Delaware Employment Law Blog

An officer of the LAPD has sued the City of Los Angeles and its Police Department, alleging First Amendment violations and religious discrimination.  The officer's claims are based on off-duty statements he made regarding the Bible's teachings on homosexual acts. 

The officer, Sgt. Eric Holyfield, a Christian pastor, quoted Bible passages during a eulogy for a fellow officer, explaining that homosexuality "was an abomination" and that persons who engage in homosexual conduct "must repent or be condemned to hell."

According to

Holyfield was removed from his "coveted assignment in Community Relations" and assigned to patrol "without due process and in violation of his First Amendment rights." 

To survive dismissal of a First Amendment claim, a public employee must sufficiently allege that he was acting in his capacity as a citizen--not in his employment capacity.  This has been a difficult burden for many plaintiffs to overcome.  Here, Holyfield is apparently aware of the requirement.  He alleges that his speech was made in his role as a minister in the community, not a police officer.  He also points out that he was on vacation that day, he was in a church, which was outside the city, and was dressed in civilian clothes.  All of these factors weigh strongly in favor of a finding that he was not speaking as a police officer when he gave the sermon that resulted in his transfer. 

Given the fervor relating to Barack Obama's ties to Reverend Jeremiah Wright, it will be particularly interesting to see whether Holyfield's First Amendment and religious discrimination claims will survive a motion to dismiss.

As layoffs increase, so do claims of age discrimination. Age-based harassment, though, is less common.  A 49-year-old aide to former Ohio AG Marc Dann claims that Dann's managers used profanity and called him a "dinosaur," resulting in what he claims was harassment and age-discrimination.  This claim comes in the middle of an already scandalous period for the former AG, who has been accused of fostering an unlawfully hostile work environment.

This story comes from the Zanesville Times Recorder's article, "Complaint: AG's office discriminated and harassed."

Dann (pictured) and some of his aides have been in the middle of a sexual-harassment scandal, resulting in the AG's departure from office.  David Kessler, who has filed a complaint with the EEOC against the AG's Office, said that the scandal supports his allegations of abusive behavior. 

Kessler was hired in 1999 and investigated crimes against the elderly.  Kessler claims that, when he took office in January 2007, Dann installed new aides and things went downhill from there.  He claims that he was targeted because he had been hired during the prior administration, which Dann had defeated to take office.  Kessler says that he was told that he could either quit or be fired, so, in January 2008, he quit.

Then, in April 2008, Dann admitted to having an extramarital affair with a staffer and resigned amid allegations of a sexually hostile work environment.  Two female employees claimed that their supervisor had made sexual advances and comments toward them.  Those allegations triggered an investigation leading to other unsavory discoveries.

From a legal perspective, this recent claim is quite different than the original claims of sexual harassment.  Those claims were based on the allegation that the women were being treated less favorably because of their gender.  Here, Kessler seems to really be claiming that he was treated less favorably because of his political affiliation with the prior administration.  Unfortunately for Kessler, such discrimination in politics is often legal, depending on the nature of the position.  If Kessler was a top aide, in a position of trust and authority, then the AG likely did have the right to "discriminate" against him if the AG believed that Kessler's political affiliations prevented him from giving his full loyalty to his new boss. 

And that is where the age-discrimination claim comes in.  If Kessler's claim for political association (a constitutional claim brought pursuant to the First Amendment's Right to Freedom of Association), is tossed by the EEOC or the courts, he'll have the age claim to fall back on.  However, given his actual age (49), the "back-up" argument may be hard to swallow.  Especially if the alleged harassers were older than Kessler.  If an employer really does harbor an age-based bias against employees aged 49 and above, it will soon run out of people to employ.

Then again, the allegation of direct evidence of age-based hostility, i.e., the "dinosaur comment" might be enough for the age-discrimination claim to survive, for now.

See also:  Delaware District Court Awards Summary Judgment to Employer in EEOC Suit for Age Discrimination

The Department of Justice has been sued by an employee who alleges racial discrimination and sexual and race-based harassment. 

A 13-year veteran paralegal in the Civil Rights Division of the Department of Justice (DOJ) has filed suit claiming she was discriminated against and harassed by managers who repeatedly passed her over for advancement because she is African-American. Joi Hyatte alleges that the DOJ "actively" sought only white and Hispanic candidates for higher-paying analyst positions.

The complaint also says that the section chiefs failed to rein in or discipline three white male lawyers who "behaved in a racially and sexually offensive manner" toward two female analysts -- one white, the other black. 

The attorneys mocked the Caucasian analyst for displaying pictures of prominent African-American civil rights activists and leaders on the walls of her office. They also commented that she had a 'tight ass' and referred to both women as 'lesbians' and 'carpet munchers.'

David Vladeck, a professor at Georgetown University's law school, is representing Hyatte.  He says at least six other African-Americans in the voting section have complained of similar treatment, filing internal complaints with the DOJ's EEO Office.

