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McKenna Employment Bulletin – July 2013


Supreme Court Defines Supervisor For Purposes Of Harassment Liability

In Vance v. Ball State University, the U. S. Supreme Court on June 24, 2013 held that a supervisor for purposes of vicarious liability for supervisor harassment in the workplace means a worker who can take tangible employment actions against the victim, including hiring, firing, failing to promote, reassignment, or some other action causing a significant change in employment status. The Court rejected the broader EEOC definition of supervisor which would include an individual who has authority to direct the employee’s daily work activities. See EEOC Enforcement Guidance: Vicarious Employer Responsibility for Unlawful Harassment By Supervisors.

In order to be liable for a non-supervisor co-employee’s harassment, the employee must show that the employer knew or should have known about the harassment and failed to take prompt and appropriate corrective action.

Employers May Have To Pay Their Interns

In Glatt v. Fox Searchlight Pictures, Inc. No. 11 CV 6784, Southern District of New York, the judge ruled that interns on two film production crews were employees entitled to payment with actual money. By not paying the interns, the employers violated the federal Fair Labor Standards Act. The Court ruled that the interns were improperly classified as unpaid interns under federal law and were actually employees who should have been paid. The Court applied the six criteria for determining whether an internship at a “for-profit” institution may be unpaid under the FLSA. The six criteria are: (1) the internship is similar to training that could be given in an educational environment; (2) the internship experience is for the benefit of the intern; (3) the intern does not displace regular employees, but rather, works under closer supervision of staff; (4) the entity derives no immediate advantage from the intern (and, on occasion, the entity’s operations may actually be impeded); (5) the intern is not necessarily entitled to a job at the conclusion of the internship; and (6) the intern has been notified, and understands, that he or she is not entitled to wages for time spent participating in the internship.

The Court rejected Fox Searchlight’s request to apply a “primary benefit test.” This test requires a determination as to whether the internship’s benefits to the intern outweigh the benefits to the engaging entity. The Glatt case was decided on June 11, 2013.

Comment: The increased risk of getting sued over an unpaid internship program may be incentive to hire interns and pay them the minimum wage. An employer who utilizes unpaid interns should make sure they meet the six criteria set forth in the Glatt case and the state law of the employer’s state.

Lactating Mother Has A Valid Title Vii Claim

The Fifth Circuit Appellate Court in EEOC v. Houston Funding II, 2013 U.S. App. LEXIS 10933, held that discharging a female employee because she is lactating or expressing breast milk constitutes sex discrimination in violation of Title VII. During her maternity leave, the mother inquired if she could express milk when she came back. The response was "...a strong 'NO. Maybe she needs to stay home longer." She inquired a second time and was told her position had been filled. The Fifth Circuit held that lactation is a related medical condition of pregnancy for purposes of the Pregnancy Discrimination Act of Title VII and that discharging a mother for lactating is a violation of Title VII.

$4 Million Award in a Retaliatory Discharge Case Is a Caution for Employers

In Holland v. Schwan’s Home Service, Inc., 2013 IL.App. (5th) 110560 (May 30, 2013), the plaintiff alleged that his former employer terminated him in retaliation for exercising his rights under the Illinois Workers’ Compensation Act. The issue of punitive damages was sent to the jury because there was evidence that the employer acted willfully and wantonly in engaging in a pattern of conduct to punish the plaintiff for filing his workers’ compensation claim, which ended in termination After his injury and return to work on restricted duties, the employer did not change the employee’s duties at all and included many activities outside the employee’s light- duty work restrictions even after new restrictions were placed upon the employee. Because of this, the employee’s injuries became worse. Nor did the employer give the employee authorization to attend physical therapy or modify his work schedule so that he could attend. The employer sent the employee a letter with a formal notice that because of the employee’s record of unreliability he was no longer qualified for his position. The jury awarded the employee $4,260,400, including $3.6 million in punitive damages and $400,000 for emotional damages. The Court ruled the damages were not excessive, given evidence of the employer’s subversive conduct, working plaintiff beyond his medical restrictions, and plaintiff’s emotional and financial damages.

No Sexual Harassment Where There Was No Physical Touching

In Westendorf v. West Coast Contractors of Nevada, Inc., 2013 WL 1285975 (9th Cir. 2013), a co-worker’s offensive sexual conduct toward a female employee was not sufficiently severe or pervasive to support a Title VII hostile work environment claim. The employee had gone to the co-worker’s workplace only once a week for three months and often did not stay the entire day. Further, the co-worker reportedly made offensive sexual remarks to the employee on only about four occasions. Finally, the harassment was not physical and the employee did not claim that her work suffered because of it.

This Employment Bulletin is intended to provide information of general interest and does not constitute legal advice. Readers should consult with their counsel before taking any action based on the information in this publication. All rights reserved. Copyright 2013, McKenna Storer. 

Categories Employment Bulletin Publications

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