U.S. Justice Department Files Sexual Harassment Lawsuit Against Scotland County Agency and Employees

Earlier this month the United Sates Justice Department filed a sexual harassment lawsuit against Southeastern Community and Family Services, Inc., which is a public housing agency that administers the federal Section 8 voucher program in Scotland County.  The complaint, copied here, also names as defendants John Wesley, the Section 8 housing coordinator, and Eric Pender, a housing inspector. 

Generally, the complaint alleges that Wesley and Pender subjected voucher program participants and applicants to unwanted sexual comments, sexual touching and other sexual acts, and even conditioned or offered Section 8 benefits in exchange for sexual acts.  The complaint also alleges that the men punished women who rebuffed their sexual advances by taking adverse housing actions against them.  The claims are pursued under both Title VII of the Civil Rights Act of 1964 and the Fair Housing Act.

According to the complaint, Wesley's harassment dates back to the year 2000 and includes such acts as making unwelcome comments and sexual advances to applicants, touching applicants and himself (in their presence) in a sexual manner, and even exposing his genitals in the presence of Section 8 applicants and participants.  He is also alleged to have used the women's responses to his sexual advances as a basis for advancing or hindering applications for benefits.  Similar misconduct is alleged against Pender.  In these ways the complaint alleges sexual harassment of both the hostile work environment and quid pro quo varieties, albeit outside of the employer-employee relationship.

The action is notable in several respects.  First, it serves as a reminder of the kinds of comments and actions that frequently lead to sexual harassment litigation.  In addition, it confirms that sexual harassment presents a liability risk for employers not only as to employee victims, but also as to third-parties who are affected by the misconduct. The case also serves as a reminder that governmental entities are not immune from liability for sexual harassment.  Finally, we see that sexual harassment is prohibited not only by Title VII but by other federal laws prohibiting discrimination and that federal agencies other than the EEOC enforce the prohibition against sexual harassment.

Fourth Circuit Affirms Jury Verdict in Racial Harassment and Retaliation Action Despite Erroneous Causation Instruction

In E.E.O.C. v. A.C. Widenhouse, Inc. (06/24/2014), the Fourth Circuit Court of Appeals affirmed a substantial plaintiffs’ jury verdict in a case featuring claims of a racially hostile work environment, racially discriminatory discharge, and retaliatory discharge.  The lawsuit was brought first by the United States Equal Employment Commission (“EEOC”) on behalf of two black employees, and also included additional claims brought by Contonious Gill, one of the affected employees, after he intervened in the action.

Gill had worked for A.C. Widenhouse as a truck driver from May of 2007 until his termination in June of 2008.  During his employment, Gill was subjected to racial epithets, which included use of the “N” word and the term “porch monkey.”  He also heard racially charged jokes and witnessed displays of objects such as nooses and confederate flags.  Gill testified that he repeatedly reported these incidents to superiors, who did nothing to remedy the problem.  Gill was terminated in June of 2008 when he was unable to complete a delivery due to illness.  Gill alleged that the termination was due to racial discrimination as well as retaliation for his reporting the harassment.

The jury found Widenhouse liable on each claim and awarded Gill $105,000.00 in damages.  The judge, in turn, awarded Gill an additional $88,509 in back pay and prejudgment interest. The judge also ordered Widenhouse to pay $139,000 in attorneys’ fees and costs.

In its appeal to the Fourth Circuit Court of Appeals, Widenhouse contended that the trial court erred by instructing the jury on the law applicable to the claim of retaliation.  On this point, the trial judge instructed the jury that it should find Widenhouse liable for violating Title VII's retaliation prohibition if the jury found that retaliation for Gill's protected activity of reporting racial discrimination was a motivating factor in his termination.  This instruction was contrary to recent United States Supreme Court precedent holding that a retaliation plaintiff must prove that the plaintiff’s protected conduct (here, Gill’s complaints of harassment) must have been the “but-for” cause of the retaliatory action.  

While acknowledging the erroneous instruction, the Court of Appeals nevertheless affirmed the verdict because Widenhouse failed to show that the erroneous instruction affected the outcome of the retaliation claim.  In its analysis on this point, the Court found significant the jury’s verdict sheet, which noted the jury’s finding that the termination was “because of” his opposition to unlawful harassment.  The Court also found that the jury’s finding of liability for the same conduct under a companion Section 1981 federal law theory to demonstrate further a lack of prejudice from the erroneous instruction.

In affirming the jury verdict despite the erroneous jury instruction, the opinion also demonstrates that the Supreme Court’s recent pronouncement of a “but-for” causation requirement really is not the significant change in the law that employers initially believed.  Other recent cases decided by other courts have previously noted that there can be more than one “but-for” cause, and the opinion here seems to confirm the point.  Other commentators have discussed how the traditional analytical framework for retaliation claims appears to have been altered little by the distinction between “motivating factor” and “but-for” causation. We tend to agree that the but-for causation requirement is unlikely to dramatically alter the danger presented by retaliation claims when termination decisions closely follow an employee’s complaints of work place discrimination or harassment.

EEOC Files Age Discrimination Lawsuit Against Wal-Mart Stores of Texas

As we have previously noted on this blog, age discrimination claims continue to be asserted in large numbers, both in North Carolina and across the nation.  Employment discrimination on the basis of age is expressly prohibited by the Age Discrimination in Employment Act (“ADEA”).  Furthermore, in North Carolina, age discrimination is prohibited by the North Carolina Equal Employment Practices Act. 

