1 Hunter Johnson Constangy, Brooks, Smith & Prophete, LLP 214-646-3421 [email protected].

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Hunter JohnsonConstangy, Brooks, Smith & Prophete, [email protected]

SELECTED RECENT U.S. SUPREME COURT DECISIONS

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EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2208 (2015)

• Abercrombie’s “Look Policy” for employees prohibited “caps” (but did not define “caps”).

• A Muslim applicant who wore a headscarf, interviewed for a position and was given a rating by the assistant manager which qualified her to be hired.

• But the assistant manager sought guidance from the district manager as to whether the headscarf would violate the “Look Policy.”

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EEOC v. Abercrombie & Fitch, contd.

• The assistant manager said that she believed the applicant wore the headscarf because of her faith.

• The district manager said that would violate the Look Policy, as would all other headgear (whether worn for religious reasons or not), and directed that the Muslim applicant NOT be hired.

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• The EEOC sued on the applicant’s behalf, claiming that Abercrombie had failed to accommodate the applicant’s religion in violation of Title VII.

• The district court granted the EEOC’s motion for SJ, held a trial on damages, and awarded $20,000. But the Tenth Circuit reversed and gave SJ to Abercrombie.

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• The Supreme Court reversed, holding that the Tenth Circuit had applied the wrong standard in granting SJ to Abercrombie. Justice Scalia wrote the opinion.

– The Tenth Circuit had held that Title VII liability for failing to accommodate religion attaches only when the applicant or employee provides actual knowledge of his or her need for an accommodation.

• The Supreme Court held that Title VII “does not impose a knowledge requirement” (unlike the ADA, for example) and refused to add words where Congress had not. See Abercrombie, 135 S. Ct. at 2032-33.

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• Instead, the Court established the following “rule for disparate-treatment claims based on a failure to accommodate a religious practice”:

• An employer may not make an applicant’s religious practice, confirmed or otherwise, a motivating factor in employment decisions. See id. at 2033.

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• Supreme Court also rejected Abercrombie’s argument that a neutral dress code could not constitute intentional discrimination.

– “Title VII does not demand mere neutrality with regard to religious practices – that they be treated no worse than other practices. Rather, it gives them favored treatment, affirmatively obligating employers not to ‘fail or refuse to hire or discharge any individual . . because of [his or her] religious observance and practice.”

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• Reversed and remanded to the Tenth Circuit to evaluate whether Abercrombie was entitled to SJ under the new standard.

• Outstanding questions:

– Under the new test, what will an employer have to show to obtain SJ?

– Will employers see an increase in requests to relax neutral dress codes to accommodate an employer’s or applicant’s religious beliefs? (Probably).

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Young v. United Parcel Service, Inc., 135 S. Ct. 1338 (2015)

• Plaintiff, Peggy Young, was an air-package delivery driver for UPS. She had to regularly lift packages weighing as much as 70 pounds.

• She became pregnant and was placed on a 20-pound, and then a 10-pound lifting restriction.

• UPS required her to go on unpaid medical leave and did not offer any accommodations that would allow her to continue working.

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Young v. United Parcel Service, Inc., contd.

• Pregnancy Discrimination Act (incorporated into Title VII)– Establishes that Title VII’s prohibition against sex

discrimination applies to discrimination based on pregnancy and pregnancy-related conditions.

– Requires employers to treat “women affected by pregnancy . . . the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.”

– 42 U.S.C. § 2000e(k)11


• Young sued for pregnancy discrimination, holding that UPS had accommodated other drivers who were “similar in their inability to work” (e.g., drivers who were disabled under the ADA, drivers who had become disabled at work, and drivers who had lost DOT certification).

• The district court granted SJ to UPS (Young not similarly situated to other EEs), and the Fourth Circuit affirmed.

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• The Supreme Court (majority opinion written by Justice Breyer) reversed SJ for UPS, rejected both parties’ arguments, and established a new standard (based on the McDonnell Douglas framework).

• A woman claiming discrimination based on a failure to accommodate pregnancy must first make a prima facie case.

