Ohio Supreme Court Limits Classified Employees to Civil Service Commissions to Redress Civil Service Statutory Rights

 Last month, the Ohio Supreme Court reversed the Court of Appeals and held that Ohio law does not permit classified employees to challenge allegedly unlawful reductions in pay in a private lawsuit because the exclusive remedy is an appeal to the applicable civil service commission.  Binder v. Cuyahoga Cty., Slip Op. 2020-Ohio-5126.  In ordering a dismissal of the class action lawsuits, the Court concluded “R.C. 124.34 does not allow a civil service employee to file an action in common pleas court to vindicate alleged violations of the statute by an appointing authority.” Yet although the plaintiffs failed to state a claim for relief, the Court also concluded that the common pleas court still possessed subject matter jurisdiction over the claims because the statutory scheme had not explicitly divested the courts of such jurisdiction.

Following the County’s adoption of a new form of government, an ordinance adopted a uniform workweek and paid lunch break (i.e., 40 hours and 1 hour), while maintaining salary levels.  This apparently disadvantaged employees who had previously worked only 35 hours/week and received 30 minutes for lunch.  Accordingly, class action lawsuits were filed challenging the ordinance and change in working conditions under O.R.C. § 124.34.   The County moved to dismiss on the ground, among other things, that their exclusive remedy was in the civil service system and did not permit class actions. 

The Court noted that plaintiffs who seek redress for statutory violations must first show that the statute provides the requested relief and right of action.   The applicable statute limits when an employee’s compensation may be reduced and the employee has the right to appeal the reduction to the applicable civil service commission within 10 days of receiving the written notice.   However, just as classified employees who are fired or suspended for five or more days can only appeal to the civil service commission instead of filing a lawsuit, classified employees whose pay is reduced can only challenge the reduction through the civil service system.  

While the statute establishes an administrative scheme in which an aggrieved employee can appeal a reduction in pay to the SPBR or the applicable civil-service commission, we see no language in R.C. 124.34, or elsewhere in R.C. Chapter 124, demonstrating the General Assembly’s intent to authorize a civil action in common pleas court for violations of the statute. Had the General Assembly intended to allow civil actions as an avenue of redress, it could have said so expressly, as it has in other instances.

That being said, although the courts did not have the authority under the relevant statutes to grant the requested relief, the Court also found that the common pleas court possessed subject matter jurisdiction over the claims because the statute did not divest the courts of jurisdiction.

With limited exceptions, R.C. 2305.01 grants the courts of common pleas subject-matter jurisdiction over “all civil cases in which the sum or matter in dispute exceeds the exclusive original jurisdiction of county courts.” Because of this general grant of jurisdiction, “a court of common pleas has jurisdiction over any case in which the matter in controversy exceeds the jurisdictional limit unless some statute takes that jurisdiction away.”

               . . . .

           By contrast, R.C. 124.34 does not contain any express statutory language removing common pleas courts’ general jurisdiction. . . .

               . . .

           While R.C. 124.34 does not divest common pleas courts of their general subject-matter jurisdiction, appellees’ claims here for declaratory relief and damages ultimately fail because R.C. 124.34 does not authorize that relief. Stated another way, appellees’ complaints do not present a jurisdictional defect, but rather a failure to state a claim for which relief can be granted.

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 Rejects Cat's Paw Theory for Discriminatory Job References in Hiring Cases

 Last month, the Sixth Circuit Court of Appeals affirmed an employer’s summary judgment on an age discrimination claim based on its failure to interview or hire an applicant with 30 years of experience, but who had poor job references.  Flowers v. WestRock Services, Inc., No. 20-1230 (6^th Cir. 2020).  The plaintiff admittedly could not satisfy certain qualifications for the job established in the job description and was not entitled to override the employer’s ability to establish its own job criteria.  The plaintiff also could not show pretext based on a generic, automated message about preferring more candidates who more closely matched the job requirements.  Interestingly, the Court held that the cat’s paw theory of discrimination did not apply to hiring decisions because the employer could not independently investigate the basis of a negative job reference from a prior employer. “If every reference comes with a federal duty to investigate, hiring will become exceedingly tedious, especially with the volume of applications submitted through today’s digital platforms.”

According to the Court’s opinion, the plaintiff had 30 years of pipefitting experience prior to his 2013 retirement.  He had been told about an open pipefitting position with the defendant employer, which required the ability to read blueprints, to select the type and size of appropriate pipe, and to weld, etc.  He applied online and did not reveal his age.  However, he was not interviewed when a former supervisor now working for the defendant employer reported on his poor work ethic and this was confirmed by another former supervisor contacted by the employer.  He was informed through an automated message that the employer had decided to pursue other candidates whose skills more closely matched the desired requirements and qualifications.   The employer apparently hired two temporary contractors at a higher billing rate.  After the plaintiff heard that a younger candidate with less pipefitting experience, but extensive welding experience, had been hired, this lawsuit followed.  

