McKenna Employment Bulletin – April 2015

• SUPREME COURT DECLINES TO RULE ON BREASTFEEDING IN THE WORKPLACE
• FEMALE ALLEGED AGE AND SEX DISCRIMINATION WHERE EMPLOYER STATED HE WANTED TO REPLACE HER WITH A YOUNG MALE
• MCDONNELL DOUGLAS BURDEN-SHIFTING APPLIES IN A PREGNANCY DISCRIMINATION ACT CASE
• YOUR AFFIDAVITS IN SUPPORT OF A TERMINATION MUST BE FACT BASED
• THE GENERAL CONTRACTOR WAS NOT THE INDIRECT EMPLOYER OF THE SUBCONTRACTOR’S EMPLOYEE
• LICENSE REQUIREMENTS AND BAD REFERENCES STOP A RACE DISCRIMINATION CLAIM

SUPREME COURT DECLINES TO RULE ON BREASTFEEDING IN THE WORKPLACE

The Supreme Court declined to hear a petition last month to overturn a decision by the 8th Circuit, U.S. Court of Appeals, in a pregnancy discrimination case. Last year, the federal appeals court in Ames v. Nationwide Mut. Ins. Co., 760 F.3d 763 (8th Cir. Iowa 2014), affirmed a grant of summary judgment to an employer in the sex and pregnancy-discrimination case, agreeing with the trial court that not having a lactation room available to the employee the day she returned from maternity leave and later having a department head encourage her to “go home to be with your babies” did not rise to the level of a constructive discharge.
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FEMALE ALLEGED AGE AND SEX DISCRIMINATION WHERE EMPLOYER STATED HE WANTED TO REPLACE HER WITH A YOUNG MALE

In Castillo v. Allegro Resort Mktg., 2015 U.S. App. LEXIS 4302, the U.S. Court of Appeals, Eighth Circuit, held that an employee sufficiently stated a claim for age and sex discrimination under the Age Discrimination in Employment Act and Title VII where she alleged that her superiors harassed her for taking maternity leave, that a superior stated that he wanted to replace her with a young male, and ultimately replaced her with a younger man. These allegations were sufficient to demonstrate a discriminatory motive for her later termination during a “reduction in force.”
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MCDONNELL DOUGLAS BURDEN-SHIFTING APPLIES IN A PREGNANCY DISCRIMINATION ACT CASE

In Young v. United Parcel Service, Inc., No. 12-1226, (March 25, 2015), the U.S. Supreme Court held that in a Pregnancy Discrimination Act case, a worker may show disparate treatment using indirect evidence through application of the framework of the McDonnell Douglas case. The McDonnell framework requires facts that non-pregnant employees were treated more favorably than pregnant employees under employment circumstances similar to the pregnant employee’s. In the Young case, the court found the worker created a genuine dispute as to whether the employer, UPS, provided more favorable treatment to some employees whose situation could not reasonably be distinguished from the plaintiff’s. The Supreme Court ruled that the U.S. Court of Appeals for the Fourth Circuit was to determine on remand whether the plaintiff also created a genuine issue of material fact as to whether UPS’ reasons for her treatment were pretextual.
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YOUR AFFIDAVITS IN SUPPORT OF A TERMINATION MUST BE FACT BASED

In Hutchins v. Chicago Board of Education, No. 13-3648 (March 24, 2015), 7th Circuit, the plaintiff alleged that the employer’s lay-off of plaintiff from her teaching position in favor of a successful candidate was due to the plaintiff’s race. The court found that the employer had honestly believed that the successful candidate had relatively better qualifications for the position. But, the court found that there was a question whether the employer’s belief was based on facts. In Hutchins, the record showed that the plaintiff had arguably better qualifications for the position. Further, the affidavit submitted by the employer contained negative references to plaintiff’s job skills that were not corroborated by documentation and were filled with unreliable hearsay. In addition the supervisor who made the decision was presented with incomplete information about the plaintiff’s favorable qualifications for the position.
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THE GENERAL CONTRACTOR WAS NOT THE INDIRECT EMPLOYER OF THE SUBCONTRACTOR’S EMPLOYEE

In Love v. J.P. Cullen & Sons, Inc., No. 13-3291, (March 9, 2015), 7th Circuit, a subcontractor’s employee alleged in a Title VII race discrimination action that the general contractor played an operative role in the plaintiff’s termination. The plaintiff and another individual had been involved in a workplace altercation. The record showed that the plaintiff received supervision at the worksite and was paid wages and benefits by the subcontractor, not the general contractor. Further, the plaintiff failed to show that the general contractor functioned as a de facto or indirect employer of the plaintiff for purposes of imposing liability under Title VII. The court used a 5-factor analysis in making its ruling. The court focused on (1) control over the plaintiff, (2) the type of occupation, (3) the entity’s responsibility for costs of operation, (4) the method and form of payment, and (5) the length of job commitment. The court found that all of these factors favored a finding that the subcontractor was the true employer. The fact that the general contractor insisted that plaintiff be removed from the worksite or that the subcontractor had no other job on which to place the plaintiff did not require a different result.
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LICENSE REQUIREMENTS AND BAD REFERENCES STOP A RACE DISCRIMINATION CLAIM

In Simpson v. Beaver Dam Community Hospitals, Inc., No. 14-2269, (March 11, 2015), 7th Circuit, the plaintiff filed a Title VII action alleging that the employer denied the plaintiff’s application for medical staff privileges because of the plaintiff’s race. The employer hospital’s non-discriminatory reason for the denial was based on (1) concerns over the plaintiff’s need to sit for an oral exam to obtain a Wisconsin medical license, (2) the plaintiff’s placement on academic probation while in residency, (3) existence of two uninsured medical malpractice claims, and (4) a negative reference given by one of the plaintiff’s former employers regarding the plaintiff’s behavior. Further, the plaintiff failed to present evidence to raise an inference that the decision-makers did not honestly believe those concerns about the plaintiff’s application or that the decision not to reward staff privileges was not based on those concerns. Finally, the fact that the plaintiff met all objective qualifications for obtaining medical staff privileges did not require a different result.
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