“Bankruptcy?” you ask. “Why are employment lawyers talking about bankruptcy?” Well, in fact, there are times when bankruptcy can provide a defense to employment discrimination claims. It involves a principle known as “judicial estoppel,” which precludes a party from taking a position in a case which is contrary to a position they have taken in earlier legal proceedings. 

Although there is no uniform definition of judicial estoppel under federal law, the U.S. Supreme Court outlined three factors that courts may consider in determining whether to apply the doctrine: (1) whether the party took “clearly inconsistent” positions, (2) whether the court accepted the party’s earlier position, and (3) whether the party would obtain an unfair advantage if not estopped. Failure to disclose a pending claim (discrimination or otherwise) in bankruptcy can establish that the party took a “clearly inconsistent” position.  As a penalty, the court can invoke judicial estoppel to dismiss the later case entirely.

Federal courts agree that judicial estoppel should not apply when the failure to reveal the claim was a result of inadvertence or mistake. Courts disagree, however, as to what constitutes ‘‘inadvertence’’ and as to what, if any, showing of bad faith is required. Last week, the Ninth Circuit weighed in and provided its view on the appropriate analysis.Continue Reading (Plaintiff’s) Paradise Found? Ninth Circuit Allows Title VII Claim, Omitted in Bankruptcy Petition, To Proceed

Last week the Oregon Court of Appeals issued its opinion in Kemp v. Masterbrand Cabinets, Inc., holding that the plaintiff’s common law wrongful discharge claim was not precluded by the statutory remedies then available under Oregon or federal anti-discrimination laws, and that claim could properly be decided by a jury.  The case is another wrinkle in the ever-evolving and complex body of case law trying to define the contours of claims for common law wrongful discharge in Oregon.

Oregon Wrongful Discharge 101: A Quick Primer On When Common Law Wrongful Discharge Claims Can Be Precluded By Statutory Remedies

A claim for wrongful discharge is a common law tort claim developed by Oregon courts.  Many states’ courts have recognized the tort; Oregon’s Supreme Court first did so in the 1970s in Nees v. Hocks.  The specifics about what makes a discharge from employment “wrongful” and therefore tortious hinges on whether the employee’s termination violates an important public policy, usually where an employee is fulfilling an important job-related right or public duty.  As we have blogged about previously, courts have had difficulty wrestling with defining “wrongfulness” in specific cases, and divergent results can make it difficult to clearly understand which public duties and job-related rights are covered by the tort.  For example, being discharged for complaining about the employer’s fire code and safety violations (Love v. Polk County Fire Distr.) has been found wrongful, but a car salesman being fired for complaining about the employer’s allegedly deceptive sales tactics (Lamson v. Crater Lake Motors) or private security guards being fired for restraining or arresting concert-goers suspected of drug use and violent behavior (Babick v. Oregon Arena Corporation) was not.  Further, some courts have held wrongful discharge usually covers only conduct-based discrimination (taking action against an employee because of what they do, commonly known as “retaliation”), not status-based discrimination (based on a protected personal characteristic such as race, gender, or age), although this distinction is often inconsistently applied.Continue Reading Oregon Court of Appeals Continues Debate About Status of Wrongful Discharge Claims In Oregon in Kemp v. Masterbrand Cabinets, Inc.

On Monday, we blogged about the first of two recent U.S. Supreme Court decisions interpreting Title VII of the Civil Rights Act of 1964 (“Title VII”), University of Texas Southwestern Medical Center v. Nassar.  Today, we’ll discuss the second decision, Vance v. Ball State University, which addressed who is a “supervisor” for vicarious liability purposes under Title VII.  The decision provides clarity in a previously muddled area of law, and has important implications for employer liability for workplace harassment under Title VII.

As you probably know, Title VII prohibits discrimination in employment based on an individual’s race, color, religion, sex, or national origin, and similarly prohibits harassment resulting in a hostile work environment based on these characteristics.  The plaintiff in Vance was a catering assistant who filed a lawsuit claiming that she had been subjected to a racially hostile work environment at the hands of a catering specialist in her department.  Although the parties disagreed about whether the specialist was a supervisor, they did agree that she lacked authority to hire, fire, demote, promote, transfer or discipline the plaintiff.  The district (trial) court found that without this authority, the specialist was not a supervisor for whose actions the employer could be vicariously liable under Title VII.Continue Reading Part 2 of 2: Supreme Court Rules That “Supervisors” Under Title VII Must Have Power to Take Tangible Employment Actions

On one day recently, the U.S. Supreme Court issued employer-friendly opinions in two separate and long-awaited cases interpreting Title VII of the Civil Rights Act of 1964 (known simply as “Title VII”), the primary federal employment discrimination statute.  While both cases change little about what employers should be doing day-to-day to prevent unlawful discrimination in the workplace, both may have profound effects on the ability of employers to successfully defend against Title VII claims.  In fact, this was such a big day at the Supreme Court for labor and employment law that we’re going to blog about it twice!  Today, we blog about one of those cases, University of Texas Southwestern Medical Center v. Nassar, in which the Court increased the burden of plaintiff’s asserting retaliation claims under Title VII by requiring that they show their protected conduct was the “but for” cause of the adverse employment action.  

