Employer Confidentiality Policy Yields to Title VII’s Participation Clause in Recent Fourth Circuit Opinion

By Joseph E. Hjelt

Employees who face discriminatory treatment at work are often faced with the dilemma of how to substantiate their claims, and how to guard against the risk that their employer will hide or destroy evidence. Frequently, employees choose to take possession of substantiating evidence by forwarding emails to their personal address, or by making copies of documents which would otherwise remain internal. In doing so, employees sometimes violate employer policies governing confidential and proprietary information. On other occasions, these actions violate the law. The Fourth Circuit’s recent opinion in Netter v. Barnes, No. 18-1039, 2018 U.S. App. LEXIS 32358, (4th Cir. Nov. 15, 2018), establishes that employees who violate internal confidentiality policies in the furtherance of a Title VII investigation are protected by the “participation clause” of the statute’s retaliation provision, while those who break the law while doing the same are not.

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The Office Christmas Party: Conundrums and Caveats

By William Joseph Austin Jr.

There, in the very title of this article is the first and fundamental conundrum—can we, should we, call it a “Christmas party”?  Boldly, I say yes.  There is certainly a school of thought that, for the sake of inclusiveness and sensitivity to diversity, would rename the event generically and perhaps even put it off until bleak January.  However, that certain feast celebrated shortly after the Winter Solstice has been known as “Christmas” for centuries, and the word pervades culture and commerce from some point in time soon after Halloween until on or about the feast of the Epiphany.  The “Christmas party” to many is that “one crowded hour of glorious life,” which the poet says “is worth an age without a name,” aka the otherwise nameless, uninspiring “holiday party.”

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District Court Holds that Pregnancy Fits Within the NCEEPA’s Prohibition of “Sex” Discrimination

By Sean F. Herrmann

In 1983, the North Carolina Supreme Court decided N.C Dept. of Corrections v. Gibson, 308 N.C. 131 (1983). Gibson frequently appears in wrongful discharge in violation of North Carolina public policy (“WDPP”) briefs, especially when the plaintiffs’ claims rely on the North Carolina Equal Employment Practices Act (“NCEEPA”) for their underlying public policy. Gibson adopted Title VII of the Civil Rights Act of 1964’s “evidentiary standards and principles of law insofar as they are not in conflict with [North Carolina]’s statutes and case law.” Attorneys almost always cite Gibson for the “evidentiary standards” bit—they are about to fill ten pages with McDonnell Douglas burden shifting analysis and need a reason for doing so. The “principles of law” language often goes untouched.     

But that wasn’t the case in Stasinopoulous v. L.M. Sandler & Sons, Inc. et al, 5:18-cv-245, where the United States District Court for the Eastern District of North Carolina looked to federal principles of law and held that pregnancy-based discrimination qualifies as sex-based discrimination under the NCEEPA.

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Will the Supreme Court Take Up LGBT Rights Under Title VII?

By Robin Shea

According to news reports, the U.S. Supreme Court will soon consider, and hopefully decide, whether to review lower court decisions addressing whether sexual orientation and gender identity discrimination violate Title VII of the Civil Rights Act of 1964.

Virtually everyone agrees that in 1964, when Title VII was enacted, no one thought “sex” meant anything other than biological males and biological females. However, interpretations of the word “sex” have obviously changed since 1964.

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Works For Me Episode 3: Unlawful Employee Terminations

In our third episode of “Works For Me,” our team hashes out the basics of unlawful employee termination. We’ll take on three issues, from the employer and employee sides:

  • What is at-will employment?
  • For what reasons can an employer fire someone?
  • What can do you do if you believe you’ve been fired unlawfully?

Please tune in and let us know what you think. You can email Grant at gbo@wardandsmith.com.

SCOTUS Interprets the ADEA to Apply to State Entities Regardless of Size

By Zachary Anstett

Last week the Supreme Court held in Mt. Lemmon Fire District v. Guido, No. 17-587, 2018 WL 5794639 (U.S. Nov. 6, 2018), that state and local governments are “employers” covered by the ADEA regardless of their size. The unanimous opinion authored by Justice Ginsburg affirmed the Ninth Circuit’s decision that 29 U.S.C. § 630(b)’s two sentence structure and the expression “also means” at the start of the second sentence establish separate categories of what it means to be an “employer” under the ADEA. The unanimous decision did not include Justice Kavanaugh.

