Co-worker Harassment Leads to $150K Jury Verdict and $69K in Attorney Fees Despite Only $3K Wage Loss.

 Last month, the Loraine County Court of Appeals affirmed a jury verdict of over $150K in compensatory and punitive damages for co-worker sexual harassment, constructive discharge and negligent supervision claims as well as almost $69K in attorney fees.  Morgan v. Consun Food Industies, Inc., 2024-Ohio-2300.   The plaintiff proved that she was treated differently when her complaints were ignored and when she was disciplined for misconduct while male employee misconduct on the same evening was ignored.  “[H]arassing conduct that is simply abusive, with no sexual element, can support a claim for hostile-environment sexual harassment if it is directed at the plaintiff because of his or her sex.” Further, management’s indifference to her complaint and failure to address incidents with the harassing employee destroyed its affirmative defense.

According to the Court’s opinion, the plaintiff was hired in September 2011 and was subjected to harassment by a male co-worker.  She complained to management and resigned in May 2012 when insufficient action was taken.  During the nine-day jury trial, she testified how this male co-worker terrorized her, other female employees and female guests.  For example, she became extremely upset after an incident when she looked over at him, and he responded: ““what the fuck are you looking at, you fucking bitch[.]” She complained to the supervisor and he said it was just how he was.  He also elbowed her, followed her around making mocking comments, and threw hot food at her, burning her hands.  He also “made comments about “breasts,” “cow udder tits,” and aborting babies, which were all comments directed toward women and not men.”  The store manager told her that he did not have time to discuss her complaint about the co-worker.  In April, shortly after the co-worker had left for the day, she found a large knife stabbed into the box of cleaning gloves that she used.  The shift leader was unconcerned, but she called the police and reported the incident.  The next morning, she was written up and put on a performance plan for failing to refrigerate hot food the prior evening, which the store manager noticed when he reviewed surveillance film.  He said nothing about the knife incident, which should also have been on the film.  The following month, the co-worker continued to follow her in the store and she resigned without first having found another job.  Two female co-workers corroborated her accounts and added that the store manager laughed at the co-worker’s behavior.

                  The Court held that the two-year limitations period for torts would not be applied to the negligent supervision claim because the underlying facts were closer to the discrimination and harassment claims, which were then subject to a six year limitations period.

                  The Court also agreed that the plaintiff had shown discriminatory treatment when she was disciplined for failing to refrigerate hot food on the same night that her male co-worker had stabbed her box of cleaning gloves, prompting her to call the police and report it.  (The employer did not refute any of her allegations or put on any witnesses to dispute testimony of the plaintiff or her witnesses).   The Court found additional evidence of disparate treatment when the store manager addressed a male employee’s complaint about that employee, but accepted his denial at face value without any other investigation when female employees complained about him and failed to take any corrective action. 

The plaintiff showed that his harassment was unwelcome:

Not only did [the plaintiff] testify that [her co-worker’s] behavior was unwelcomed, she also demonstrated it was unwelcomed by avoiding  [him], complaining to her co-workers, complaining to [the store manager], contacting  . . .  the corporate office, and calling the police.

She proved that it was harassment based on sex through various comments that he made which were directed only at women and the fact that his harassment was directed only at female employees and guests.   For instance, “one elderly woman asked her where the restroom was [and he] overheard the exchange and told the elderly woman she could “piss outside by the dumpsters.”” 

Another witness testified that he

 “would say things like women are meant to be in the back and guys are in the front, and women are only good for sex[.]” She also testified Mr. Wise “would always talk about our breasts, or our butts. Anything sexual, he said[,]” and added the comments were “[t]hings that typically you shouldn’t say to women * * * [but were] laughed at by [assistant store manager] Mark and [store manager] Rich.” Ms. Green added that “the guys were allowed to say whatever they wanted. * * * There were no consequences for derogatory statements with any of my managers to my knowledge.”

The plaintiff also proved that the harassment was sufficiently severe and pervasive to affect her ability to work:

[The plaintiff] testified to the toll that [his] daily harassment and abuse took on her and how Consun’s management’s failure to take any action to stop or acknowledge her complaint made the situation worse for her. [She] testified to three separate incidents where [his] harassing conduct was directed at specifically her, the incidents were reported to her shift lead or management, and no further action was taken by store management. [She] testified to the incident where [he] called her a ”fucking bitch” and she was “shaking” and “frightened[.]” After the incident, [her] friend brought her medication to the store to help calm her down. [She] also testified [he] threw a five-pound bag of steaming hot mashed potatoes at her, causing burns to her skin. Additionally, [she] testified to finding the long knife stabbed into her box of gloves during an evening where [he] was only one of two other employees left in the store.