During his deposition, the plaintiff admitted that he was unable to read blueprints and lacked experience selecting the type and size of pipe appropriate for a job.  He also was not certified in welding because he did not like welding.  The successful candidate was an extremely experienced welder, but there is no discussion of whether he met the other qualifications.  Accordingly, the trial court granted the employer’s summary judgment motion because the plaintiff could not show that he was qualified for the position due to his failure to satisfy the basic requirements for the position.   The trial court also found it was common sense that the employer would prefer to interview a candidate about whom it knew nothing over a candidate with poor job references.

Flowers’s failure to show he was “otherwise qualified” for the job of Journeyman Pipefitter dooms his claim. From the summary judgment record, Flowers has not demonstrated that his “qualifications are at least equivalent to the minimum objective criteria required for employment in the relevant field,” as set out in the job description. . . . Noting Flowers’s admission that he does not know how to select the size and type of pipes or read blueprints, two of the listed job requirements, and aware of Flowers’s disinterest in welding, another job duty, the district court held that Flowers failed to show he was otherwise qualified for the position. We see no error in that conclusion. Requiring a plaintiff to establish a prima facie case under the ADEA framework serves to eliminate the most common nondiscriminatory reasons for an employer’s action. . . .  One such reason is an applicant’s lack of qualifications. WestRock desired a pipefitter who could read blueprints and select pipes, and who also had an interest in welding. Flowers missed the mark in each respect, the first two by his own admission, and the third due to his lack of interest in welding as much as “seven days a week, twelve hours a day.”

Rather than challenging those conclusions, Flowers instead challenges the premise that these skills are necessary for the position. To his mind, pipefitters do not need to read blueprints, nor should they be required to make pipe selections. But as the one who creates the position in question, the employer largely enjoys the right to decide the qualifications it prefers in one who holds the position and, it follows, whether an applicant lacks the necessary knowledge or experience.. . . And given an employer’s superior knowledge of its workplace and industry, the employer’s stated job requirements will typically be the objective criteria by which we measure a fail-to-hire claim. . . . Who, after all, better understands the relevant field and the corresponding skills necessary to succeed than the employer? Not a federal court, one reason why we do not “substitute [our] judgment for that of management” when it comes to business decisions like setting necessary job qualifications.

The Court also agreed that the plaintiff could not show that the employer’s explanation was pretextual based on the poor job references he received.   The plaintiff did not and could not dispute that he had received poor job references.   He also failed to show that his age was a factor.  His age was never indicated on his job application, in any of the negative job references, and, even considering his 37 years of work experience, he could have been as young as 55 (instead of his actual age of 71).

The plaintiff could not show pretext on the basis that he passed the initial review of his application as “generally qualified” because it was undisputed that he received negative evaluations of his work ethic at the next stage.   The Court also refused to find pretext from the employer’s automated message that the employer was pursuing more qualified candidates instead of bluntly telling him that he had poor references.    (This part of the decision is confusing because it indicates that the employer did not in fact consider other, more qualified candidates, despite the factual summary indicating that a candidate with welding experience was hired).  

Accepting Flowers’s contention, moreover, seemingly would impute a legal duty on employers to reject applicants in blunt, precise terms. Some employers may have no objection to telling someone like Flowers that he was not hired because two people, including a prior coworker, thought he had a bad work ethic. Yet many others surely would prefer to respect social etiquette, avoiding hard truths when possible. Either way, certainly the ADEA does not require the former, nor does it suggest that the latter is evidence of age discrimination.

The Court also found that the plaintiff failed to show that the negative references were insufficient to justify the hiring decision because the plaintiff did not show that any other candidates were considered with similarly poor references.

Flowers says there are three such WestRock employees. Yet of the three, WestRock provided evidence that one was hired before Flowers applied, and another was already employed by the company before being moved into a pipefitting apprenticeship. And as to the third, Flowers provides no evidence that the employee received negative references or lacked required skills as did Flowers.

As a final salvo, Flowers invokes an economic rationality argument to justify his age claim. Noting that WestRock paid two contractor pipefitters substantially more than he would have been paid as an employee, Flowers paints this purported “irrational economic decision” as evidence of age discrimination. True, in some circumstances we may consider the reasonableness of an employer’s decision to the extent it explains whether an employer’s proffered reason for an employment action was its actual motivation. Wexler, 317 F.3d at 576. Whether WestRock relied on temporary contractors, however, has little bearing on whether the company was motivated by the negative references.

Finally, the Court rejected the plaintiff’s attempt to prove discrimination through a cat’s paw theory.  Indeed, the Court found that the cat’s paw theory should not apply in hiring decisions because HR could never independently investigate whether a prior employer held a discriminatory animus.  In any event, the Court found that the plaintiff failed to show that the individuals – inside and outside the employer – held an age bias against him when they recommended against hiring him.

