Eleventh Circuit Announces New “Similarly Situated” Standard for Workplace Discrimination Claims

In employment discrimination cases, employees often seek to prove their claims by presenting indirect evidence of discrimination.  Employees will seek to present evidence that they were treated differently than similarly situated employees outside of their protected class.  On March 21, 2019, the Eleventh Circuit adopted a new test for analyzing these “comparators” by issuing its decision in Lewis v. City of Union City, Ga..  In doing so, the Court rejected its previous standards for analyzing comparators.  shutterstock_judge rulingBefore Lewis, courts in the Eleventh Circuit evaluated “similarly situated” comparators under either the “nearly identical” or “same or similar” standard, and sometimes even used both standards simultaneously.  The fact that two standards had emerged, and at times, were even used together, without any clear guidance on their proper use, caused the Court to call the entire situation “a mess.”  Accordingly, in an effort to clean up and clarify the proper standard for comparator evidence, a full panel of the Court took on Lewis so that it could address whether “similarly situated” should be interpreted as “same or similar,” “nearly identical,” or something else.  Ultimately, the Court decided to depart from its previous standards, and went with something else.  Now, in order to prove intentional discrimination by indirect evidence, a plaintiff must show that employees “similarly situated in all material aspects” received preferential treatment.  The Court also reiterated that this burden remains with the plaintiff as part of plaintiff’s prima facie case.  So, what was the case about, and what does it mean for employers?

After the announcement of a new policy requiring all police officers to carry Tasers and receive a five-second shock, Jacqueline Lewis, an African-American detective with the Union City Police Department in Union City, Georgia, was scheduled to receive such training.  She had also been scheduled to receive pepper spray training.  But, before receiving either of these, Ms. Lewis submitted a doctor’s note Continue reading

Grab Your Wallet Before the PBGC Does – Their Proposed Regulation Could Cost Employers Greatly

shutterstock_pensionIn December 2014, Congress passed and President Obama signed the Multiemployer Pension Reform Act of 2014 (“MPRA”). The objective of the MPRA was to shore up struggling multiemployer pension plans, many of which are severely underfunded and getting worse. Among other things, the MPRA provided employers an incentive to continue participation in “endangered” or “critical” status plans by mandating that any increases to the employer’s contribution rate after 2014 will not count against the employer for purposes of determining withdrawal liability.

Because the funded status of many of these plans is so low, this provision can mean significant savings for employers who withdraw from plans in critical or endangered status. The rehabilitation plans of typical critical status multiemployer plans have called for contribution rate increases anywhere from 4-8% or more annually so, in the five years since 2014, many employers have seen cumulative rate increases of from 20-25%, or more. But because Continue reading

5 Conn Maciel Carey Attorneys in Washington, DC Recognized as Super Lawyers

Conn Maciel Carey LLP is excited to share that five of its attorneys based in Washington, DC have been recognized by Super Lawyers in 2019 in the fields of Labor & Employment and Workplace Safety Law.  sl-badge-l-w-2019Super Lawyers is a research-driven and peer-influenced rating service featuring exceptional attorneys out of select legal practice areas.  The attorneys selected are acknowledged for acquiring extraordinary professional achievement and peer recognition in their discrete areas of practice.

Eric J. Conn (Super Lawyer) is a founding partner of Conn Maciel Carey and Chair of the firm’s national OSHA • Workplace Safety Practice Group. His practice focuses exclusively on issues involving occupational safety and health law.  Before launching his own OSHA Practice, Mr. Conn practiced for more than a decade alongside the former first General Counsel of the OSH Review Commission.  Mr. Conn and his OSHA Team at Conn Maciel Carey develop safety and health regulatory strategies for employers across all industries.

Prior to founding Conn Maciel Carey, Mr. Conn was Head of an OSHA practice group that was honored as the “Occupational Health & Safety Law Firm of the Year” by Corporate INTL Magazine in its 2014 Global Awards. In 2013 and 2014, he was named a “Rising Star” by Washington, DC Super Lawyers, and as a Super Lawyer every year since.  He has also been selected for inclusion in the Washington Post’s Top-Rated Lawyers list in Washington, DC.

