Firm Obtains Complete Dismissal of Two Federal Lawsuits Against The County Of Suffolk

The firm served as counsel to the County of Suffolk in two federal lawsuits against the Suffolk County Traffic and Parking Violations Agency ("SCTPVA"). The lawsuits, which sought class action certification, claimed a wide variety of unconstitutional conduct by the SCTPVA.  These allegedly unconstitutional acts included, among other things, discrimination against minority motorists, denying due process when suspending drivers licenses, the imposition of excessive fines, and illegally issuing arrest warrants for motorists who failed to appear at their court dates.  However, these allegations were completely unfounded.

In both lawsuits, the firm argued that there was no evidence of any discriminatory or otherwise unconstitutional conduct by the SCTPVA or its officials. Moreover, the plaintiffs could not point to any official policy or customary practice of the County that led to these so-called violations. The firm also argued that the named defendants were immune from suit because at all relevant times they were acting in their official capacities as SCTPVA prosecutors or judicial hearing officers.

As a result, U.S. Magistrate Judge Arlene Lindsay issued two Report and Recommendations ("R&Rs") advising that the motions to dismiss be granted in their entirety.  Shortly thereafter, U.S. District Court Judge Joan Azrackby orders dated March 3, 2017 and June 12, 2017, adopted the R&Rs as the decisions of the Court, and granted the motions to dismiss all claims against the SCTPVA and its officials in both cases.

PDF copies of the the full Magistrate's Report and Recommendation for the two cases, 15-cv-3097 and 15-cv-3411, can be found here and here, respectively.

 


Federal Court In Illinois Holds First Amendment Not Implicated By Chicago’s Short-Term Rental Ordinance

Last month, the federal District Court for the Northern District of Illinois denied a request for a preliminary injunction against the City of Chicago’s new short-term rental ordinance.  The Court determined that the ordinance, which regulates how individuals list units for rent on Internet-based, “home sharing” services such as Airbnb, VRBO, or HomeAway, did not affect the plaintiffs’ First Amendment rights to free speech.  As municipalities across the country continue to grapple with how to regulate such companies and the disruptive effect they have on the short-term rental and housing markets, this decision marks an interesting step forward in developing the legal basis for allowing such regulations.

The case centers on the so-called “shared housing ordinance” (the “SHO”) enacted by the City of Chicago (“City”) on June 22, 2016 and amended February 22, 2017.  The SHO requires hosts making housing units available for short-term rent to register the units with the City before listing the units on online services, and also requires services such as Airbnb, VRBO, HomeAway to register with the City.  As applied to individuals, the SHO imposes requirements on the services provided, such as requiring that hosts provide soap and clean linens and notify police of any illegal activity. It also requires individuals to maintain guest registries, and post their licensing information at the unit.

The plaintiffs, including a pro-short-term rental advocacy group and individuals that rent units using Airbnb, VRBO, HomeAway, and/or other platforms, challenged the SHO as an unconstitutional prior restraint on speech, and alleged that the regulations constituted compelled speech and was a content-based restriction on speech in violation of the First Amendment.  The plaintiffs moved for a preliminary injunction blocking the law from taking effect, and the challenged provisions were stayed pending a decision on the motion.

The Court ultimately denied the application for a preliminary injunction and rejected the plaintiffs’ First Amendment claims, noting the difference between First Amendment-protected speech and commercial activity.  Relying upon the Supreme Court’s decision in Sorrell v. IMS Health, the Court noted that:

restrictions on protected expression are distinct from restrictions on economic activity or, more generally, on nonexpressive conduct.  The First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech.

Here, the Court found plaintiffs had not established that their activities non-commercial activity or that the short-term rental business had an expressive component.  Rejecting the plaintiffs’ argument that their activities constituted speech, or a mix of commercial activity and speech, because online platforms created opportunities to “meet new friends, learn about different cultures, and show off” their home city, the Court found that a short-term rental arrangement is a commercial transaction, writing that the fact “some hosts or licensees also derive a social benefit from home sharing makes no difference to the dispositive question of whether the SHO regulates economic activity.”  It went on to state that if such a transaction was First Amendment-protected speech, than any other commercial transaction that involves interpersonal interaction would have to similarly be protected.

It should be noted that as this was a motion for a preliminary injunction, the Court’s finding was merely that the plaintiffs were unlikely to succeed on the merits, and not a final determination on their claims. Even so, it suggests that the First Amendment argument is unlikely to find much success as the case proceeds, and that the City’s ordinance will likely be upheld as constitutional, at least insofar as First Amendment concerns are implicated.

The case was Keep Chicago Livable v. City of Chicago, No. 16 C 10371, 2017 WL 955421 (N.D. Ill. Mar. 13, 2017).


EEOC Issues New Guidance On Retaliation Claims, Part 9: Promising Practices and Conclusion

On August 25, 2016, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued the Enforcement Guidance on Retaliation and Related Issues (“Guidance”).  This Guidance updates EEOC’s 1998 positions on retaliation claims relating to alleged equal employment opportunity violations, and was effective upon issuance.  This is the ninth and final post in our series, and it examines the EEOC’s five categories of “promising practices” for helping businesses comply with anti-retaliation laws.