• See Young, 135 S. Ct. at 1354.

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• Elements of a prima facie case for pregnancy discrimination based on a failure to accommodate pregnancy:

– Plaintiff was a member of the protected class (i.e., pregnant or had a pregnancy-related condition)

– Plaintiff sought a reasonable accommodation.

– ER did not accommodate her.

– ER did accommodate others “similar in their ability or inability to work.” (P need NOT show that she and others were similar in all but pregnancy).

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• If the plaintiff makes a prima facie case, ER must articulate a legitimate, nondiscriminatory reason for denying the accommodation.– SC stated that the expense or inconvenience of

accommodating a pregnant EE is NOT a legitimate, nondiscriminatory reason for treating her differently.

– See id. at 1354.15


• If the ER articulates a legitimate, nondiscriminatory reason, Plaintiff must show that the reason is a pretext for pregnancy discrimination.

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• Supreme Court noted that Plaintiff may show a fact issue as to pretext (thus defeating SJ) by “providing sufficient evidence that – (1) the ER’s policies impose a significant burden on

pregnant workers, AND

– (2) the ER’s legitimate, nondiscriminatory reasons are not sufficiently strong to justify the burden, but rather – when considered along with the burden imposed – give rise to an inference of intentional discrimination.”

See id. at 1354.17


• Examples of evidence that MIGHT show pretext (per the Supreme Court):

– Evidence that ER accommodated a large percentage of non-pregnant workers while accommodating a relatively small percentage of pregnant workers.

– Evidence that ER has multiple policies about accommodations for non-pregnant workers while having no pregnancy accommodation policies. See id. at 1354-55

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• Takeaways:• Must wait and see how lower courts apply Young to get

guidance for particular scenarios.

• On June 25, 2015 (a few months after Young), the EEOC issued updated Enforcement Guidance on Pregnancy Discrimination that kept some of its pre-Young (July 2014) but did tweak it in some respects, such as incorporating the SC’s view that women may be able to prove pregnancy discrimination if ER accommodated some workers but refused to accommodate pregnant women.

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• Takeaways, contd.• ERs also should check to see if they do business in

any states or localities that have pregnancy-accommodation laws. (Several states and localities do. Texas currently has one for local government employees).

• Don’t forget potential obligations under the FMLA, ADA, and worker’s compensation, or other laws.

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Obergefell v. Hodges, 135 S. Ct. 2585 (2015)

• Several same-sex couples filed a lawsuit challenging multiple state laws (those of Michigan, Kentucky, Ohio, and Tennessee) alleging that such laws violated the Equal Protection and Due Process Clause.

• In a 5-4 decision, the Supreme Court agreed. Justice Kennedy wrote the majority opinion.

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Obergefell v. Hodges, contd.• The Supreme Court held that the right to marry

is a fundamental right that could not be deprived under the Due Process and Equal Protection Clauses of the Fourteenth Amendment prohibited. Id. at 2604-06.

• The Court also held that the Fourteenth Amendment requires States to recognize lawful same-sex marriages performed in other States. Id. at 2607-08.

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Obergefell v. Hodges, contd.

• What about religious institutions and persons who object to same-sex marriage on religious grounds?

• The Supreme Court gave a generalized answer that must be fleshed out over time.

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• “The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.”

• Id.at 260724


• The Hodges decision will have an immediate impact on employers under various laws. Make sure your policies are compliant. An exhaustive discussion is beyond the scope of this presentation, but here are a few highlights.

• The FMLA (leave to care for a “spouse”).• ADA (prohibits discrimination on the basis of

“association” with an individual with a disability).• Employee benefits laws (ERISA and other federal/state

laws).

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Preserving Privilege

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Attorney-Client Privilege

Attorney-client privilege is a legal concept that protects certain communications between a client and the attorney for the purpose of providing the client legal advice and keeps those communications confidential.

Company is the client; privilege belongs to the company

Communications include: oral conversations, documents, reports, emails, and other form of communications

Attorney-Client Privilege protects these communications from being disclosed to third parties, including opposing parties in litigation.

