Our business clients, obviously, live in the real world. On a day-to-day basis, they confront personal judgment calls that don’t fit the guidance in an employee handbook or clearly stated policy. Most employees are not looking for the lowest common denominator in dealing with what might grow into a discrimination claim; however, when problems are not resolved in the work place, it is federal anti-discrimination laws that control the outcome.

As a strong point, bear in mind that a claimant and a responding employer in a discrimination action may both be acting in good faith. Set aside the political demonizing. An employee may legitimately feel wronged and his or her employer may at the same time have a good defense. In other words these are not often smoking gun cases, where the outcome is apparent. Briefly reviewing two recent lawsuits in this arena may provide insight into how disputes arise and how-sometimes- they are resolved. Although both these cases ended in favor of the employer, clearly that is not always the case.

In the case of Tetreault v. Advanced Federal Services Corp., 2012 U.S. Dist. LEXIS 140992, U.S.D.C. E.D.Va. No. 4:11cv159 (Sept. 28, 2012), plaintiff brought an age and disability discrimination suit when she was terminated after failing to return to work after taking leave under the Family Medical Leave Act. Plaintiff had exhausted her allowable 12 weeks of leave within 12 months, so her termination for failure to return was a “legitimate and legal position.” Ms. Tetreault, though, complained that she was treated in a discriminatory fashion by her employer with regard to a practice of “making up” scheduled work hours. Apparently, plaintiff had a history of missing work without pre-approval, then making up the hours later. Such a practice wasn’t unique to Plaintiff: however, the employer had taken steps to tighten its procedures and eliminate the practice. The records showed that the change was known to Plaintiff-it had been enforced against her- and that other employees had been disciplined for similar conduct after the change had been implemented. The Court explained that the employer was entitled to change its policies.

Given the even-handed application of the policy, no inference of discrimination could be drawn. The company’s motion for summary judgment was granted.

In the case of Williams v. Ocean Beach Club, LLC, 2012 U>S. Dist. LEXIS 137554, U.S.D.C. E.D.Va. No. 2:11cv639 (Sept. 25, 2012), plaintiff alleges she had been slapped on her behind in a congratulatory fashion after closing a difficult transaction. She filed an internal complaint, which led to an investigation, as well as an EEOC discrimination claim. Sometime after the internal investigation but before the employer became aware of the EEOC charge, plaintiff was fired for poor work attendance. In this suit the trail judge granted the employer summary judgment. The judge determined, first, that Ms. Williams’ internal report was not “protected activity” under Title VII, and, second, that the single act complained of was not so severe and pervasive as to “constructively alter the conditions of her employment or create an abusive environment.” Ultimately, the court was satisfied that the employer had established a legitimate, non-discriminatory reason for plaintiff’s termination and that no material issue remained for trial.

Neither of these decisions is cataclysmic, but there were subtle factors that may have influenced the outcome and are worth noting. In Tetreault the court seemed to be impressed by the fact that the change of company policy with regard to “making up” absences had been enforced against other, non-complaining employees. If the defending company has changed its policy solely to target Ms. Tetreault, the results may have been different. And if the company had been aware of the EEOC filing when it terminated Ms. Tetreault, a case for retaliation may have survived per-trial motions. Similarly, in Williams was at greater risk. It is hard to fathom a working environment where a male senior “slapping the behind” of a female employee is acceptable behavior. The court did not find that conduct acceptable and did not condone it; but, another judge on another day may not have concluded as this judge did that conduct did not “create an abusive environment.”


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