Later in the week, we’ll blog about the other case, Vance v. Ball State University, in which the Court narrowed the definition of “supervisor” to only those with actual authority to hire and fire employees, limiting the situations where employers can be liable for the discriminatory acts of lower-level employees. 

Nassar Requires “But For” Causation In Title VII Retaliation Cases Based On That Statute’s Structure

Title VII, as any reader of this blog probably knows, is the granddaddy of all federal anti-discrimination statutes. First enacted in 1964, its primary provision, 42 USC § 2000e-2, prohibits employers from taking employment action against employees “because of such individual’s race, color, religion, sex, or national origin.”  In 1991, Congress amended Title VII to, among other things, lessen the burden of proof on causation; plaintiffs bringing discrimination claims under Title VII need only show that a discriminatory motive was “a motivating factor…even though other factors also motivated the practice.” 42 USC § 2000e-2(m).  In other words, plaintiffs need not show that a discriminatory animus on the part of a manager was the only or even primary motive behind the employment action—if the employee’s race, gender, etc. was considered at all, the company could be liable for discrimination.  (Section 2(m) did create affirmative defenses that allow the employer to avoid money damages in these so called “mixed motive” cases if it can show that it would have taken the adverse action anyway regardless of the discriminatory motivation).

Continue Reading Part 1 of 2: The U.S. Supreme Court Issues Two Employer-Friendly Opinions On Title VII In Vance v. Ball State Univ. and Univ. of Tex. Southwestern Medical Center v. Nassar

As described by my colleague Howard Bye-Torre in his client advisory published earlier today, Mark Mazur, Assistant Secretary for Tax Policy at the Treasury Department announced in a Tuesday blog post that the effective date for imposing employer pay-or-play penalties (also known “shared responsibility payments”) will be delayed by the IRS until 2015.

The IRS is expected to…

Last year, we posted about a decision from the Southern District of Texas in which the court ruled that firing a woman because she was lactating or breast-pumping did not amount to sex discrimination under Title VII or the Pregnancy Discrimination Act (PDA).  The Fifth Circuit Court of Appeals recently reversed the district court’s decision. …

Coming as no big surprise since other states, like Utah and California, have been passing similar laws, the President of the Oregon Senate recently signed the final version of HB 2654, which will prohibit Oregon employers from compelling employees or applicants to provide access to personal social media accounts, like FaceBook or Twitter.  The law will also keep off limit to employers other sites that allow users to create, share or view user-generated content (like videos, still photos, blogs, videos, podcasts or instant messaging, email or website profiles), and also prohibits requiring that employees allow the boss to join or "friend" them on social media sites.  It also prohibits retaliation against any employee or applicant who refuses to provide access to accounts or to add the employer to his or her contacts list. The law becomes effective in January 2014.

Specifically, under the new law Oregon employers will not be allowed to:

  • Require or ask an employee or applicant to share a username or password allowing access to a personal social media account;
  • Require employees or applicants to add their employers to their contacts or friends lists;
  • Compel employees or applicants to access the accounts themselves to allow the employer to view the contents of a personal social media account;
  • Take or threaten to take any action to discharge, discipline or otherwise penalize an employee who refuses to share their account access information, allow their employer to view content, or add the employer to their contact or friends list (or fail or refuse to hire an applicant for the same things).

Continue Reading Oregon Legislature Passes HB 2654 Prohibiting Employers From Requiring Access To Employee Social Media Accounts

Once again, federal courts have halted efforts by the current National Labor Relations Board ("the Board") to expand its regulatory reach. Earlier this week, in National Association of Manufacturers v. NLRB, the Court of Appeals for the District of Columbia Circuit struck down the Board’s controversial attempt to require virtually all employers to post a notice advising employees about the requirements of the National Labor Relations Act ("the Act") and the sixty years of interpretations of the federal labor laws.

The Board’s notice-posting rule has had a long and contentious history.  The original petition was filed in 1993, but it was not until 2010 when the Board, by then with a majority of members appointed by President Obama, issued a proposed rule.  The final rule was published in August, 2011, and litigation challenging the Board’s authority began almost immediately.  As we have reported before, the Board had only mixed success.  One district court upheld the rule only in part, and another struck down the rule completely.  While those cases were on appeal, the posting requirement was stayed pending completion of judicial review.Continue Reading D.C. Circuit Nixes Board Notice Posting Rule In National Association of Manufacturers v. NLRB