Cat’s Paw.  Failing on these fronts, Flowers embraces a novel understanding of what has come to be known as the “cat’s paw” theory of discrimination. The customary application of that theory involves a supervisor who “performs an act motivated by [prohibited] animus that is intended by the supervisor to cause [the formal decisionmaker to take] an adverse employment action.” Staub v. Proctor Hosp., 562 U.S. 411, 422 (2011). Where a supervisor engages in that type of conduct, and where the supervisor’s “act is a proximate cause of the ultimate employment action, then the employer is liable.” Id. This theory of liability serves to prevent the ultimate decisionmaker—for example, a middle manager—from being a shield for a supervisor’s discriminatory intent.

While this theory has been applied to purported discrimination against a company’s current employees, it is quite another thing to extend it to mere job applicants as well. Doing so would place a tremendous burden on human resources employees in culling through applications. After all, a disgruntled applicant could always allege that those employees did not do enough diligence in considering an applicant’s references, both positive and negative, and that one reference or another had some impermissible bias. If every reference comes with a federal duty to investigate, hiring will become exceedingly tedious, especially with the volume of applications submitted through today’s digital platforms. That is unlike the narrower focus of a cat’s paw claim asserted by a current employee or group of employees.

To the same end, whereas the relevant job history for a current employee is likely internal to the company, in the hiring context the relevant history will often lie with another employer. That makes those matters difficult to investigate. Nor, it bears emphasizing, should an employer be liable for the bias of an outsider. Take this case, for example, where one of the negative reviews of Flowers came not from a WestRock supervisor but rather from an employee of another company. While the cat’s paw theory might apply to root out supervisory employees who attempt to shield their discriminatory motives through an internal third-party, it makes little sense to apply that same theory to an allegedly impermissible motive that stems from one who does not even work for the company in question. In the district court’s words, extending the cat’s paw theory as Flowers urges is simply “beyond the pale.”

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.

Ohio Supreme Court: RIFs Can Be Accomplished Through Attrition and Do Not Require Layoffs

 Last week, a divided Ohio Supreme Court affirmed the dismissal of a mandamus action by a number of police officers who sought to be promoted to positions which had previously been abolished by the City Council upon the retirement of the prior incumbents.  State ex rel. Ohio Patrolmen’s Benevolent Assn. v. Warren, Slip Op. 2020-Ohio-5372.  The Court held that when the City Council had already reduced the headcounts for officers to be accomplished upon the next retirement to occur in those positions (i.e., through attrition), vacancies never occurred in those positions into which the next most senior officers could be promoted.  The Court distinguished a prior opinion which reached the opposite result because in this case the City Council reduced the headcounts and abolished the positions “on a prospective basis,” before the retirements and before the creation of a vacancy.  In other words, “[t]he statute does not say that reduction in the force can be accomplished only by layoffs.”

 According to the Court’s opinion, the City of Warren was subject to Ohio’s civil service statutes, including O.R.C. §§124.37 and 124.44.   In 2014, the City Council amended the authorized strength of the police force (in place since 1987) to reduce by one the number of captains, lieutenants and sergeants “through attrition.”  When the next captain and lieutenant retired in 2015 and 2016, their positions were not filled through promotion and were deemed abolished upon the retirement of the incumbents.   The plaintiffs filed a mandamus action because they were next in line to receive the promotions into the captain, lieutenant and sergeant positions.  Initially, the court found that the retirements created vacancies which first had to be filled before the positions could be abolished.  However, after stipulated facts were submitted on reconsideration, the court reversed and granted judgment on the pleadings to the City.  The officers appealed and a divided Supreme Court affirmed in a per curiam opinion.

 The civil service statutes require promotions, or civil service examinations, when a vacancy occurs.   When a position is abolished, the employee with the lowest seniority in that rank is demoted to the next lower rank, which then demotes the least senior employee of that rank and so on until the least senior officer is laid off.  The plaintiffs argued that positions cannot be abolished through attrition and can only be abolished after a vacancy created by a retirement is filled through promotion.  However, the Court of Appeals found “nothing in [R.C. 124.44 and 124.37] prohibit[s] the City from accomplishing a reduction in force by attrition” and that “attrition is the least disruptive means of all possible methods to reduce the force” inasmuch as “[n]o officer was laid off, and no officer needed to be demoted.”  In other words, “the present case involves ‘attrition’ in the sense of automatic abolishment upon the former officers’ retirement, preventing a vacancy from occurring in the first place.”   