Who is the Attorney?

• Outside counsel and his/her agents– Paralegals– Typically, third parties retained by counsel to

assist in the legal matter (financial advisors, consultants)

• In-house counsel in the company’s legal department.

In-house Counsel

o Privilege only exists when the attorney is acting in his/her capacity as an attorney.

o For in-house counsel, if the attorney is acting on behalf of the legal department and is giving advice in a professional legal capacity, the privilege will attach to the attorney’s legal analysis.

o The attorney has to be acting in the capacity as an attorney and not simply have an attorney title.

Making or Seeking Legal Advice

• The communication needs to be the result of a request for legal advice.

• Privilege will not apply to communications between non-legal employees where in-house counsel is copied merely to cloak otherwise non-privileged messages. A court could construe this as an attempt to conceal or withhold documents.

Best Practices• When legal advice is being sought (directed to

an attorney), clearly label the request in your memo/email, such as:

• “Request for legal advice”

• “Confidential: Privileged Attorney-Client Communication”

Investigations, Privilege and Confidentiality

o Regardless of whether the attorney-client privilege is invoked, you should conduct the investigation with the assumption that communications may be required to be disclosed under a court order.

o We want to find facts

– Prevent Recurrence

– Corrective Action

– Training

o “Don’t put it in an email unless you want to read it in Court”

Investigations - things to keep in mind

• Do not take notes and do not create documents, unless directed by an attorney

• Stick to the facts (Who, What, When, Where, Why, How), Avoid conclusions/opinions/speculation

• Comply with all company document retention guidelines

• Legal Hold – may be put in place depending on the matter involved– If a legal hold is in place, relevant documents are retained until the hold

is lifted

Work Product Privilege

• Documents prepared in the ordinary course of business which would have been created in similar form regardless of litigation are not protected.

• Other party could try to seek disclosure of documents labeled “work product” upon a showing of good cause for such disclosure (undue hardship).

Work Product Continued• Applies to materials prepared BY and

FOR an attorney and can include: • Information gathered or prepared at an

attorney’s direction;

• Information prepared by third parties (consultants); and

• Information prepared by an attorney and disseminated to third parties.

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How the Amendments to the FRCP Impact Legal and Human Resources

The process of initiating a lawsuit is sped up:

• The new version of Rule 4(m) reduces the time to serve a lawsuit from 120 to just 90 days.

• Discovery can start sooner too. According to new Rule 26(d)(2), requests for production can be served 21 days after the defendant is served with the summons and complaint, even if the Rule 26 scheduling conference hasn’t been held yet.

Discovery is now held to a “proportionality” standard

•The amended Rule 26(b) defines discovery as that which is proportional to the needs of the case.

Failure to Preserve Electronically Stored

Information• The court had wide discretion to punish the failure to

preserve ESI.

• The Amended Rule 37(3)(1) provides the court with a variety of remedies to address failures to preserve ESI that “should have” been maintained, including “measures no greater than necessary to cure” the loss of ESI or resulting prejudice.

Pretrial Conferences and Scheduling Orders

• Amended Rule 16, the parties or their counsel must now personally appear at the pretrial scheduling conference.

• Further, the presiding judge will be required to issue a scheduling order within 90 days after any defendant has been served or 60 days after any defendant has appeared, whichever is earlier.

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Litigation Holds: Ten Tips in Ten Minutes

• Plaintiff’s litigation request: “Identify all efforts XYZ Company has engaged in to preserve information and documents in this matter.”

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Watch for Triggers

• One must preserve upon the reasonable anticipation of litigation. There is no bright line rule.

• The duty to preserve typically arises long before filing or service yet remains unpredictable. Cases have held duty arose from 4 days to 2,682 days (7.3 years) before suit filed.

• Traditional triggers include receipt of attorney demand letters, a notice of a discrimination charge, and lawsuits.