Hyatte does not seek the normal damages.  She wants to be promoted to analyst and seeks back pay for the period that she had been performing analyst work without receiving the title or the pay that goes with it.  Law.com has complete coverage of this developing story, Civil Rights Division Employee Sues DOJ, Alleges Discrimination.

It's not very common, but it does occasionally happen that a government agency is charged with committing the very same offenses that it is charged with eradicating.  See my earlier post, Some Might Consider It Ironic:  EEOC Charged With Violating the Overtime Exemption of the Fair Labor Standards Act.

The United States Supreme Court is anything but anti-employee.  The Supreme Court's decisions in Cracker Barrel and Gomez-Perez, filed yesterday, continue to broaden the limits of Section 1981 in favor of employees.

Recently, employee-advocate groups have made great sport out of attacking the Supreme Court’s employment-discrimination decisions--using them to raise the hue and cry for legislative reform. This week's rulings in CBOCS West, Inc v. Humphries (the “Cracker Barrel” case), and Gomez-Perez v. Potter show that employee advocates and plaintiffs’ lawyers have little to complain about.

The Background of Section 1981

The Court's 7-to-2 ruling in the Cracker Barrel case addressed a novel question of law: Whether there can be a claim of unlawful retaliation based on Section 1981. Section 1983, originally known as the Ku Klux Klan Act, was passed in 1871 during Reconstruction following the civil war.  The law was intended to provide a federal remedy for private conspiracies such as those being committed by the KKK, which the Southern state courts had been unsuccessful in prosecuting. In short, the law prohibits discrimination based on race in all aspects of contractual relationships, including written and unwritten employment contracts.

But Section 1981 contains no anti-retaliation language at all. What’s more, when Congress amended the law in 1991, it did not add an anti-retaliation provision.  By that time, many other anti-discrimination statutes had been enacted to explicitly included anti-relation provisions. Nevertheless, in yesterday's Supreme Court opinion by Justice Breyer, the Court concluded that retaliation claims may brought under the statute and are “well embedded in the law.”

The Significance of the Cracker Barrel Decision

The ruling is significant in at least two ways. First, unlike the perhaps more familiar racial discrimination claim under Title VII, damage awards under Section 1981 do not include monetary caps. Employers are therefore exposed to substantially higher damage claims.

Second, Section 1981 claims do not require an administrative filing with the EEOC. The statute of limitations for such claims is much longer for these claims as compared to Title VII.  The statute of limitations in a Section 1981 claim is borrowed from state law.  The limitations period from the analogous intentional tort claim is applied unless the limitations periods vary for different intentional torts.  In that case, the state's general personal injury statute of limitations should apply.

For Delaware employers, that means that, whereas a Title VII employee-plaintiff has 300 days to file a Charge of Discrimination, a Section 1981 plaintiff has more than twice as long, four years, to file a complaint in federal court. Further, since no administrative filing requirement exists under Section 1981, the employer may be unaware of a potential claim for a lengthy period of time.

The Significance of the Gomez Ruling

The Gomez decision is less significant in that it only applies to federal employees. In Gomez, the U.S. Supreme Court, in a 6 to 3 ruling, found that a cause of action for retaliation existed for claims brought pursuant to the Age Discrimination in Employment Act (“ADEA”). The ADEA has an explicit anti-retaliation provision applicable to private sector employees but no anti-retaliation provision applicable to federal workers. The High Court, nevertheless, concluded that Congress “intended” that retaliation be considered another form of “intentional discrimination” under the law.

Cracker Barrel and Gomez continue the Supreme Court trend that began with the Burlington and Faragher decisions, issued in 1998.  Since those rulings, the Court has taken an expansive view of anti-retaliation claims.  It will be interesting to see whether pro-employee groups and Plaintiffs' lawyers will be satisfied by these decisions in light of the decidedly expansive view of employee-retaliation rights that the Court has adopted.

 

Additional Resources:

The Legal Information Institute (LII) at Cornell has an excellent summary of the Cracker Barrel decision, as well as links to the actual decision and the numerous briefs.  The Gomez decision is also posted at the LII website.

HR Hero is an excellent resource for more information on the broader topics that were addressed in these cases, including Section 1981, Employment Retaliation, and Age Discrimination in Employment (ADEA).

 

[Update May 29, 2008:  SCOTUS Blog also has an in-depth analysis of both cases from the plaintiff-employee perspective.]

Yesterday, Delaware’s two largest public employers indicated that they were facing fiscal challenges. Governor Ruth Ann Minner announced a hiring freeze to address a $126 million dollar budget shortfall. New Castle County Executive Chris Coons announced a budget proposal requiring the use of $17.2 million dollars of its cash reserves.

The State and the County and other governments are feeling the effects of a softening economy. Since personnel wages and benefits costs make up a large part of their budgets, it is clear that public employees will be asked to make sacrifices as governments struggle to balance their budgets.

Sheldon Sandler and I will be discussing the state of public labor relations in Delaware at our Department’s upcoming Annual Seminar on April 16th. Hope to see you there.