Finally, the Court rejected the employer’s defense that it did not know about the harassment when she only complained one time to the store manager.  At that time, the manager said he did not have time to deal with her and refused her request to be scheduled away from the hostile male employee.   She had also complained to her shift supervisors and to the corporate office.

                  The Court also agreed that it was proper to admit an expert to testify as to the standard of care that an employer should take when an employee complains about harassment and the type of anti-harassment training and policies employers should utilize.

                  The Court also found no abuse of discretion when the trial court rejected the plaintiff’s attorney fee request from over $248K in hourly fees to $69K based on the 45% contingency fee agreement with the plaintiff and the fact that the attorney took five years to try a case that could and should have been tried in 2016.

                  The Court also affirmed the denial of prejudgment interest on the grounds that the employer engaged in good faith discovery and was not required to offer more than $15K in settlement if that is how it reasonably evaluated its potential liability.    For instance, the plaintiff only lost less than $3,000 in wages after immediately finding a new job.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Franklin County Court of Appeals Holds Res Judicata Did Not Bar Retaliation Claim Previously Brought under Ohio Law in Federal Court

 At the end of June, the Franklin County Court of Appeals affirmed in part and reversed in part an employer’s summary judgment on a retaliation claim which had previously been dismissed in federal court on the grounds that the plaintiff employee had failed to file an EEOC Charge and exhaust his administrative remedies.  Blank v. Nationwide Mutual Ins. Co., No. 2024-Ohio-2500.  The plaintiff had pointed out to the federal court on appeal that he had filed the claim under state law and, thus, was not required to exhaust any administrative remedies at the time he had filed his lawsuit. Although the dismissal was affirmed by the federal appellate court, the Court of Appeals found the dismissal was not based on the merits, and thus, would not have res judicata effect on the same claim that he refiled in the common pleas court. 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Reverses Dismissal of Applicant’s Religious Discrimination Claim Against Healthcare Employer that Required COVID Vaccine.

Earlier this month, the Sixth Circuit reversed an in-home medical care employer’s judgment dismissing a job applicant’s Title VII complaint that she was rejected for employment on account of her religious belief to refuse the COV ID vaccination. Lucky v. Landmark Med. of Mich., P.C., No. 23-2030 (6^th Cir. June 12, 2024).   The Court found that she had sufficiently pled “her refusal to receive the vaccine was an ‘aspect’ of her religious observance or belief.”  “It is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretations of those creeds.” Courts are not at the pleading stage to evaluate ”the plausibility of a religious claim.”  Her complaint’s “allegations would support an inference of religious conduct for a person of any faith.”

According to the Court’s opinion, the plaintiff job applicant had alleged in her Complaint that she had been recruited for a management position with the medical employer and discussions had begun about her starting salary.  However, when she admitted that she had not been vaccinated against COVID on account of her religious beliefs (after having prayed on it and God told her not to get vaccinated), it was explained that 10 other candidates had already been rejected for refusing the vaccination and the employer would not accommodate her religious objection.   When she filed suit for violation of Title VII, the court dismissed the complaint on the grounds that she had failed to state a claim because her non-denominational beliefs did not have a specific tenet prohibiting vaccination. The Sixth Circuit reversed and found that she sufficiently pled a religious belief because she

pled facts supporting an inference that her refusal to be vaccinated for Covid was an “aspect” of her “religious observance” or “practice” or “belief.” 42 U.S.C. § 2000e(j).  . . . [She] pled that she is “a non-denominational Christian” who believes she “should not have any vaccination enter her body such that her body would be defiled, because her body is a temple.”  . . .  She also pled that she “seeks to make all decisions, especially those regarding vaccination and other medical decisions, through prayer.”  . . . . She pled further that—as to the Covid vaccine in particular—“God spoke to [her] in her prayers and directed her that it would be wrong to receive the COVID-19 vaccine.”  . . . And she pled that, as a result of her beliefs, she refused to receive the vaccine.  . . .