The City pointed out that the “statute does not say that reduction in the force can be accomplished only by layoffs. . . . Nothing in the statute suggests that the appointing authority may not abolish a position unless it is simultaneously demoting someone from that position.”  Instead, the statutes merely point out the order of demotions (starting with the least senior employees) should an abolishment occur in a position held by an incumbent.   Further, the plaintiffs were arguing for the creation of a fiction by the promotion of individuals who would be almost immediately demoted with the abolishment of the position.  The Court agreed that “[o]nce the incumbent’s position has been validly disestablished, then a vacancy simply does not occur upon his retirement.”

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 Rejects First Amendment Retaliation Claim Based On Employee's Firing for Single Use of Racial Slur on Facebook

 Earlier this month, the Sixth Circuit Court of Appeals reversed a trial verdict of $25K which found that a Trump-supporting employee was unlawfully retaliated against in violation of the First Amendment when she had been fired for using racist slang a single time on a Facebook post on election night 2016 even though she had deleted the entire post the next day.   Bennett v. Metro. Gov’t of Nashville, No. 19-5818 (Oct. 6, 2020).  The Court found that the plaintiff’s use of the racist term in responding to the exact same language posted by a stranger was not constitutionally protected and justified her termination.  While her comment did reflect on a matter of public concern, it was not entitled to the highest level of protection as other comments might have been and was outweighed by the disruption created by her comment within her workplace and in the public’s trust of her department.  It was particularly problematic that her Facebook posts were public, that she identified her employer and department, that she failed to disclaim that her personal opinions were her own and not that of her employer, that she had direct contact with the public in her job, that she failed to consistently express remorse or accountability, and that many of her co-workers were deeply offended and upset by her use of the word.  The Court also rejected the plaintiff’s defense asserting that the City had caved to a single heckler’s veto.  While the decision was unanimous and there was a majority court opinion, each judge wrote a separate opinion explaining the outcome.

According to the Court’s opinion, the plaintiff employee stayed up until 3 a.m. on election night and posted an image of the electoral map when Trump had been declared the winner.  A stranger quickly posted a comment on her public page indicating that Trump had been elected by “rednecks” while “niggaz and latinos states vot[ed] for hillary.”  She responded using his same language, ““Thank god we have more America loving rednecks.  . . . Even niggaz and latinos voted for trump too!”  Several friends notified her the next morning that they were offended by her language and she deleted the entire post that afternoon.   In the meantime, the City’s HR Department, the union and the Mayor’s office received a few complaints about her Facebook comments.  One person  (allegedly a disgruntled former employee) who had viewed her post had then made screen shots of it and may have been sharing it on his Facebook page while accusing the City of being racist.   The City became especially concerned because the plaintiff had identified herself as both an employee of the City and its police department.   However, by the time they telephoned her to request that she remove the post, she had already done so.

When she met with the City before her shift the following morning, she initially showed no remorse or understanding of how inappropriate her comment had been.  She felt that she had simply made a sarcastic response to the initial comment and that objectors were not really all that offended.  When she realized that this was becoming a disciplinary issue, she offered to apologize to the offended employees, but objected to apologizing to the entire staff at roll call.  Accordingly, she was sent home on administrative leave pending further investigation.  The union reported increasing tension within the department where the plaintiff worked as a result of her Facebook comment.  The City also decided that diversity training in that department would be appropriate and to have a counsellor come in and speak with employees who were offended.

Following the investigation, the City

determined that [the plaintiff’s] conduct violated three policies of the Metropolitan Government Civil Service Commission: (1) her behavior “reflect[ed] discredit upon [her]self, the department, and/or the Metropolitan Government,” (2) her conduct was “unbecoming of an employee of the Metropolitan Government,” and (3) her Facebook profile disclosed that she was a Metro employee but failed to include a disclaimer that her “expressed views are [hers] alone and do not reflect the views of the Metropolitan Government.”

A letter was sent to the plaintiff explaining

that “[t]o advance the mission [of ECC], it is vitally important that all department employees conduct themselves in a manner free of bias, demonstrate unquestionable integrity, reliability and honesty,” and that “[t]he success of [the] agency can be measured by the perception and confidence the public has in the employees representing the agency.”

The City felt that

the charges were appropriate, first, because she felt that inclusion of a particularly offensive racial slur in a public social-media post was objectionable because it did not reflect Metro policy or the beliefs of people who worked there. Further, she thought such racially charged language would bring discredit to the office and testified that “the public that we serve is very diverse, and it’s my expectation that when someone calls[,] regardless of who they are or where they’re from, that they’re going to receive the appropriate service.” Donegan also concluded that Bennett’s behavior warranted discipline because of the disruption it caused: employees were upset at work, counselors needed to be involved, and stress levels increased for the agency as a whole.

At some point, the plaintiff took FMLA leave and was notified of her pre-disciplinary hearing upon her return and was placed back on administrative leave pending the hearing.  In the meantime, she had written a letter of apology expressing her embarrassment and humility, but she did not express any of those sentiments at the hearing, where she instead defended and explained her conduct. 