• Examples of other triggers include a group of supervisors talking about reporting harassment; internal complaints by employees; a subpoena for information; notice of pre-suit deposition; or notice from the DOL, EEOC, OSHA or any other governmental agency involved in an investigation.

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Don’t Procrastinate• Preservation “as soon as is practicable.”

• Although daunting, delaying even a few days could result in destruction of relevant evidence which exposes the company and its legal counsel to sanctions.

• Place a high priority on responding to preservation issues.

• Don’t get mired down in form over substance. Consider sending out a quick email notice if it appears that the data could be lost such as text messages, followed by a more formal document when time permits.

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Send Hold to Key Players

• Key players include anyone likely to have relevant information about the matter.

• Key players in an employment matter include: IT department; in-house counsel; human resources; managers and supervisors; co-workers; and any alleged harasser.

• Don’t overlook third parties, including independent contractors, temporary staffing companies, client companies and vendors with whom the complainant interacted.

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Identify What Documents and ESIis Discoverable

• Scope is broader than just relevant. Also includes documents and information “reasonably calculated to lead to the discovery of admissible evidence.

• Avoid using boilerplate or generic directive which simply asks employees to preserve “relevant evidence” without providing any practical guidance on what that means.

• Insufficient litigation hold directive can be as sanctionable as no directive.

• Discoverable documents and information in an employment case include: emails, text messages, voice mail messages; payroll and time records; personnel files; supervisor files; leave files; social media pages; and paper documentation.

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Put it in Writing, and Be Specific

• A formal letter or email will suffice. If sending an email, ask for a reply from the employee that states that they: “agree to comply” or “agree to comply and have documents.”

• Clearly identify the reason for the hold. “We received notice of a potential lawsuit by a former employee, Sue Happy, alleging claims of race and disability discrimination.”

• Prohibit the destruction of relevant documents. Suspend the routine or automatic deletion of files that are discoverable.

• Instruct the recipient to immediately identify and forward the originals and all copies of any documents or information that they are aware of.

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Think Outside the E-Mail Box

• Consider all sources of data, and look beyond just e-mail, calendar entries, contacts and task lists.

• Instruct the recipient to consider preserving data and information in their cell phones, laptops, personal computers at home, tablets, thumb drives, cloud based storage services such as Dropbox, and social media sites.

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Follow Up

• Effective litigation holds involve more than an initial hold notice.

• Duty to amend or supplement litigation arises as soon as new information is received.

• Follow up when new issues have been raised, such as new clams being asserted in amended pleadings.

• Calendar a date to follow up on the litigation hold letter to ensure that any missed employees or sources of information have been notified.

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Don’t Be Afraid to Bring in Help

• There may be times when outside consultants need to be retained to image data and help with preservation efforts.

• Some cases such as trade secret misappropriation cases, require the imaging of laptops, phones, storage devices, and cloud based storage accounts.

• Imaging relevant devices typically gives you control over the information rather than having the adverse party have possession and control over the devices.

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Plan Ahead• Have a litigation readiness plan so that, when necessary, a litigation hold can be effectively enacted.

• Have a form litigation hold memorandum drafted to use when needed.

• Have a list of key personnel that need to be included in the hold circulation.

• Identify in advance where data is stored in active systems, backups, archival systems, and other locations.

• Be familiar with document retention and destruction policies and practices.

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Additional Items to Include in Hold

• Include a conspicuous statement that the memorandum is an ATTORNEY CLIENT PRIVILEGED COMMUNICATION and not to be disclosed.

• Ask that original files be produced.

• Ask the recipient to reply via email that they agree and have documents or agree.

• Include a reminder that the company prohibits retaliation against an employee or former employee for making a complaint against the company or for assisting in the investigation of a complaint.

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FOR MORE INFORMATION...

Hunter JohnsonConstangy, Brooks, Smith & Prophete, [email protected]

1 Hunter Johnson Constangy, Brooks, Smith & Prophete, LLP 214-646-3421 [email protected].

Documents

Transcript of 1 Hunter Johnson Constangy, Brooks, Smith & Prophete, LLP 214-646-3421 [email protected].