Those are allegations of particular facts—she prayed, she received an answer, she acted accordingly—rather than what the district court called “naked assertions devoid of further factual enhancement.” Moreover, she alleged that she has a religious objection to vaccines of any kind.  . . . . No further “enhancement” was necessary: [Her] allegations were almost self-evidently enough to establish, at the pleadings stage, that her refusal to receive the vaccine was an “aspect” of her religious observance or belief.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

PWFA Regulations Expand Employer's Reasonable Accommodation Obligations Beyond the ADA

 As reported in April, the EEOC has finalized its regulations at 29 C.F.R. §§ 1636.1 et seq.,  implementing the Pregnant Workers Fairness Act,  42 U.S.C. 2000gg et seq, which was enacted at the end of December 2022.  The EEOC was directed to promulgate regulations and they became effective on June 18.   While there is some litigation pending which is challenging the requirement to accommodate elective abortions (in contrast to abortions necessary for the life or health of the mother), the remainder of the regulation is in force.  Today, I shall address mandatory reasonable accommodations which must be discussed with the employee and offered before an employee is forced to take a medical leave of absence.  Unless the employee seeks leave as an accommodation, it is considered to be the accommodation of last resort and no accommodations can be forced on an employee. 

 

Under the PWFA, “[i]t shall be an unlawful employment practice for a covered entity  to--

        (1) not make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity;

        (2) require a qualified employee affected by pregnancy, childbirth, or related medical conditions to accept an accommodation other than any reasonable accommodation arrived at through the interactive process referred to in section 102(7);

The term, “’qualified employee' means an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position, except that an employee or applicant shall be considered qualified if--

            (A) any inability to perform an essential function is for a temporary period;

            (B) the essential function could be performed in the near future; and

            (C) the inability to perform the essential function can be reasonably accommodated . . .

The regulations clarify that “temporary period” and “near future” generally means as many as 40 weeks, but is not indefinite or permanent.   The 40 weeks is based on the length of a typical pregnancy, but post-partum conditions must also be accommodated and temporary may have a different -- and longer -- meaning in such cases.   

the Commission recognizes that employees may need an essential function(s) temporarily suspended because of a current pregnancy; take leave to recover from childbirth; and, upon returning to work, need the same essential function(s) or a different one temporarily suspended due to the same or a different physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. In keeping with the requirement that the determination of whether an individual is qualified under the PWFA should be made at the time of the employment decision,53 the determination of “in the near future” should be made when the employee asks for each accommodation that requires the suspension of one or more essential functions. Thus, an employee who is 3 months  pregnant and who is seeking an accommodation of the temporary suspension of an essential function(s) due to a limitation related to pregnancy will meet the definition of “in the near future” because the inability to perform the essential function(s) will end in less than 40 weeks. When the employee returns to work from leave after childbirth, if the employee needs an essential function temporarily suspended for a reason related to pregnancy, childbirth, or related medical conditions, there should be a new determination made as to whether the employee is qualified   under § 1636.3(f)(2). In other words, there is a new calculation of “in the near future” with the new employment decision that involves the temporary suspension of an essential function(s) . . .

Also, this 40-week timeframe for the temporary suspension of an essential function does not include any time the employee needs for leave because leave is a separate issue.  “In the case of leave, the question would be whether the employee, after returning from the requested period of leave, would be able to perform the essential functions of the position with or without reasonable accommodation (or, if not, if the inability to perform the essential function(s) is for a temporary period, the essential function(s) could be performed in the near future, and the inability to perform the essential function(s) can be reasonably accommodated).”

 The accompanying Appendix explains that “an employee need not have an impairment that substantially limits a major life activity to be entitled to a reasonable accommodation under the PWFA, nor does an employee need to have an “impairment” as defined in the regulation implementing the ADA.”  Spouses and other individuals associated with a pregnant employee are not entitled to accommodations and issues with childcare and newborn bonding are also not protected or covered by the PWFA.

For instance, during pregnancy or following maternity leave, the employee may request the suspension of one or more essential functions and the employer must reasonably accommodate that request unless it would impose an undue hardship (which will be discussed in the future) and in consideration of the following factors set forth in §1636.3(j)(3):

(i) The length of time that the employee will be unable to perform the essential

function(s);

(ii) Whether,  . . ., there is work for the employee to accomplish;

(iii) The nature of the essential function(s), including its frequency;

(iv) Whether the covered entity has provided other employees in similar positions who are unable to perform the essential function(s) of their position with temporary suspensions of the essential function(s);

(v) If necessary, whether there are other employees, temporary employees, or third parties who can perform or be hired to perform the essential function(s); and

(vi) Whether the essential function(s) can be postponed or remain unperformed for any length of time and, if so, for how long.