[S]he did not exhibit concern for her colleagues’ feelings, called them hypocrites, and indicated that she would not apologize because someone else took something the wrong way—indeed, she believed her colleagues should instead apologize to her.

Concerned with the lack of remorse, accountability or acknowledgement of poor judgment, the decision was made to terminate her employment in order to avoid a repeat of the incident and promote healing within her department.

The plaintiff sued under §1983 and the First Amendment retaliation claim was tried to a jury, which indicated in the jury interrogatories that it found that her Facebook post “was not reasonably likely to impair discipline by superiors at ECC, to interfere with the orderly operation of ECC, or to impede performance of” her duties.  However, the jury also found that her Facebook post was “reasonably likely to have a detrimental impact on close working relationships [within her department] and undermine the agency’s mission, that [the City] terminated Plaintiff ‘[f]or using the term ‘niggaz’ when expressing her views regarding the outcome of a national election on Facebook,’ and that doing so violated the three charges outlined in Bennett’s termination letter.”  Upon receiving these jury interrogatory responses, the trial court ruled that the balancing factors weighed in the plaintiff’s favor and the jury awarded her $25K in damages.

In reversing, the Court of Appeals concluded that the trial court erred in balancing the factors in determining whether the plaintiff’s speech was constitutionally protected.

To establish a claim for First Amendment retaliation, a public employee must show that: (1) he engaged in constitutionally protected speech or conduct; (2) an adverse action was taken against him that would deter a person of ordinary firmness from continuing to engage in that conduct; [and] (3) there is a causal connection between elements one and two—that is, the adverse action was motivated at least in part by his protected conduct.

In order to find that a government employee’s speech is constitutionally protected, a court must first determine whether the employee was speaking as a private citizen or public employee in the course of employment (which was not an issue in this case) and then,

determine whether the statement in question constitutes speech on a matter of public concern.   . . .  Then, if it does, we apply the Pickering balancing test to determine whether the Plaintiff’s “interest in commenting upon matters of public concern . . . outweigh[s] the interest of [Metro], as an employer, in promoting the efficiency of the public services it performs through its employees.”

The Court began its analysis by determining the degree of protection to give the plaintiff’s comments based on “the level of importance the speech has in the community” and its context.  The City conceded that the plaintiff’s comments were political in nature, but argued that her comments were not “purely political” and thus, not entitled to a heightened level of constitutional protection.  While the plaintiff asserted that her comments had been purely political, the Court rejected the plaintiff’s argument that she had been terminated in response for supporting Trump.  She had admittedly posted prior comments supporting Trump and suffered no adverse employment action.    Further, the jury had been given multiple choice options for answering the jury interrogatories and had not selected the option that she was terminated for expressing her opinion about the results of the election.  It also rejected the options about workplace disruptions or lack of accountability.   Instead, it selected the only option which quoted the language that she used on Facebook.

The Court reasoned that the First Amendment does not merely focus on the speaker’s interest, “but also with the public’s interest in receiving information.”  Her comments on a matter of public interest on which she had no special insight was not entitled to the same level of protection of, for instance, discussing the lawful operation of the city government.  Clearly, the public would be more interested in the latter than the former.

It is true that the speech in question was couched in terms of political debate, made in response to and repeating back the words of another person, and used a more casual version of an offensive slur.  Still, Bennett’s speech does not garner the high level of protection that the district court assigned to it, and the balancing test requires less of a showing of disruption and other factors than the district court would require.  . . . In any event, the evidence of disruption caused by the language in Bennett’s Facebook post was substantial.

We apply the Pickering test “‘to determine [whether] the employee’s free speech interests outweigh the efficiency interests of the government as employer.’”  . . . . The test considers “the manner, time, and place of the employee’s expression.” . . . . The “pertinent considerations” for the balancing test are “whether the statement [(a)] impairs discipline by superiors or harmony among co-workers, [(b)] has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, [(c)] impedes the performance of the speaker’s duties or interferes with the regular operation of the enterprise,” id., or (d) undermines the mission of the employer.  . . . The consideration of the employee’s performance, impaired discipline by superiors, harmony among co-workers, and undermining of the office’s mission is “focuse[d] on the effective functioning of the public employer’s enterprise.”  . . .

Consideration of the first factor of the Pickering test, whether the speech impaired discipline by superiors or harmony among co-workers, weighs heavily in favor of Metro. The record makes clear that the harmony of the office was disrupted, and the district court erred in discounting the importance of harmonious relationships at ECC. Employees testified that Bennett’s post prompted a “nonstop conversation” in the office that lasted for days, and for as much as three weeks to a month after Bennett’s comment, there was a need for a counselor to address the office.