Recently, the United States Equal Employment Opportunity Commission (“EEOC”) filed a civil lawsuit against Wal-Mart Stores of Texas, LLC due to alleged age discrimination.  In the lawsuit, the EEOC contends that David Moorman, a 54 year old manager of a Wal-Mart store located in Keller, Texas, was the victim of unlawful age discrimination in multiple respects.  The lawsuit is instructive in demonstrating the various types of discriminatory conduct and actions that can constitute actionable discrimination.

In the complaint that initiated the lawsuit, the EEOC contends that Mr. Moorman was subjected to frequent age-based taunts from his direct supervisor, including repeated references to “old man.”  According to the EEOC’s press release on the case, the supervisor also referred to Mr. Moorman as “old food guy,” and derided him with comments such as, “You can’t teach an old dog new tricks.”  It is further alleged that Wal-Mart took no corrective action, even after Mr. Moorman reported the conduct, that the misconduct increased, and that the store ultimately fired Mr. Moorman because of his age.

In addition, the lawsuit alleges that Wal-Mart unlawfully refused a request for accommodation of a diabetes related disability.  According to the lawsuit, Mr. Moorman requested reassignment to a store co-manager or assistant manager position after being diagnosed with the condition.  It is alleged that Wal-Mart refused to consider the request and simply rejected it without discussion.

On the basis of the above, the EEOC sued Wal-Mart for violations of the ADEA as well as the Americans with Disabilities Act (“ADA”).  The ADEA claims are multifaceted inasmuch as the complaint refers both to a hostile work environment and a discriminatory discharge. 

The lawsuit is a good example of how multiple federal causes of action can arise as a result of an employer’s treatment, or mistreatment, of older workers.  The alleged misconduct in this case occurred during a relatively brief time period, between February of 2011 and July 11, 2011, the date of termination.  Within this relatively brief time period, it is alleged that Wal-Mart created a hostile work environment, failed to correct it upon notification of the problem, and terminated a complaining victim.  It is not clear whether the EEOC contends that Wal-Mart terminated Mr. Moorman in retaliation for his reports of harassment, but a claim for retaliatory discharge is yet another risk for employers under this scenario.  Finally, the ADA claim represents still another statutory violation that the company is alleged to have committed within a relatively brief time frame.

While surprising to read, it is not uncommon to see allegations of this nature.  The “can’t teach an old dog new tricks,” is a particularly common statement that appears to be used with some frequency in the American work place. 

As explained, the EEOC has filed this particular lawsuit on behalf of the affected worker.  Notably, just two weeks after filing the lawsuit described above, the EEOC also reported a settlement with Wal-Mart Stores East, LP, in which the company was required to pay $363,419 to resolve an action for sexual harassment and retaliation.  These recent developments show that even the nation's largest companies continue to face substantial liabilities as a result of equal employment opportunity violations.

The majority of age discrimination lawsuits are brought by private law firms after the EEOC concludes an administrative review of a Charge of Discrimination.  The cases are quite complex, both in terms of procedural and proof requirements.  If you are confronting issues or allegations of work place discrimination or harassment, it is important to seek counsel from qualified attorneys in this area.

United States Supreme Court Ponders Definition of “Supervisor” in Harassment Case

On November 26, 2012, the U.S. Supreme Court heard argument in the employment law case of Vance v. Ball State University.  One issue in the case is whether the harasser is a “supervisor” such that the employer can be held vicariously liable for her actions under Title VII of the Civil Rights Act of 1964, the federal law that allows employees to sue for work place harassment.   

Many lower courts have defined “supervisor” narrowly as someone with the power to "hire, fire, demote, promote, transfer, or discipline" employees.  Other courts and the Equal Employment Opportunity Commission (EEOC) have adopted a broader definition, finding that someone who directs other employees’ daily work activities is a supervisor.  The distinction is important in employment discrimination matters.  If a supervisor is harassing an employee, the employer can be held liable.  On the other hand, if a mere co-worker harasses another co-worker, the employer is liable only if it knew or reasonably should have known about the harassment and did nothing to stop it.

The Vance case arises from a “hostile work environment” among the catering staff at Ball State University.  Maetta Vance, an African American female, alleged that she was subjected to racial hostility from her white co-worker, Saundra Davis.  Ms. Davis had some control over Ms. Vance’s daily work schedule, but Ms. Davis had no authority to fire her.  After years of alleged antagonism, Ms. Vance filed a lawsuit against the university.

In Vance, the U.S. Court of Appeals for the 7^th Circuit upheld a lower court’s decision to throw out Ms. Vance’s lawsuit.  In doing so, the 7^th Circuit endorsed the narrow definition and affirmed the trial court’s decision that since Ms. Davis could not fire Ms. Vance, she was not a “supervisor” and the university could not be held vicariously liable for her actions.  

According to several news sources, the Court hinted during oral arguments that Vance ultimately may not be the best case for resolving the question of who is a supervisor because of the disputed facts of the case.  However, if and/or when the Court does ultimately decide the issue, its holding is likely to have a significant impact on North Carolina employment law, as the Court’s decision could greatly expand or restrict the ability of employees to bring harassment complaints against co-workers that do not meet the narrow definition of “supervisor.”  

If you are confronting issues of work place harassment, it is important to speak with experienced North Carolina employment lawyers, as employment discrimination law raises many complex legal questions shaped by an evolving body of case law.  Please feel free to contact me directly at (336) 333-6375 to discuss this Supreme Court activity or North Carolina employment law matters.  For more information about my Greensboro law firm of Sharpless & Stavola, please visit our website at www.sharpless-stavola.com.