Idaho

Ninth Circuit Holds that Female Only Policy at Women’s Correctional Facility Violates Title VII

Scott E. Randolph
A. Dean Bennett

 

On July 8, 2010, the Ninth Circuit decided Breiner v. Nevada Department of Corrections.  The decision is notable because it reflects the Ninth Circuit’s current approach to gender based restrictions on employment opportunities.  The Breiner decision soundly rejects a correctional facility’s policy of hiring only female guards as correctional lieutenants.  In a unanimous opinion, the Court held that the female-only policy had more than a de minimis impact on the male prison guards’ promotional opportunities and could not be considered a bona fide occupational qualification (“BFOQ”).

 

In 2003, a state inspector general discovered a widespread pattern of sexual activity between prison guards and the female-only inmate population.  At the time, the facility was operated by a private contractor.  The inspector general also discovered a pattern of guards introducing contraband into the prison in exchange for sexual activity by the inmates. 

 

The contractor terminated its contract after the problems at the facility became widely publicized.  Thereafter, the facility’s director decided to staff the front line positions with 70% women and to hire only female correctional lieutenants.  The correctional lieutenants were often the supervising employees and reported directly to the facility’s wardens or deputy wardens.  Although several men applied for these positions, they were eventually filled only by women.

 

Four male prison guards filed charges with the Equal Employment Opportunity Commission (“EEOC”).  These individuals were not among those who had applied for the available positions.  After receiving a right to sue letter from the EEOC, the men filed suit in federal district court in Nevada.  The district court subsequently granted summary judgment in favor of the correctional facility, holding that the correctional lieutenant positions had a de minimis impact on the plaintiffs’ overall promotional opportunities.  The district court also concluded that the hiring restrictions fell within the exception allowed by Title VII for a BFOQ.

 

The Ninth Circuit reversed, holding that the facility’s female only policy violated Title VII.  The court rejected the facility’s argument that the impact on male prison guards was de minimis because “Title VII is offended when an individual suffers discrimination with respect to a particular adverse employment decision, even if others of the same protected group are not similarly disadvantaged.”  The court distinguished between restrictions on job responsibilities, which can be permissible in some situations, from the diminished opportunities for promotion that occurred here.  In summary, the court observed that the facility’s “refusal to hire men in the correctional lieutenant positions therefore violates Title VII unless [the correctional facility] can demonstrate that gender is a BFOQ for the positions.” 

 

The court then turned to the BFOQ issue.  Title VII provides a limited exception for discrimination on the basis of sex “only when the essence of the business operation would be undermined” by the hiring of both sexes.  The male only policy did not meet the exception because the facility had not demonstrated that males as a population would tolerate sexual abuse of inmates.  Those seeking to rely on a BFOQ must show “a high correlation between sex and ability to perform job functions.”  The facility failed to introduce sufficient evidence to demonstrate the correlation between hiring only female guards for the correctional lieutenant position.  As a result, the policy could not be considered a legitimate BFOQ.

 

Employers considering policies of this type should proceed with caution in light of the decision in Breiner.  Employers should consider consulting counsel about any policies that express a preference for any group protected by Title VII.  Failure to do so can result in exposure and unfavorable publicity, no matter how well-intentioned the employer or policy might be.

Employers Should Revisit Employee Handbooks in Light of Recent Decision Regarding Employee Use of Web-Based E-mail

Scott E. Randolph

A. Dean Bennett

Employers should revisit the language contained in their employee handbooks in light of the recent decision by the New Jersey Supreme Court in Stengart v. Loving Care Agency, Inc., 201 N.J. 300, 990 A.2d 650 (2010).  In Stengart, the New Jersey Supreme Court held that a nongovernmental employee had a reasonable expectation of privacy in web-based e-mail messages between the employee and her attorneys.  The court analyzed the language in the employer’s handbook and concluded that the employer failed to eliminate the reasonable expectation of privacy by the employee to password protected web based e-mail messages.  The court rejected the employer’s argument in part because the employer’s policy failed to define whether the “use of personal, password-protected, web-based e-mail accounts via company equipment” was covered by the policy provision allowing the employer the right to access “all matters on the company’s media systems and services at any time.”  As a result, the appellate court held that the employer’s counsel violated rules of professional conduct by reviewing the confidential messages. 

Notwithstanding its ruling that the employer’s counsel violated the rules of professional conduct by reviewing the employee’s e-mail messages, the court noted that its ruling “does not mean that employers cannot monitor or regulate the use of workplace computers.”  The court also observed that “[c]ompanies can adopt lawful policies relating to computer use to protect the assets, reputation, and productivity of a business and to ensure compliance with legitimate corporate policies.” 

In light of this decision, employers should review the language in their handbooks with counsel to ensure that the handbooks address this important and rapidly evolving issue.  Failure to do so can result in significant consequences, as addressed in the Stengart decision.

City Had Right To Review Employee's Text Messages

If your employees send or receive text messages, e-mails, or otherwise communicate with modern technology while at work, a decision from the U.S. Supreme Court (City of Ontario, California, et al. v. Quon et al.) could impact you. The U.S. Supreme Court unanimously decided that the City of Ontario, California did not violate an employee's Fourth Amendment privacy rights when it reviewed two months’ worth of his text messages, many of which involved non-work related matters (Click here to see the decision on the U.S. Supreme Court's website).

To read the full article authored by Mark Wiletsky of Holland & Hart's Boulder office, follow this link:  http://www.hollandhart.com/newsitem.cfm?ID=1692

In the Ninth Circuit, the District Court and Not the Jury Must Determine Front Pay Awards Under the Family and Medical Leave Act.