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Employee Duties in the Interactive Process: Recent Opinions within the Fourth Circuit

By Andrew J. Henson

Employees with disabilities face a dilemma when a requested accommodation for their disability is denied by management. Many employees will feel demoralized or offended at the rejection of a request for an accommodation, which they believe to be medically necessary because of their physical or mental limitations. In this space, however, for employees to successfully preserve their rights under the Americans with Disabilities Act (“ADA”), employees and their counsel must be mindful of the employees’ responsibilities to engage in the interactive process before filing a lawsuit, particularly in light of an increasing number of district court opinions in the Fourth Circuit dismissing an employee’s claim where the employee was found to have caused the interactive process to break down.

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Fourth Circuit Update

By Sean F. Herrmann

The Fourth Circuit has been relatively quiet on the labor and employment front. But on October 19, 2018, through an unpublished per curium opinion, it affirmed summary judgment in an employment case — Nzabandora v. Rectors and Visitors of the University of Virginia; Commonwealth of Virginia, No. 17-2350 (4th Cir. Oct. 19, 2018). So let’s take a look at it. 

The plaintiff appealed the U.S. District Court for the Western District of Virginia’s dismissal of her disparate treatment (race), retaliation, and hostile work environment Title VII claims. The plaintiff also brought a race discrimination claim under 42 U.S.C. § 1981, but she did not argue it on appeal, so she waived it. The Court also found that she waived her retaliation claim by not briefing pretext.

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EEOC Sees #MeToo Uptick, Regulatory Agenda Released

By Robin Shea

The Equal Employment Opportunity Commission recently released preliminary figures on sexual harassment activity for Fiscal Year 2018, which ended September 30. The EEOC’s figures indicate an increase in sexual harassment charges and EEOC lawsuits, and a dramatic increase in the amount paid to settle sexual harassment charges. Then, last week, the Trump Administration issued its regulatory agenda for Fall 2018, which contains a number of labor and employment-related matters.

EEOC #MeToo uptick

The following are highlights of the EEOC’s recently released preliminary numbers on sexual harassment for Fiscal Year 2018:

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John Gresham Named 2018 Harkavy Award Winner

John Gresham is this year’s Jon Harkavy Award Winner. Last week, the Jonathan R. Harkavy Award Committee (John Doyle Jr., Michael Kornbluth, and Travis Payne) submitted this report to the Council of the Labor and Employment Section of the N.C. Bar Association:

John Gresham

The Committee developed a process to solicit nominations for the Jonathan R. Harkavy Award. An announcement went out in mid-March and a number of deserving and impressive lawyers were nominated. The nominations were circulated among the Committee members and, in early July, a conference call was convened for the members to candidly discuss the various nominees. Out of that discussion there resulted in a consensus that this year the Harkavy Award should go to John Gresham.

In at least some respects, the Harkavy Award is a recognition of a “lifetime” of achievement and service in the employment area of practice. Gresham, as most of his colleagues and friends call John, most certainly fits that criteria. John began his legal career in North Carolina in the mid-1970s, serving two years as a law clerk for United States District Court Judge James B. McMillan. He then joined the firm of Chambers Ferguson and Stein in Charlotte, where he ultimately became a partner. He stayed at that firm until 2011 when he joined the firm of Tin Fulton Walker & Owen.

Throughout his career, Gresham has focused on employment and civil rights/constitutional issues. He has litigated many cases and obtained decisions that have impacted the employment and constitutional law both nationally and within North Carolina. This includes Reed v. United Transportation Union, 488 U.S. 319 (1989), which expanded the time period in which union members could sue for violations of their rights. Perhaps of most significance for North Carolina is the decision that he obtained in Corum v. University of North Carolina, 330 N.C. 761 (1992), where our Supreme Court recognized a private right of action by citizens against government entities for violations of the rights enumerated in Article I of the Constitution of North Carolina, the Declaration of Rights.

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