work in a medical marijuana State like California do? Consider these 7 Steps an employer can take to successfully walk the workplace marijuana tightrope and keep your workplace from going up in smoke:

1. Understand the laws on Medical and Recreational Marijuana that are specific to states where employees report for duty;
2. Adopt a legally vetted pre-duty prescription medication and impairing effects substances safety policy;
3. Update employee job descriptions to cover critical safety sensitive issues;
4. Adopt a handbook policy on reasonable accommodations in those more difficult states and situations;
5. Let employees know your stance on Medical and Recreational Marijuana use;
6. Update your drug-free workplace policy and forms; and
7. Conduct Supervisor Reasonable Suspicion Drug and Alcohol Training and Employee Awareness sessions with a specific emphasis on the workplace dangers of Marijuana use and misuse.

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at and follow on twitter @tommyeden3

Friday, October 9, 2015

Marijuana Growers Dirty Secret

By Tommy Eden

In what I believe to be the first case of its type in the United States, Flores, a Colorado recreational marijuana user, and Larravee, a medical marijuana user, filed a purported class action in Colorado state court against LivWell, Inc., a large grower and distributor of recreational and medical marijuana in Colorado.  They allege that LivWell treated its marijuana crop with Eagle 20, a fungicide which was not on the Colorado Department of Agriculture's list of approved pesticides or fungicides at the time of its use. 

Eagle 20 is systemic and as such even though the marijuana may test negative the chemical is inside the cells of the plant.  When burned, Eagle 20 breaks down and releases hydrogen cyanide, a dangerous poison.  Their Complaint alleges claims for breach of contract, breach of the implied covenant of good faith and fair dealing, breach of express warranty, breach of implied warranty for fitness for a particular purpose, breach of implied warranty of merchantability, fraud by misrepresentation and omission, unjust enrichment and civil conspiracy. 

Flores and Larravee allegedly suffered damages in the form of monies overpaid for marijuana that was worth less than it otherwise should have been had the marijuana not been treated with Eagle 20.  Significantly, there is no allegation that either named plaintiff suffered physical injury.

LivWell was one of a number of growers whose marijuana plants were quarantined by the Denver Department of Environmental Health in March and April over concerns that they were treated with pesticides.  City Health Officials later released the plants after tests showed allowable levels of chemicals.  Because marijuana is still illegal at the federal level, the federal government has not provided any guidance on which pesticides or fungicides can be labeled for marijuana use.  The lack of any physical injury to the named plaintiffs likely accounts for the fact that they chose to pursue contract rather than tort claims. The case is Flores v. LivWell, Inc. 2015-CV-33528 (District Court, Denver County, Colorado)

Common Sense Counsel: as I commented in my most recent article concerning marijuana, smoking it is evidence of a special kind of stupid. Now I am giving you additional ammunition to share with your workers, family and friends as to why marijuana use may be particularly hazardous to their health.  The user is basically smoking a poison found inside the plant cells. They don't call it weed for nothing. Hopefully your warning message will not go up in smoke.

Tommy Eden is a partner working out of the Constangy, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at I wish thank Bill Nelson who practices law in Colorado Springs, Colorado with Lewis Roca Rothgerber LLP for bringing this case to my attention and helping me draft this column.

Friday, October 2, 2015

Caught with His Pants Down Justifies Termination

By: Thomas Eden

In October 2010 Horizon's Human Resources Manager in Puerto Rico, received an anonymous e-mail alleging that Vladimir Pérez had indecently exposed himself. Attached to the e-mail was a photograph depicting a man from the waist down fully exposing his lower-torso. The female manager also received what was purported to be the top half of the same photograph. That image depicted a man's upper torso and face, identifiable as Pérez. It appeared from the background that the photograph must have been taken in the dock's Marine Building, but was likely a year old. 

When confronted, Pérez admitted that the upper-torso photograph was of him, but denied that the lower-torso photograph depicted him. Horizon placed Pérez on paid administrative leave following the meeting. 

Over the next ten days, a manager interviewed several of Pérez's co-workers about the photographs. One co-worker admitted to taking both photographs and stated that they were of Pérez. Other Horizon employees either identified Pérez as the individual depicted in the lower-torso photograph or stated that they had heard about the photograph and had been told that it depicted Pérez. In addition, employees recounted a number of other occasions when Pérez had allegedly exposed himself to his co-workers in the workplace. Employees also described a general atmosphere of sexually-charged horseplay among Horizon's employees, in which Pérez participated.

The Company decided to terminate Pérez's employment, and he was informed by letter stating the “based on the evidence obtained, the company had determined that he had exhibited behavior on numerous occasions in strict violation of Horizon Lines' Code of Business Conduct Policy." Pérez sent e-mails requesting additional information and contesting the employment decision, but never alleged he himself had been subjected to sexual harassment.

Pérez later filed a sexual harassment charge with the Equal Employment Opportunity Commission, and then filed a complaint in federal court asserting sexual harassment and gender discrimination claiming that his female manager did the following to him: 1) attempted to drag him to the dance floor with force by taking him by the arm and pulling him; 2) placed his car key down her pants and did not return them for an hour while at a company softball game; 3) did a sea shell reading while touching his arms in a sexually suggestive fashion; and 4) requested that he bring to her office daily hot cornbread and pastries. 

The Federal Judge was not impressed and granted Horizon summary judgment dismissing on all claims and holding that no reasonable jury could conclude that those requests were sufficiently severe or objectively offensive to prove actionable. This week the First Circuit Court of Appeals agreed and affirmed the dismissal. 

Common Sense Counsel: for Alabama employers sexual harassment is no laughing matter. There is no substitute for a well drafted written policy against harassment of all types, distribution of the policy with a signed employee acknowledgment, awareness training on the policy and a procedure to investigate and resolve complaints. And do not allow romantic involvement between a manager and supervised employees under any circumstance to continue, or allow sexual horseplay in the workplace, or risk an equally embarrassing outcome. 

Tommy Eden is a partner working out of the Constangy, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at