The regulations suggest that the temporary suspension of essential job functions can generally be accomplished by temporarily (a) suspending the essential functions while the employee performs the remaining functions of the job, (b) suspending the essential functions while assigning the employee different job functions to perform instead, (c) performing a different job via a transfer or assignment or (d) being assigned to light or modified duties.  29 C.F.R. §1636(i) provides that reasonable accommodations also include

• Job restructuring,
• Modified work schedules,
• Reassignment to vacant positions
• Rest breaks
• Purchasing devices to help with lifting and/or carrying,
• Providing seating,
• Telework or remote work,
• Reserved parking spaces,

As discussed in the proposed regulations, there are four accommodations which will almost always be mandatory because the undue hardship exception would rarely, if ever, apply:

(i) Allowing an employee to carry or keep water near and drink, as needed;

(ii) Allowing an employee to take additional restroom breaks, as needed;

(iii) Allowing an employee whose work requires standing to sit and whose work

requires sitting to stand, as needed; and

(iv) Allowing an employee to take breaks to eat and drink, as needed. 

The PWFA regulations require a greater type of accommodation than is required under the ADA.  Here are some examples from the Appendix of when an employee would be deemed qualified under the PWFA, but not the ADA:

             (1) a pregnant construction worker is told by their health care provider to avoid lifting more than 20 pounds during the second through ninth months of pregnancy, an essential function of the worker’s job requires lifting more than 20 pounds, and there is not a reasonable accommodation that will allow the employee to perform that function without lifting more than 20 pounds; and

(2) a pregnant police officer is unable because of their pregnancy to perform patrol duties during the third through ninth months of pregnancy, patrol duties are an essential function of the job, and there is not a reasonable accommodation that will allow the employee to perform the patrol duties.

In both of these situations, an employer would be required under the PWFA, but not the ADA, to temporarily suspend the essential job functions unless doing so would be unreasonable or constitute an undue hardship.

The Appendix also explains that

The actual length of the temporary suspension of the essential function(s) will depend upon what the employee requires, and the covered entity always has available the defense that it would create an undue hardship. However, the mere fact that the temporary suspension of one or more essential functions is needed for any time period up to and including generally 40 weeks for a pregnant employee will not, on its own, render an employee unqualified under the PWFA.

These are some of the examples provided in the Appendix:

Example #1/Definition of “Qualified”:

One month into pregnancy, Akira, an employee in a paint manufacturing plant, is told by her health care provider that she should avoid certain chemicals for the remainder of the pregnancy. One of several essential functions of the job involves regularexposure to these chemicals. Akira talks to her supervisor, explains her limitation, and asks that she be allowed to continue to perform her other tasks that do not require exposure to the chemicals. . . . .

Qualified: If modifications that would allow Akira to continue to perform the essential functions of her position (such as enclosing the chemicals, providing a local exhaust vent, or providing additional personal protective gear) are not effective or cause an undue hardship, Akira can still be qualified under the definition that allows for a temporary suspension of an essential function(s).

a. Akira’s inability to perform the essential function(s) is temporary.

b. Akira can perform the essential function(s) of her job in the near future because she is pregnant and needs an essential function(s) suspended for less than 40 weeks.

c. Akira’s inability to perform the essential function(s) may be reasonably accommodated. The employer can suspend the essential function(s) that requires her to work with the chemicals, while allowing her to do the remainder of her job.

         Example #3/Definition of “Qualified”:

Olga’s position as a carpenter involves lifting heavy wood that weighs more than 20 pounds. Upon returning to work after giving birth, Olga tells her supervisor that she has a lifting restriction of 10 pounds due to her cesarean delivery. The restriction is for 8 weeks. The employer does not have an established light duty program but does have other design or administrative duties that Olga can perform.  . . .

2. Qualified: Olga needs the temporary suspension of an essential function(s).

a. Olga’s inability to perform the essential function(s) is temporary.

b. Olga can perform the essential function(s) of her job in the near future because she needs the essential function(s) suspended for 8 weeks.

c. Olga’s need to temporarily suspend an essential function(s) of her job may be reasonably accommodated by temporarily suspending the essential function(s) and temporarily assigning Olga to design or administrative duties.

