Many workers believe they have been subjected to discriminatory comments by co-workers. Harassment by co-workers is sometimes referred to as a hostile work environment. It does not become actionable until management becomes aware of the harassment and fails to take action. But, what if the perceived discrimination is not necessarily discrimination? In Barnes v. Prairie View A&M, No. 14-15-01094 (Tex.App. Hou. 6/15/2017), Patrice Barnes, African-American, believed she was subjected to racist comments by co-workers. A long-time employee, she began complaining in 2007 about racist comments. A white co-worker observed ceiling insulation falling on people below and said it looked like an “old fashioned tar and feathering party.” Ms. Barnes explained to a third co-worker that tar and feathering referred to actions taken against slaves, and the white co-worker still made the remark again. Ms. Barnes accused co-workers of hiding paperwork and files, of asking her the same questions over and over, talking over her at meetings, etc.

The 14th Court of Appeals in Houston said this conduct did not amount to a hostile work environment. To constitute harassment, the actions by the co-workers must be severe or pervasive. The court addressed the tar and feathering remark and a second remark.  A secretary told one of Ms. Barnes’ clients to go to the white agent, not Ms. Barnes, because Ms. Barnes’ office was the “black” program. It found those two remarks, even if they were deemed racist, were not enough. Two remarks are not enough to constitute a severe or pervasive harassment. Prairie View argued the remarks were based on mis-understandings. The court was not willing to characterize them as racist. Indeed, we have to comment that tar and feathering has some notoriety in American history, but at least to my knowledge, not involving slavery. A remark that is capable of two or more different meanings will not be deemed to be racist.

Regarding the other allegations of conduct by co-worlers and her supervisor, the court found no connection to race. Ms. Barnes argued that since she was the only African-American in the office and because she was the only person subjected to those actions, then it must be race related. The court would not go there. Most courts will not infer racism from targeted actions alone. There has to be something more. The Fourteenth Court did agree that racism need not be explicit. But, the plaintiff has not pointed to any evidence which would support a racist animus on the part of the supervisor. The court of appeals affirmed the grant of summary judgment. See the decision here.

I have been told myself by potential clients that an entire office is discriminating against him/her. But, it is exceedingly difficult to show several employees are acting in concert based on race. That sort of allegation would need better evidence, not lesser evidence.

The Equal Employment Opportunity Commission has sued a local icon, Whataburger. The Tallahassee Whataburger, the EEOC alleges, harassed a manager after she refused to hire only white people. The EEOC claims the General Manager told the assistant manager to only interview people with “white sounding” names. Vanessa Burrous, instead, hired seven black employees and one white employee. The GM later chided Burrous for the hiring and told her the order came from upper management. The GM allegedly added that our customer base is white and we want workers who reflect that base. Ms. Burrous says she was harassed and forced to quit. See San Antonio Express News report.

Yes, it does violate Title VII to hire workers of a particular nationality or race, even if some customers might prefer persons of a particular race. If the plaintiff can support her case, Whataburger’s action would constitute a violation of Title VII. It is unfortunate that Ms. Burrous quit. It is difficult to show things were truly so bad that she had to quit – as opposed to simply wanting to quit. Whataburger is headquartered here in San Antonio.

The Texas Supreme Court heard oral arguments in the Clark v. Alamo Heights Independent School District case. The San Antonio Court of Appeals recognized same sex harassment in that case. The school district has now appealed the matter to the Texas Supreme Court. The lawyer for the district appears to be trying to un-do that decision. He argued that there was no evidence that the harassing coach, Anne Monterrubio, was gay or that she felt sexual attraction toward Coach Clark. I previously white about that Fourth Court decision here.

The Supreme Court is notoriously pro-employer. During the oral arguments, Justice Eva Guzman, asked as crude as Coach Monterrubio’s comments were, is there evidence that her comments were, is there evidence to indicate the comments were based on Coach Clark being female? That question suggests Justice Guzman is not ready to recognize same sex harassment. The comments were very crude, and clearly based on sex. The two female coaches discussed Coach Clark’s buttocks and breasts almost daily. If the justice has to ask whether those remarks were focused on the coach’s gender, then she will likely side with the employer.