While nothing about the plaintiff’s comment impaired discipline among management, “it is possible that any inaction on [management’s] part in the face of Bennett’s derogatory speech could have been seen as an endorsement of the speech and impaired future discipline of similar derogatory statements.”

The Court also found that the second Pickering factor weighed heavily in favor of the City because the jury had found that the speech had a detrimental impact on the close working relationships for which personal loyalty and confidence are necessary.  Employees had expressed concern about whether they could work again harmoniously with the plaintiff in an already stressful environment.

“The third factor, whether Bennett’s speech “impede[d] the performance of the speaker’s duties or interfere[d] with the regular operation of the enterprise,” is a close call.”  The jury found that there was no evidence that the plaintiff’s ability to perform her duties would be impacted, but the Court noted that it was also possible that her damaged relationships with her colleagues could adversely affect her work and job performance.

“Finally, Bennett’s comment detracted from the mission of ECC, weighing again in favor of” the City. “When someone who is paid a salary so that she will contribute to an agency’s effective operation begins to do or say things that detract from the agency’s effective operation, the government employer must have some power to restrain her.”  The jury concluded that her comments had undermined her department’s mission, but the trial court had discounted this finding in error.

Had Bennett’s profile been private, or had it not indicated that she worked for Metro, Metro’s argument for terminating Bennett would not be as strong. But the relevant Civil Service Rules support the idea that public perception is central to ECC’s mission. Bennett’s public comments discredited ECC because they displayed racial bias without a disclaimer that the views were hers alone. This court and several others “have recognized the interest of a governmental entity in preserving the appearance of impartiality.”

In rejecting the trial court’s weighting of this factor, the Court stated that “we consider the role and responsibilities of the employee and, when the role is public-facing, whether the danger to successful functioning of the office may increase.”

In Rankin, the employee was not in a public contact role, and thus, concerns about public perception were too attenuated to limit the free speech rights of the employee.  . . .. Here, however, Bennett was in a public-facing role and used the slur in a public forum from a profile that implicated not only Metro Government but also the Metro Police Department. This situation is exactly the type that Rankin warned could warrant a higher level of caution for public employees’ choice of words. Id. at 390 (stating that if the employee is in a “confidential, policymaking, or public contact role,” the danger to the agency’s successful functioning may be greater).

Second, the district court determined that because the record contained evidence of only one member of the public expressing concern, the fear of the post “going viral” was not a sufficiently substantial justification. But, although we have not addressed the issue directly, other circuits have held that a reasonable prediction that the public perception will impact the government’s operations is sufficient. . . . Grutzmacher acknowledges that speech on social media “amplifies the distribution of the speaker’s message.”  . . . . Although this situation, in some respects, “favors the employee’s free speech interests,” it also “increases the potential, in some cases exponentially, for departmental disruption, thereby favoring the employer’s interest in efficiency.”

Third, the district court “view[ed] it as highly speculative that even if an African American were familiar with Plaintiff’s Facebook comment and was offended by it, such African American would be deterred from calling in an emergency.” The concern, however, was not that African Americans will no longer call for emergency service, but rather—as Metro explains— that “damaged public perception can lead to many ills” for an agency that serves the public directly. The Second Circuit has effectively captured the importance of public trust in such relationships:

The effectiveness of a city’s police department depends importantly on the respect and trust of the community and on the perception in the community that it enforces the law fairly, even-handedly, and without bias. If the police department treats a segment of the population . . . with contempt, so that the particular minority comes to regard the police as oppressor rather than protector, respect for law enforcement is eroded and the ability of the police to do its work in that community is impaired. Members of the minority will be less likely to report crimes, to offer testimony as witnesses, and to rely on the police for their protection. When the police make arrests in that community, its members are likely to assume that the arrests are a product of bias, rather than well-founded, protective law enforcement. And the department’s ability to recruit and train personnel from that community will be damaged. . . . .

The district court’s reference to Bennett’s use of “niggaz” as “the mere use of a single word” demonstrates its failure to acknowledge the centuries of history that make the use of the term more than just “a single word.” The use of the term “evok[es] a history of racial violence, brutality, and subordination.” . . . . It “may appear innocent or only mildly offensive to one who is not a member of the targeted group, but be intolerably abusive or threatening when understood from the perspective of a [person] who is a member of the targeted group.” Id. “The use of this word, even in jest, could be evidence of racial apathy.”

The Court also rejected the plaintiff’s argument about a “heckler’s veto” by giving a hostile mob control over determining what political speech is protected when, up to the time that she had been terminated, only one member of the public had complained about her Facebook post.   

