Monday, March 26, 2012

Maryland High Court Dodges Employment Law Bullet

This post is about a case we simply can’t resist reporting on. This is, after all, a blog that analyzes and provides insight on developments in Maryland employment issues. Thus, when our State’s highest court, the Maryland Court of Appeals, is sued as a defendant for violating the FMLA and the case goes all the way up to the U.S. Supreme Court, well, that’s news! Thankfully, for the taxpayers of Maryland, the Court of Appeals emerged victorious.

In Coleman v. Court of Appeals of Maryland, the Supreme Court held that a State cannot be sued for damages by an employee under the Family Medical Leave Act’s (“FMLA”) self-care provisions. While this decision doesn’t relieve the burden facing private-sector employers under the FMLA, and is based more on the law of State sovereignty than employment law, it nonetheless offers an interesting look at how the courts responsible for applying the law can sometimes (arguably) run afoul of it.

Wednesday, March 21, 2012

Discriminating in Severance Pay Will Cost You

For most employers, the object of offering severance pay in exchange for a release is to prevent the former employee from suing and to “buy” peace. When the County of Chesterfield, Virginia, made a severance offer to one of its long-time, female employees, however, it created a Title VII discrimination lawsuit that would not otherwise have existed. That’s a major oops! 

Karla Gerner began working for Chesterfield in 1983. In 2009, after having served the previous 12 years as the Director of Human Resources Management (as it turns out, Gerner clearly knew her stuff), she was informed that, due to re-organization, her position was being eliminated. Gerner was told that if she voluntarily resigned and waived any cause of action against Chesterfield, she would receive severance in the form of three months pay and health benefits. There ensued one problem for Chesterfield: Gerner said “no thanks, see you in court.” She claimed that Chesterfield had not offered her the same “sweetheart” severance package it made available to male employees with similar circumstance, some of whom were being kept on the payroll for up to 6 months with salary and benefits. When she refused her offer, Chesterfield fired her retroactively.

Train your Employees or Risk Trial on Harassment Claim

In Dulaney v. Packaging Corp. of America, the Court of Appeals for the Fourth Circuit recently reversed summary judgment entered in favor of an employer in a suit alleging gender discrimination and sexual harassment under Title VII of the Civil Rights Act of 1964, and similar state laws. The appellate court found that questions of fact existed regarding (1) whether the Packaging Corp. of America (PCA) took a tangible employment action against its employee, Dulaney, and (2) whether there was a sufficient nexus between Dulaney’s harassment and her termination to make the termination actionable. Essentially, PCA’s motion for summary judgment was undone by easily correctable policy and training issues.

Among other things, Dulaney alleged submission, or quid pro quo, sexual harassment, whereby in order to keep her job, or to avoid loss of pay, she was required to engage in sexual acts with her nominal supervisor. The nominal supervisor was a co-worker who did not directly supervise Dulaney, but was given additional authority by PCA, including the ability to assign work to other employees, to assess points against them under PCA’s progressive discipline policy, and to send employees home early without pay.

Sunday, March 18, 2012

Trangender Discrimination Protection Expands in Maryland

Add Baltimore County to the growing list of Maryland counties protecting transgender people from discrimination in the workplace, joining Baltimore City and Howard and Montgomery counties.  The Baltimore County Council approved hotly debated legislation on Tuesday, February 21, 2012, that prohibits discrimination on the basis of gender identity and expression and on sexual orientation in employment, housing, public accommodations and financing.  Other local jurisdictions in Maryland that have anti-discrimination laws such as Prince George's County have not yet addressed the issue.  The State of Maryland Human Rights Act protects employees based on sexual orientation but has not yet added gender identity to its list of protected classes.

While the federal courts grapple with the question of whether transgender discrimination is sex discrimination under Title VII, the federal law which prohibits discrimination in the workplace based on sex, many local jurisdictions like Baltimore County have taken the more direct and expedient legislative approach.  According to the Human Rights Campaign more that 160 counties and cities as well as 16 states and Washington, D.C. have transgender anti-discrimination laws.

How To Protect your Company from Harassment Claims

Perhaps too often we bring you news of situations gone awry in the workplace. In this instance, we present a template that demonstrates how employers can avoid costly litigation. In Crawford v. BNSF Railway, Co., a federal appellate court recently affirmed the entry of summary judgment in favor of an employer asserting the Faragher-Ellerth affirmative defense.