See San Antonio Express News report here.

In Whitley v. Dr. Pepper Snapple Group, Inc., 2017 LEXIS 68040 (E.D. Tex. 2017), the Plaintiff’s son was diagnosed with autism spectrum disorder in September, 2015. Amy Whitley claimed Dr. Pepper discriminated against her because it denied coverage for Applied Behavior Analysis treatment, a form of therapy for autism spectrum disorder. Dr. Pepper’s Summary Plan Description initially made no reference to ABA treatment. The Plan did not list ABA treatment as excluded from coverage. In September, 2015, Amy Whitley met with an HR person for Dr. Pepper. The HR person said the Plan did not cover vocational rehabilitation training.

On Jan. 29, 2016, Dr. Pepper amended the Summary Plan Description to specifically exclude ABA treatment. The new Summary Plan Description was posted in May, 2016. Plaintiff Whitley filed an EEOC charge and later filed suit.

The employer moved for summary judgment and argued the amendment was intended to clarify the Plan. The Americans with Disabilities Act prohibits a denial of benefits due to a disability. The court found the plaintiff had an association with a person with a disability, her son. Dr. Pepper became aware of her son’s diagnosis in September, 2015. The court found the denial of coverage amounted to a denial of benefits, which is prohibited by the ADA. A term or provision of a health benefit plan may violate the ADA if it singles out a particular disability. The 2016 Amended Plan did single out and exclude from coverage ABA treatment.

The burden then shifted to the employer to provide a non-discriminatory reason for the exclusion. The court was not satisfied with the reason offered by the employer. The court found there was substantial issue of material fact regarding why the treatment was excluded. The court denied the motion for summary judgment, finding that the employee showed mgenuine issue of fact regarding whether the employer’s actions amounted to retaliation. See the decision here.

So, Eric Bolling is out at Fox News. Yet another Fox News personality is gone due to allegations of sex harassment. See CNN news report. I previously wrote about Mr. Boling’s troubles here. Mr. Bolling was accused of sending lewd text messages to several female co-workers.

The Fox News boys club may be nearing its end.

What is a disability? A potential client asked me that recently. A broken leg, for example, is not an impairment that would qualify for coverage under the Americans with Disabilities Act. To qualify as a disability, the impairment must be permanent or something like permanent. It must also be serious. In Datar v. National Oilwell Varco, L.P., No. 01-15-00541 ((Tex.App. Hou. 1/19/2017), the employee claimed a impairment involving his back. He said he had a lower back sprain that made it “harder” to sit down, to walk and to pick things up. The Court of Appeals found that an impairment does not rise to the level of a disability unless it affects a major life activity. Yet, the court apparently disregarded evidence that at least once, the employee was in such pain that he had to go to the emergency room and could not work. Too, the court relied on caselaw issued prior to amendment of the ADA in 2009.

The court discounted the plaintiff’s testimony that the sprain made it harder for him to work. It relied, instead, on the medical note that released him back to work. See the decision here. This will be a continuing issue in future cases. Many persons suffer from these debilitating back injuries.

In a recent decision, the Fifth Circuit addressed the difficult question regarding what level of reprisal is enough to constitute retaliation? In Cabral v. Brennan, 853 F.3d 763 (5th Cir. 2017), Javier Cabral worked for the U.S. Postal Service. He complained about discrimination several times. He was then placed on a two day suspension after he allegedly struck a supervisor with a postal vehicle. The employee accused the supervisor of badgering him with questions The supervisor asked him for his driver’s license and Mr. Cabral refused to provide it. Mr. Cabral was placed on suspension for two days.

The employee claimed the two day suspension without pay was in retaliation for his previous complaints of discrimination. The U.S. Postal Service, however, claimed the employee was placed on suspension because he was using a suspended driver’s license. He may have had an occupational driver’s license. But, if so, he failed to produce it when asked. USPS moved for summary judgment. It relied on the decision in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006) which held that acts other than straight suspension, demotion and termination could constitute retaliation. If the employer’s action was materially adverse, then the action could constitute retaliation under Title VII. The employer claimed the two day suspension was not materially adverse. The lower court agreed with the Postal Service and granted summary judgment.