 

Scott E. Randolph

A. Dean Bennett

 

The Ninth Circuit recently held that front pay is an equitable remedy under the Family Medical Leave Act of 1993 (“FMLA”) and that the district court must determine both entitlement to front pay and the amount of any front pay award.  See Traxler v. Multnomah County, No. 08-35641, 2010 WL 669251 (9th Cir. Feb. 26, 2010).  The Ninth Circuit also addressed the standard for awarding back pay and liquidated damages under the FMLA. 

 

The plaintiff Traxler was a former employee of the Multnomah County Sheriff’s Department (“Department”).  Traxler previously had taken FMLA leave in 2002 and in 2005 to address a serious health condition.  In June 2005, the Department notified Traxler that it was eliminating  her position effective July 1, 2005.  The Department then placed her on administrative leave and transferred her to a lower paying position within the Department.  Traxler continued to take leave after being transferred to the lower paying position.  She subsequently received a negative performance review in September 2005.  Shortly thereafter, the Department terminated Traxler’s employment.

 

Traxler sued the Department for violations of the FMLA and other state law claims.  A federal jury awarded $250,000 in back pay and $1,551,000 in front pay.  The district court refused to award liquidated damages.  In connection with post-trial motions by the Department, the district court held that it erred as a matter of law by submitting the issue of front pay to the jury.  The district court then held that front pay in the amount of $267,000 was an appropriate award.  Traxler appealed the district court’s rulings that whether a plaintiff is entitled to front pay as  well as the calculation of the award are issues for the court to decide.  She also appealed the district court’s refusal to award liquidated damages.

 

Front Pay

 

In a published decision affirming the district court’s decision on the issue of front pay, the Ninth Circuit held that “front pay is an equitable remedy that must be determined by the court, both as to the availability of the remedy and the amount of any award.”  Slip Op. at 3158.  In reaching that decision, the court sided with the Fourth, Fifth and the Tenth Circuits, that previously had adopted the same rule in published decisions.  The Ninth Circuit expressly declined to follow the Sixth Circuit, which previously had ruled that while the issue of entitlement is for the court to decide, the amount of front pay is a jury issue. 

 

The Ninth Circuit based its decision on the plain language of the FMLA, which distinguishes between “damages” and “equitable relief.”  See Slip Op. at 3159 (discussing 29 U.S.C. § 2617(a)(1)(A)(i)(I) and (a)(1)(B)).  The court reasoned that because front pay is a form of equitable relief that is available when reinstatement is not feasible, the statutory authority to award front pay “is derived solely from the statutory provision permitting the court to award ‘such equitable relief as may be appropriate.’”  Id. at 3160 (citing 29 U.S.C. § 2617(a)(1)(B)).  In reaching this decision, the court expressly rejected Traxler’s argument that the Ninth Circuit’s decision in Cassino v. Reichhold Chemicals, Inc., 817 F.2d 1338, 1347 (9th Cir. 1987) was controlling.  The court explained that Cassino interpreted the ADEA not the FMLA, and the provision on which Traxler relied was dicta in any event.

 

The court then turned to the reasonableness of the district court’s front pay calculation.  Affirming the award amount, the court held that while reasonable minds might differ as to an appropriate amount, the district court did not abuse its discretion by awarding front pay equal to three to four times Traxler’s yearly salary.  The court considered the district court’s analysis well-reasoned and chose not to disturb it on appeal.

 

Liquidated Damages

 

Next, the court addressed  the issue of liquidated damages.  The district court had summarily refused to award liquidated damages.  The Ninth Circuit reversed and remanded for further proceedings, holding that the record was not adequately developed.  The court reasoned that once a violation has been determined, the FMLA mandates an award of liquidated damages “unless the employer proves both ‘good faith’ and ‘reasonable grounds for believing that [its action] was not a violation of the FMLA.’”  Slip Op. at 3168 (quoting 29 U.S.C. § 2617(a)(1)(A)(iii)).  Based on the record before it on appeal, the Ninth Circuit could not adequately evaluate whether the district court appropriately applied this standard when it refused Traxler’s requested award of liquidated damages.

 

Notably, the Ninth Circuit rejected Traxler’s argument that an award of front pay was incompatible as a matter of law with the failure to award liquidated damages.  The court explained that there may be circumstances where front pay is appropriate even though the employer acted in good faith and reasonably believed that its actions were not in violation of the FMLA.

 

Conclusions

 

The Ninth Circuit’s decision in Traxler is an important case of first impression.  For the first time, the Ninth Circuit has squarely addressed the front pay issue and concluded that the district court is charged with determining both entitlement to front pay and the amount of any award.  Traxler also reflects the importance of developing the district court record after the district court determines that liquidated damages are not appropriate.  Had the record been better developed by the parties, it is likely that the decision regarding liquidated damages would not have been disturbed on appeal.

Understanding the Federal WARN Act and its Impact on the Sale of a Business

Authored by:

Nicole C. Snyder

Scott E. Randolph

Recently the economic news has been bleak.  One of the most difficult aspects of this news has been the ongoing reports of layoffs, plant closures, and bankruptcies.  Closing a plant requires more than the last person out turning out the lights and locking the doors, and a round of layoffs requires more than collecting keys and name badges.  Often these events require notice to provide workers with transition periods.  Failure to provide notice could trigger significant monetary penalties.  This article describes the applicability of the federal Worker Adjustment and Retraining Notification Act of 1988 (the WARN Act) and discusses the WARN Act’s provisions in the context of the sale of a business.