Kara M. Maciel (Super Lawyer) is a founding partner of Conn Maciel Carey and Chair of the firm’s national Labor • Employment Practice Group. She focuses her practice on representing employers in all aspects of the employment relationship. Continue reading

Supreme Court Poised to Decide Whether Title VII Protects LGBT Employees

On Monday, April 22, 2019, the United States Supreme Court granted petitions for certiorari for three cases that center on the question of whether Title VII of the Civil Rights Act of 1964 (“Title VII”) protects LGBT rights.  Two of the cases, Altitude Express v. Zarda and Bostock v. Clayton County, Georgiaconcern whether, under Title VII, sex discrimination includes discrimination on the basis of an emploshutterstock_EEOCyee’s sexual orientation.  The third case, R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, poses the question of whether the Title VII prohibition against sex discrimination prohibits gender identity discrimination.  Due to the similarity of the issues, the Supreme Court has consolidated the Altitude Express and Bostock matters for briefing and oral argument.  The Supreme Court’s ultimate decision in each of these three matters is significant because it will settle current Circuit splits, as well as disagreement among Agencies in the Federal government, on the scope of Title VII.

As discussed in a prior blog post, in Altitude Express, the Second Circuit joined the Seventh Circuit in finding that Title VII does protect employees from being discriminated against based on sexual orientation.  Specifically, the Second Circuit held that the text of Title VII necessarily includes sexual orientation as “…the most natural reading of [Title VII]’s prohibition on discrimination ‘because of…sex’ is that it extends to sexual orientation discrimination because sex is necessarily a factor in sexual orientation.”  The Seventh Circuit in Hively v. Tech Community College, similarly determined that a reading of Title VII in the current cultural and legal context includes sexual orientation in the scope of Title VII. Continue reading

Conn Maciel Carey Opens Columbus, Ohio Office

Conn Maciel Carey LLP announced today the opening of its Columbus, Ohio office. It is the firm’s sixth office nationally and the second location in the Midwest. The new office represents another important step in the firm’s continued growth in the region, together with the opening of its Chicago office last year.

Columbus is a growing Midwest hub and is centrally located to many of the nation’s current and historic industrial centers. With an expanded Midwest presence, Conn Maciel Carey attorneys now provide enhanced services to its national clients operating in the Midwest.

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We are excited about our expanding Midwest presence” said Managing Partner Bryan Carey. “The Columbus office will allow the firm to build upon the success of our 2018 launch of our Chicago office, offering clients operating in the central U.S. greater proximity to our attorneys, resources, and counsel.

Nicholas W. Scala, a partner with the firm, will lead the Columbus office. Mr. Scala joined the Firm in 2016, founding the firm’s MSHA Practice Group, which he chairs. His practice services the mining industry, managing all interaction with, and contest of enforcement by, the Mine Safety and Health Administration (MSHA) for companies operating in the coal, aggregates, industrial minerals, and cement industries. He also CMC Headshot (2017)supports the firm’s national OSHA Practice Group, representing general industry and construction companies in connection with inspections and enforcement actions by the Occupational Safety and Health Administration (OSHA). Mr. Scala works with state mining associations in Ohio and Illinois and represents clients throughout the Midwest and Ohio River Valley regions. He was named a Super Lawyer Rising Star in Washington, D.C. in 2017, 2018, and 2019.

The Columbus market offers a fantastic opportunity for not only our MSHA Practice, but for OSHA and Labor and Employment, as well,” said Scala. “Working with attorneys spanning the firm’s existing offices and groups, we will build upon the firm’s experience and proven client service, bringing additional value to the Midwest. Specific to our firm’s Workplace Safety Practice Group, Columbus is centrally located to several of the most active mining regions in the country, as well as a historically active area for regulatory enforcement over the construction and general industry sectors. It’s a growing and dynamic market that I am eager to grow the firm in.

