Prepared by Ted Gentry
July 2014

Fourth Circuit Rules in Favor of Employer in Whistleblower Case

Whistleblower claims, which protect employees who report potentially illegal conduct by prohibiting retaliatory personnel actions by employers, are generally on the rise. The Fourth Circuit, which covers South Carolina, recently affirmed summary judgment in favor of the defendant employer in Feldman v. Law Enforcement Assocs. Corp. In this case, the Plaintiff brought whistleblower claims against LEA and other outside directors under the Sarbanes-Oxley Act (“SOX”), arguing that he was unlawfully fired in retaliation for reporting potentially illegal exports, objecting to falsified minutes, objecting to legal bills, and reporting suspected insider trading, all of which would be protected activity under SOX.

To state a whistleblower claim, an employee must demonstrate that the whistleblower activities were a contributing factor to the unfavorable personnel action. The Fourth Circuit determined that the Plaintiff’s claim was not a contributing factor, including that the significant protected activity occurred roughly 20 months before his termination. The Fourth Circuit emphasized the importance of proximity in time in connecting the protected activity and the unfavorable employment action.

Despite this outcome, employers should remember that the “contributing factor” standard for SOX cases is still broadly interpreted to include any factor that tends to affect the outcome of the adverse personnel action in any way. However, as evidenced by this case, an employer may successfully defend such a claim by pointing to evidence severing the connection between the adverse action and the protected activity: (1) the termination or adverse action did not closely follow the protected activity, (2) there were other documented concerns or tensions with the employee leading to the whistleblower’s termination, and (3) no adverse employment action was taken toward others involved in the protected activity.

If your organization is faced with a whistleblower claim, contact us. Our team is experienced in conducting internal investigations, handling employee discipline concerns, and defending complex litigation in federal court.

Spotlight on Pregnancy and the Workplace

Pregnancy and the workplace took center stage this month in employment law circles.

The EEOC Releases Guidance on Pregnancy Discrimination and Related Issues

On July 14, the Equal Employment Opportunity Commission released a detailed enforcement guidance on pregnancy discrimination and related issues (the “Enforcement Guidance”). The Enforcement Guidance focused on two key statutes: the Pregnancy Discrimination Act (the “PDA”) and the Americans with Disabilities Act (the “ADA”).

The PDA expanded the protections granted to employees under Title VII of the Civil Rights Act. More specifically, the PDA both (i) prohibits employers from discriminating against employees affected by pregnancy, childbirth, or related medical conditions, and (ii) requires employers to treat women affected by pregnancy, childbirth, or related medical conditions the same as other employees similar in their ability or inability to work.

The Enforcement Guidance explores both aspects of the PDA in depth.  Among other things, the Enforcement Guidance:

  • points out that pregnancy discrimination can take the form of disparate treatment (e.g., using pregnancy as a motivating factor to make an employment decision);
  • highlights the narrowness of the bona fide occupational qualification defense to disparate treatment;
  • stresses that pregnancy discrimination can also take the form of disparate impact (e.g., implementing a neutral policy which has a disproportionate impact on pregnant employees);
  • clarifies that the PDA also requires employers to maintain a workplace free of pregnancy based harassment; and
  • reminds employers that workers affected by pregnancy must be granted the same benefits (tasks, assignments, pay, leave, leave without pay, medical benefits, and retirement benefits) as workers not affected by pregnancy.

The Americans with Disabilities Act prevents employment discrimination based on an applicant or employee’s current disability, history of disability, or perceived disability or history of disability. The Enforcement Guidance makes it clear that although pregnancy in itself does not qualify as a disability, some pregnancy-related conditions may qualify as a disability. Moreover, the Enforcement Guidance reminds employers that when pregnancy-related conditions qualify as a disability, employers must make efforts to reasonably accommodate its employees. Reasonable accommodations include changing an employee’s non-essential work functions and/or schedule, allowing an employee to take paid or unpaid leave, and placing an employee on light duty.  However, as the Enforcement Guidance points out, an employer cannot mandate a pregnant employee take leave.

In addition to discussing the ADA and PDA, the Enforcement Guidance highlights some important best practices for employers. These best practices include:

  • establishing and enforcing PDA – and ADA-compliant policies;
  • training management on such policies;
  • investigating claims of pregnancy discrimination and/or harassment;
  • refraining from asking applicants about their pregnancy, plans to have children, or current family situation during interviews;
  • refraining from asking employees about their pregnancy, plans to have children, or current family situation during job performance reviews;
  • developing job duties and functions for use during interviews and performance reviews;
  • documenting employment decisions; and
  • consulting with applicants and employees on how to shape the terms and conditions of employment to accommodate pregnancy.

Do not hesitate to contact Wyche while establishing or reviewing your pregnancy-related employment policies.

The Supreme Court Grants Certiorari in Young v. UPS

On July 1, 2014, the U.S. Supreme Court agreed to hear the appeal in Young v. United Parcel Service, Inc., and consider whether and in what circumstances an employer must provide pregnant employees with work accommodations, such as light duty, that it provides to non-pregnant employees who are similarly limited in their ability to work, pursuant to the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k). Review Wyche at Work’s summary of the Fourth Circuit’s decision here, and stay tuned to Wyche at Work for developments in this case.

Requests for Medical History May Trigger GINA or ADA Charges

A recent informal discussion letter from the Equal Employment Opportunity Commission highlights the importance of reviewing employee forms for unnecessary medical requests, especially regarding family medical history. The Genetic Information Nondiscrimination Act (“GINA”) prohibits employers from requesting, requiring, purchasing or disclosing genetic information. GINA defines genetic information to include genetic tests of individuals or their family members, as well as family medical history regarding the manifestation of a disease or disorder. In its discussion letter, the EEOC cautioned against these requests for information on an employer’s Medical History Form:

  • “Have you, or any of your immediate family (father, mother, sister and/or brother) ever had any of the following” (with a list of medical conditions). The EEOC noted this question is a clear violation of GINA in that it requests family medical history as part of an employment-related exam.
  • “In the past five years, have you been hospitalized overnight for any reason?”  In the past twelve months, have you seen a doctor for anything other than routine checkups?” These questions triggered a potential claim under the Americans with Disabilities Act, which also limits when an employer may obtain medical information from applicants and employees. According to the EEOC, both questions are “quite general” and would likely result in employees “revealing far more information than is necessary to address specific job-related concerns.”

The discussion letter is informal guidance and is not an official opinion of the EEOC, but it does reflect the agency’s direction as GINA claims continue to evolve.  The agency also offers online background information on its final rule implementing GINA, as well as a Q&A for small businesses. In past editions of Wyche at Work, we have discussed the emergence of genetic discrimination claims and best practices for complying with GINA, and we will continue to keep you updated on new developments.

Wyche at Work Team Identified as “Super Lawyers”

Super Lawyers, a rating service of outstanding lawyers, has named Ted Gentry as a Super Lawyer in the employment law arena in its 2014 South Carolina Super Lawyers Magazine. South Carolina Super Lawyers Magazine features attorneys who embody excellence in the practice of law and named 17 Wyche lawyers.
If you have any questions about these or other workplace law topics, please contact Ted Gentry.

This update is provided by Wyche for educational and informational purposes only and is not intended and should not be construed as legal advice.