A heckler’s veto involves burdening or punishing speech “simply because it might offend a hostile mob.”  . . . We have not addressed a heckler’s veto in this context, but the Ninth Circuit has held that those concerns are not applicable to the “wholly separate area of employee activities that affect the public’s view of a governmental agency in a negative fashion, and thereby, affect the agency’s mission.”  . . . The Second Circuit has taken a similar view, finding that “members of the African American . . . communities whose reaction . . . the defendants legitimately took into account . . . cannot properly be characterized as ‘outsiders seeking to heckle [the plaintiffs] into silence.’”  . . . Because effective emergency service “presupposes respect for the members of those communities,” such agencies are permitted to account for the possible reaction of the public when disciplining their employees. Id. The public—as the consumers of ECC’s services—and Bennett’s colleagues with whom she must work collaboratively can hardly be said to be “a hostile mob.”

Finally, the Court rejected the plaintiff’s argument that the employer’s workplace investigation was superficial because she had the opportunity to present additional evidence and witnesses at her pre-disciplinary hearing.  “The question in this case is not whether members of the judiciary would have made the decision to terminate Bennett for using a racial slur in this instance. The question is whether Bennett’s language was sufficiently protected for the court to interfere in our proclivity for ‘affording government employers sufficient discretion to manage their operations.’”

Because Bennett’s speech does not occupy “the highest rung” of public concern, less of a showing of disruption is required.  Several factors weigh heavily in favor of Metro. Although there are factors weighing in favor of Bennett, sufficient disruption was shown to tip the Pickering balance towards Metro. Based on the above analysis and in light of the discretion we must grant leadership at Metro, its interest in maintaining an effective workplace with employee harmony that serves the public efficiently outweighs Bennett’s interest in incidentally using racially offensive language in a Facebook comment.

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.

New EO on Diversity Training Could Potentially Impact Most Employers

[Editor's Note:  As expected, President Biden rescinded this EO on his first day.]

On September 22, 2020, President Trump issued Executive Order 13950 which bars federal agencies, federal grant recipients and federal contractors from engaging in employee training which utilizes racial or sexual stereotyping or scapegoating.   It does not ban all training about implicit or unconscious bias, but only that employees may not be instructed that they hold such implicit bias by virtue of their sex or race.    The Office of Federal Contract Compliance Programs (OFCCP) has been tasked with enforcement.  OFCCP has issued FAQ and on September 28, 2020 opened a hotline to receive employee complaints about the banned stereotyping and scapegoating and about employment discrimination in general (which is covered by Executive Order 11246).  The EO also directs the Attorney General to examine Title VII ramifications and with the EEOC to "issue publicly available guidance to assist employers in better promoting diversity and inclusive workplaces consistent with Title VII." While certain provisions and applications of the new Executive Order are likely to be challenged under the First Amendment, most of it would be relatively uncontroversial if this were not an election year.

“While the order is effective immediately, its specific requirements for Federal contractors apply only to those with Federal contracts entered into 60 days after the date of the order, or Nov. 21, 2020. However, training programs prohibited by the new Executive Order may also violate a contractor’s obligations under the existing Executive Order 11246, which prohibits discrimination based on race, color, religion, sex, sexual orientation, gender identity, national origin, and for inquiring about, discussing, or disclosing your compensation or the compensation of others.  An employee may file a complaint regarding training programs that they believe to be in violation via OFCCP’s website at https://www.dol.gov/agencies/ofccp/contact/file-complaint or OFCCP can send them a copy of the complaint form by email or regular mail.

The stated policy of the new EO is "is “not to promote race or sex stereotyping or scapegoating in the Federal workforce or in the Uniformed Services, and not to allow grant funds to be used for these purposes. In addition, Federal contractors will not be permitted to inculcate such views in their employees.”

The type of messages which the EO seeks to prohibit include the following:

(a) “Divisive concepts” means the concepts that (1) one race or sex is inherently superior to another race or sex; (2) the United States is fundamentally racist or sexist; (3) an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously; (4) an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex; (5) members of one race or sex cannot and should not attempt to treat others without respect to race or sex; (6) an individual’s moral character is necessarily determined by his or her race or sex; (7) an individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex; (8) any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or (9) meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race. The term “divisive concepts” also includes any other form of race or sex stereotyping or any other form of race or sex scapegoating.

(b) “Race or sex stereotyping” means ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex, or to an individual because of his or her race or sex.

(c) “Race or sex scapegoating” means assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex. It similarly encompasses any claim that, consciously or unconsciously, and by virtue of his or her race or sex, members of any race are inherently racist or are inherently inclined to oppress others, or that members of a sex are inherently sexist or inclined to oppress others.

With respect to federal contractors covered by affirmative action requirements, the EO provides that future government contracts shall contain the following requirement of contractors:

1. The contractor shall not use any workplace training that inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating, including the concepts that (a) one race or sex is inherently superior to another race or sex; (b) an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously; (c) an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex; (d) members of one race or sex cannot and should not attempt to treat others without respect to race or sex; (e) an individual’s moral character is necessarily determined by his or her race or sex; (f) an individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex; (g) any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or (h) meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race. The term “race or sex stereotyping” means ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex, or to an individual because of his or her race or sex, and the term “race or sex scapegoating” means assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex.