The Columbus office will expand Conn Maciel Carey’s national Labor and Employment and OSHA practice groups. The Labor and Employment Practice Group, led by founding partner Kara M. Maciel, provides employment defense in both state and federal courts, labor-management relations, as well as day-to-day counseling on a vast array of employment matters. The OSHA Practice Group, led by founding partner Eric J. Conn, represents a wide-range of clients across the country in all aspects of their interaction with OSHA and state OSH programs.

In addition to its Midwest offices, the boutique law firm, which was founded in 2014, has offices in Washington D.C.; Chicago, Illinois; Atlanta, Georgia; Los Angeles, California; and San Francisco, California.

Here is a link to a press release issued by the Firm about these exciting developments.

[Webinar] Guide to Responding to 11(c) Safety Retaliation Complaints and Notices of Alleged Hazards / Employee Safety Complaints

On Tuesday, April 16, 2019, at 1 pm EST, join Kate M. McMahon of Conn Maciel Carey’s national OSHA • Workplace Safety Group and Lindsay A. DiSalvo of Conn Maciel Carey’s national Labor & Employment Practice Group for a complimentary webinar: Guide to Responding to 11(c) Safety Retaliation Complaints and Notices of Alleged Hazards / Employee Safety Complaints.

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When OSHA receives a complaint related to employee safety and health or a severe injury report, OSHA often gives the employer an opportunity to respond before it takes the more extreme action of opening an inspection.  In addition, when OSHA receives an allegation of retaliation, it must provide the employer a chance to explain why the action of which it is accused was legitimate or did not occur as alleged.  These responses are an opportunity for the employer to provide sufficient information to avoid a full-blown OSHA inspection or becoming enmeshed in the litigation of a retaliation claim.  A strong and thorough response could resolve OSHA’s concerns and resolve the retaliation complaint in a favorable manner for the employer.  However, these responses could also create a written record of admissions to which OSHA can hold the employer accountable, and any supporting documentation may be closely scrutinized and potentially used to create liability.  Thus, employers must be strategic about the information they share at this early stage and should ensure there is a procedure in place for managing and developing these responses.

​Participants will learn about the following:​

  • The types of complaints and incidents that lead OSHA to request information from the employer;

  • Specific prohibitions of Section 11(c) (OSHA’s anti-retaliation law) and how retaliation complaints are evaluated;

  • Strategies employers can use to effectively respond to Section 11(c) complaints, Notices of Alleged Hazards, and RRI requests; and

  • Proactive measures employers can take to avoid employee complaints.

This program is valid for 1.00 PDC for the SHRM-CP or SHRM-SCP. 

Click here to register for this webinar.

Good Faith Goes a Long Way: The Benefits of Fully Engaging in the Interactive Process Mandated by the Americans with Disabilities Act

On Monday, March 25, 2019, I had the privilege to co-present on reasonable accommodations and the interactive process under the Americans with Disabilities Act (the “ADA”) at the HR in Hospitality Conference in Las Vegas, Nevada. One of the issues Picture1covered during our presentation involved the fact that the ADA does not require that employers provide the specific accommodation requested by an employee as long as the employer offers a reasonable accommodation to the employee who made the request.  While employers can use their business judgment when deciding how best to reasonably accommodate an employee, a settlement recently announced by the EEOC underscores that many employers would be well-advised to develop internal procedures or guidelines to help ensure that those involved in the accommodation process understand what is expected of them and the company when responding to accommodation requests.   According to a lawsuit filed by EEOC in Minnesota, a Bath and Body Works store failed to reasonably accommodation a sales associate with type-1 diabetes suffering retinopathy who asked that a larger monitor screen be placed at the cash register.  Instead, a store manager purchased what the EEOC described as “a cheap, hand-held magnifying glass” to be used by the sales associate when working the register.

Under a consent decree settling the suit (EEOC v. Bath and Body Works), Bath and Body Works agreed to pay Continue reading