Indeed, the defendant argued that the plaintiff had several DWI convictions on his record. The plaintiff was required to tell his supervisors about any driver’s license suspensions, but he had failed to do so. The plaintiff argued the suspension was retaliation for his prior activity opposing discrimination.

The Fifth Circuit agreed with the lower court. The higher court noted that the plaintiff in Burlington Northern was placed on unpaid leave for 37 days, causing her to fall into a deep depression. The plaintiff here, said the Fifth Circuit, had not shown that the suspension exacted a physical, emotional, or economic toll on him. Therefore, the employer’s action was not materially adverse. See the decision here.

One has to wonder about the facts of this case. Anytime an employee is accused of striking a supervisor, that is a case that is looking to be dismissed. The employee deemed the allegation. But, that sort of allegation forces the plaintiff to start out at a deficit. Perceptions do matter. The record from the lower court indicates Mr. Cabral was eventually paid for those two days of suspension.

Too, that the employer has filed several prior EEO complaints undermines his credibility. Within six months, he filed one EEO complaint and three grievances which alleged harassment and retaliation. Before that six month period, he had already filed two other EEO complaints. Some federal employees, fearing they will suffer some technical issue, think they must file a complaint for each and  every act of harassment. But, in reality, such employees appear to be “frequent filers.” Some lawsuits simply should not be filed.

Many employers have started posting their employee polices online, and not in hard copy format. If so, they will run into the issue presented in Doe v. Columbia North Hills Hospital, 2017 WL 1089694 (Tex.App. Ft. Worth 3/23/2017). Jane Doe was sexually assaulted by a male co-worker. When she sued her former employer, it invoked an arbitration agreement to which she ostensibly agreed. But, Columbia Hospital did not issue a paper copy of the employee manual. It did not ask for physical, paper copy signatures of employees acknowledging receipt of the policies. Instead, it posted the policies online and told employees they must review the policies. The review was part of the Hospital’s orientation. It required the employee to acknowledge she had received “orientation” on problem solving and grievance procedures. But, nothing in the paper specifically mentioned arbitration.

The employer invoked arbitration. The employer won at arbitration. The employee then challenged the alleged arbitration agreement. The Ft. Worth Court of Appeals rightly noted that basic contract principles require that a party to an agreement understand the agreement. A person drafting the agreement, for example, cannot include a provision in the agreement that has type face so small that the other party cannot read it. The court found that the online positing of an arbitration agreement did not provide notice to the employee. The word “arbitration” was never used in any warning to employees asking them to review the online policies. The statement about “problem solving” and “grievance procedures” said nothing about arbitration. The court added that even if the Hospital had specifically pointed to an arbitration policy and said be sure to review it, that might not impose a duty on the part of the employee to read the arbitration policy – unless the employer specified the term of the arbitration agreement. Other courts reviewing online postings have reached a similar result.

The court noted a recent Supreme Court of Alabama decision that found an employee who could have accessed an online agreement was different than a person who actually did access an online agreement. Ms. Doe did not dispute she was warned to review the online policy about grievances. Instead, she claimed the Hospital never mentioned the arbitration policy and she never read the policy. See the decision here.

The first business day after being pardoned, the toughest sheriff is on the attack. Sheriff Joe Arpaio filed a motion on Monday seeking to dismiss his conviction. He insists he was found guilty by a biased judge. But, he accused the first judge of being biased, as well. Accusing a federal judge of bias is a dubious claim in any case. But, when you have been there, done that already, it does seem insincere.

In any event, the toughest sheriff says he may run for office again. See CBS news report.

The motion will lead to an interesting legal issue. A pardon does not indicate innocence. It is more of a forgiveness. As far as I know, there is no requirement that the judge now withdraw her conviction of the toughest sheriff. Good luck, Sheriff.

The toughest Sheriff in the country and the President both hinted the President would pardon Sherrif Arpaio and he has indeed done just that. Pres. Trump pardoned Sheriff Joe Arpaio, even though, technically, the toughest sheriff has not yet been sentenced. See CBS news report. The toughest sheriff has been a loyal supporter of the President and that loyalty has now paid off. But, unfortunately, the toughest sheriff in the country is now excused from profiling Hispanics.