2. The contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice, to be provided by the agency contracting officer, advising the labor union or workers’ representative of the contractor’s commitments under the Executive Order of September 22, 2020, entitled Combating Race and Sex Stereotyping, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.

3. In the event of the contractor’s noncompliance with the requirements of paragraphs (1), (2), and (4), or with any rules, regulations, or orders that may be promulgated in accordance with the Executive Order of September 22, 2020, this contract may be canceled, terminated, or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts in accordance with procedures authorized in Executive Order 11246, and such other sanctions may be imposed and remedies invoked as provided by any rules, regulations, or orders the Secretary of Labor has issued or adopted pursuant to Executive Order 11246, including subpart D of that order.

4. The contractor will include the provisions of paragraphs (1) through (4) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as may be directed by the Secretary of Labor as a means of enforcing such provisions including sanctions for noncompliance: Provided, however, that in the event the contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction, the contractor may request the United States to enter into such litigation to protect the interests of the United States.”

By the end of this month, OFCCP is also directed to request through the Federal Register information about diversity training offered to employees by federal contractors.  It is unclear whether this is past training or future training materials.

Within 30 days of the date of this order, the Director of OFCCP shall publish in the Federal Register a request for information seeking information from Federal contractors, Federal subcontractors, and employees of Federal contractors and subcontractors regarding the training, workshops, or similar programming provided to employees. The request for information should request copies of any training, workshop, or similar programing having to do with diversity and inclusion as well as information about the duration, frequency, and expense of such activities.

It is unclear what the purpose of the Request for Information is or how this information will be utilized.  OFCCP indicates that its Request for Information will seek the following:

The Request for Information will seek information from federal contractors, federal subcontractors, and employees of federal contractors and subcontractors regarding their training, workshops, or similar programming provided to employees that may be in violation of Executive Orders 11246 or 13950.

The EO also directs action involving the applicability of Title VII.

Sec. 8. Title VII Guidance. The Attorney General should continue to assess the extent to which workplace training that teaches the divisive concepts set forth in section 2(a) of this order may contribute to a hostile work environment and give rise to potential liability under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. If appropriate, the Attorney General and the Equal Employment Opportunity Commission shall issue publicly available guidance to assist employers in better promoting diversity and inclusive workplaces consistent with Title VII.

The EO specifically does not ban “as part of a larger course of academic instruction, the divisive concepts listed in section 2(a) of this order in an objective manner and without endorsement.”

Recipients of federal grants will be prohibited from using federal funds to promote the “divisive concepts.”

OFCCP’s FAQ make clear that implicit bias training is not prohibited by the EO.

Unconscious or implicit bias training is prohibited to the extent it teaches or implies that an individual, by virtue of his or her race, sex, and/or national origin, is racist, sexist, oppressive, or biased, whether consciously or unconsciously.

Training is not prohibited if it is designed to inform workers, or foster discussion, about pre-conceptions, opinions, or stereotypes that people—regardless of their race or sex—may have regarding people who are different, which could influence a worker’s conduct or speech and be perceived by others as offensive.

OFCCP’s FAQ also gives examples of the type of training concepts which are banned:

·       One race or sex is inherently superior to another race or sex;

·       An individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously;

·       An individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex;

·       Members of one race or sex cannot and should not attempt to treat others without respect to race or sex;

·       An individual’s moral character is necessarily determined by his or her race or sex;

·       An individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex;

·       Any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or

·       Meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race.

The Office of Management and Budget has also directed federal agencies to search through procurement and financial records for certain terms in order to identify potentially problematic diversity training materials that might violate the Order, but such a keyword review, by itself, would be insufficient to satisfy the directive and must be accompanied by a more detailed review of the particular training materials.  Those key words include "critical race theory," "white privilege," "intersectionality," "systemic racism," "positionality," "racial humility," and "unconscious bias."

I do not make editorial comments here very often, but when I have provided training in the past, it would never have occurred to me to suggest that a person has implicit bias by virtue of a race or sex.  I still have discussed implicit bias as humans and attribution errors where we – as humans – assume a motivation for someone else’s actions.   Nonetheless, I attended a training recently that made a compelling argument for why it is a mistake to be color blind when trying to be sensitive to others and think that this is a concept worth discussing.  Perhaps it will still be permitted as an academic discussion without endorsement.  But did I just endorse it?  Yikes.  I will add that I understand the importance of making color-blind decisions in employment.  Or I have I dug a deeper hole for myself?   In any event, we are likely to have an idea within the next month of how much of this EO – if any of it – survives into 2021.

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.