Example #12/Alleviating Pain or Risk to Health:

Celia is a factory worker whose job requires her to regularly move boxes that weigh 50 pounds. Prior to her pregnancy, Celia occasionally felt pain in her knee when she walked for extended periods of time. When Celia returns to work after giving birth, which was by cesarean section, Celia requests that she limit tasks to those that do not require moving boxes of more than 30 pounds for 3 months because heavier lifting could increase the risk to her health and her continued recovery from childbirth. Under the PWFA, the employer is required to provide the requested accommodation (or another reasonable accommodation) absent undue hardship. However, under the PWFA, the employer would not be required to provide an accommodation for Celia’s knee pain unless it was related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. The employer also may have accommodation responsibilities regarding Celia’s knee pain and lifting restrictions under the ADA.

Example #13/Alleviating Pain or Risk to Health:

Emily is a candidate for a police officer position. The application process takes place over several months and has multiple steps, one of which is a physical agility test. By the time it is Emily’s turn to take the test, she is 7 months pregnant. To avoid risk to her health and the health of her pregnancy, Emily asks that the test be postponed and that her application be kept active so that once she has recovered from childbirth, she can resume the application process and not have to re-apply. Under the PWFA, the employer is required to provide the requested accommodation (or another reasonable accommodation) absent undue hardship.

Example #14/Alleviating Pain or Risk to Health:

Jackie’s position at a fabrication plant involves working with certain chemicals, which Jackie thinks is the reason she has a nagging cough and chapped skin on her hands. For the one year when she is nursing, Jackie seeks the accommodation of a temporary suspension of an essential function—working with the chemicals—because of the risk that the chemicals will contaminate the milk she produces. The employer provides the accommodation. After Jackie stops nursing, she no longer has any known limitations. Thus, under the PWFA, she can be assigned to work with the chemicals again even if she would prefer not to do that work, because the PWFA requires an employer to provide an accommodation only if it is needed due to a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. Jackie’s employer may have accommodation responsibilities under the ADA.

Example #17/Alleviating Pain or Risk to Health:

Avery works as an administrative assistant and is pregnant. Avery normally works in the office and commutes by driving and public transportation. Due to pregnancy, Avery is experiencing sciatica; commuting is painful because it requires Avery to sit and stand in one position for an extended period of time. Avery seeks the accommodation of teleworking or changing the start and end time of the workday in order to commute during less crowded times and reduce the commute time and thereby reduce the pain. Under the PWFA, the employer is required to provide the requested accommodation (or another reasonable accommodation) absent undue hardship.

Example #18/Alleviating Pain or Risk to Health:

Arya is pregnant and works in a warehouse. When it is hot outside, the temperature in the warehouse increases to a level that creates a risk to Arya and her pregnancy. Arya seeks an accommodation of a portable cooling device to reduce the risk to her health and the health of her pregnancy because of the heat in her workplace. Under the PWFA, the employer is required to provide the requested accommodation (or another reasonable accommodation) absent undue hardship.

Example #19/Alleviating Pain or Risk to Health:

Talia is a nurse and is pregnant. The community where she lives is experiencing a surge in cases of a contagious respiratory viral disease that has been shown to increase the risk of negative outcomes for pregnancy. To reduce her risk and the risk to her pregnancy, Talia requests additional protective gear and to not be assigned to patients exhibiting symptoms of this virus. Under the PWFA, the employer is required to provide the requested accommodation (or another reasonable accommodation) absent undue hardship.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Supreme Court: FAA Requires Cases to be Stayed Pending Arbitration and May Not Be Dismissed

This morning, a unanimous Supreme Court held that a court may not dismiss (even without prejudice) a case which is subject to mandatory arbitration under the Federal Arbitration Act.  Smith v. Spizzirri, No. 22-1218 (5-16-24).   Rather, the FAA provides that such proceedings shall be “stayed” -- or held in abeyance -- pending arbitration.   Therefore, when a party (in this case an employer) moves to compel arbitration of the underlying employment claims and stay the proceedings, it was an error for the court to compel arbitration and then dismiss the case without prejudice.  The court’s inherent authority to dismiss a case is subject to the FAA’s statutory requirement to stay the proceedings.