Suits In The WorkPlace

Pushing the Edge of the Religious Envelope

In contrast to the increasing sensitivity of courts to sexual harassment, a recent New York case, Ennis v. Sonitrol Mgmt. Corp., No. 02-CV-9070 (SDNY, Jan.25, 2006) seems to raise the bar for employees confronted by "in your face religious behavior."  In this case, the employee claimed that his manager hired only people with a close religious bond to him, engaged in office prayer, gave business advantages to his Christian recruits, and sang religious songs and left religious writings and a bible on the plaintiff's desk.  The plaintiff, who was Jewish, did admit that the manager never tried to proselytize him (although I can only imagine one or two more things that the manager could have done to try to convert the plaintiff ), and did not disparage the Jewish religion, although he did make comments about the plaintiff's absences during Jewish holidays.

Apparently unimpressed by the plaintiff's claims that he was yelled at, bullied and berated, the court held that plaintiff failed to tie the conduct to some religious animus.

This case is noteworthy because the EEOC has noted an increase in the number of religious discrimination claims being filed by people who are in workplaces where there is a substantial amount of outright religious activity.  This court seems to be saying that the conduct has to be pretty obvious and very direct in its religious hostility before there will be a supportable claim of religious discrimination.

Hostile Work Environment for Female Prison Guards

The California Supreme Court's reversal of summary judgment in favor of the California Department of Corrections last summer got wide play from most of the mainstream media. The key holding -- that a supervisor's sexual favoritism toward a subordinate can play out in conduct severe or pervasive enough to create a hostile working environment based on gender -- was simplified in a number of stories to say that "a boss who has an affair with a coworker may give the other employees a basis for a lawsuit."  Actually, the facts of the case were sufficiently egregious make a good case for an illegal hostile environment under existing law, without the office romance embellishment.

On the remand, the intermediate appellate court promptly reversed itself and found more than sufficient claims to establish a hostile work environment if proved true at trial, Miller v. Dep't of Corr., Cal.Ct.App., No. C040262, unpublished opinion (Jan.19, 2006).  The court also found that certain types of conduct that are typically used to establish the hostility of a work environment also fall into the category of adverse employment actions.  Things like undermining authority, publicly demeaning an employee, subjecting an employee to "ostracism" and the like, are now adverse actions under California law.

All of a sudden, that mandatory sexual harassment training that California employers must provide begins to assume some urgency.  If employers did not have sufficient incentive to police office romances before, they certainly do now, at least on the West Coast. 

Whistleblowing on a Title VII Basis

 When Sarbanes Oxley whistleblowing provisions became law, I had a real fear that somehow, somewhere, someone would figure out a way to connect Title VII protected activity with SOX's protected activity and create a hybrid claim that would be extremely difficult to defend under normal SOX procedures.  Just such a claim was raised in Smith v. Hewlett Packard (No. 2005-SOX-00088).  The administrative law judge determined that there was no viable claim under Sarbanes Oxley, but then thoughtfully outlined how a plaintiff could make a claim if he so desired. 

 The good news is that such a claim is hard to establish -- the plaintiff must show that his employer failed to disclose either litigation or pending litigation of such magnitude that it would have an effect on a company's value on the public market.  Those types of cases should be few and far between, but one does not have to think too long or hard to envision a situation where an embattled human resources manager raises a red flag of systemic discrimination, checks the company's annual report to its shareholders to determine that his claims are not disclosed there, and then files his report with the Department of Labor after he's disciplined for some unrelated reason.  It's only a matter of time before senior management types who have access to facts that might lead to class-wide employment litigation begin crafting these kinds of claims for job security or to enhance their severance packages.