 The first recommendation is that “Employers should maintain a written, plain-language anti-retaliation policy, and provide practical guidance on the employer's expectations with user-friendly examples of what to do and not to do.”  This includes examples of what constitutes protected acts and actionable conduct, and guidelines on how to avoid actual or perceived violations.  It also encourages creating reporting and informal resolution mechanisms for retaliation claims, while reviewing existing policies to remove any potentially illegal policies.  In particular, the Guidance notes that policies that deter employees from making pay inquiries may violate state or federal law.

The second recommendation is to create training programs for all employees, including managers and supervisors.  Such training should include a discussion of the written anti-retaliation policy, as well as the standards of conduct that are expected.  Managers and supervisors in particular should be advised on managing their emotions in decision-making and ways to be proactive in handling discrimination allegations.  The Guidance also advises periodic refresher courses.

The third recommendation suggests that an employer's response to claims of an EEO violation should automatically include giving information to all parties and witnesses on the anti-retaliation policy, how to report alleged retaliation, and how to avoid engaging in it. Managers and supervisors alleged to have engaged in discrimination should be provided with guidance on how to handle any personal feelings about the allegations when carrying out management duties or interacting in the workplace, so as to avoid potential retaliatory actions. On a related note, the fourth recommendation suggests employers follow up on pending EEO matters.

Finally, the Guidance suggests that employers “consider ensuring that a human resources or EEO specialist, a designated management official, in-house counsel, or other resource individual reviews proposed employment actions of consequence to ensure they are based on legitimate non-discriminatory, non-retaliatory reasons.”  These reviewers should require decision makers to identify their reasons for taking an action and document them appropriately, scrutinize performance evaluations to ensure they do not reflect bias, and when retaliation is found, advise of remedial measures to prevent future occurrences.  

By following these recommended practices, employers can significantly reduce the likelihood that an employee will experience, or bring a claim alleging, retaliation following a discrimination allegation.  

The full Guidance can be found here: https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm


EEOC Issues New Guidance On Retaliation Claims, Part 8: Remedies

On August 25, 2016, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued the Enforcement Guidance on Retaliation and Related Issues (“Guidance”).  This Guidance updates EEOC’s 1998 positions on retaliation claims relating to alleged equal employment opportunity violations, and was effective upon issuance.  This is the eighth post in our series and it examines remedies for a successful retaliation claim.  Generally, remedies for a retaliation claim fall into two categories: injunctive relief and damages. 

Temporary or preliminary injunctions allow a court to stop retaliation before it occurs or continues where there is a substantial likelihood that the challenged action will be found to constitute unlawful retaliation and the employee and/or the public interest will likely suffer irreparable harm.  Although courts have ruled financial hardships are not irreparable, other harms that accompany job loss may be sufficient.  For example, employees who were forced into retirement showed irreparable harm where they lost work and future prospects for work, suffering emotional distress, depression, a contracted social life, etc.  A temporary injunction is also appropriate if the retaliation will likely cause irreparable harm to the EEOC’s ability to investigate the original charge of discrimination, such as by discouraging others from providing testimony or from filing additional charges based on the same or other alleged unlawful acts. The EEOC has the authority to seek temporary injunctive relief when a preliminary investigation shows that prompt judicial action is necessary to carry out the purposes of Title VII, and the ADA and GINA incorporate this provision.  In contrast, the ADEA and the EPA do not authorize interim relief pending resolution of an EEOC charge, however the EEOC can seek such relief as part of a lawsuit for permanent relief pursuant to Rule 65 of the Federal Rules of Civil Procedure.  

The other main form of relief in a retaliation claim is damages, which can be either compensatory or punitive (though punitive damages are not available against government entities).  However, the extent to which damages are allowed varies depending on the statute being invoked:

- Title VII and GINA allow for both compensatory and punitive damages, with a combined cap that scales based upon employer size.  This cap ranges from $50k for employers with 15-100 employees to $300k for employers with more than 500 employees.  Punitive damages require showing the employer acted "with malice or with reckless indifference to the federally protected rights of an aggrieved individual."

-ADEA and EPA retaliation claims also allow for both compensatory and punitive damages, even though such relief is not available for non-retaliation claims under those statutes.  These statutes do not impose a statutory cap on damages.

-The ADA, while including both anti-retaliation and interference provisions, does not include a remedy and instead references 42 U.S.C. § 12117, which in turn references Title VII.  Moreover, courts have split on the scope and type of damages available.  Accordingly, this will vary by jurisdiction.

Other forms of relief include back pay if the retaliation resulted in termination, constructive discharge, or non-selection, as well as front pay or reinstatement. Equitable relief also frequently sought by the Commission includes changes in employer policies and procedures, managerial training, reporting to the Commission, and other measures designed to prevent violations and promote future compliance with the law.  These are mirrored in the Guidance’s “promising practices,” which will be the topic of our next and final post on the Guidance.

The full Guidance can be found here: https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm


EEOC Issues New Guidance On Retaliation Claims, Part 7: ADA Interference Claims

On August 25, 2016, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued the Enforcement Guidance on Retaliation and Related Issues (“Guidance”).  This Guidance updates EEOC’s 1998 positions on retaliation claims relating to alleged equal employment opportunity violations, and was effective upon issuance.  This is the seventh post in our series, and it examines Americans with Disabilities Act (“ADA”) interference claims, a relatively distinct subsection of the Guidance.

The ADA interference provision is distinct from the ADA’s anti-retaliation provision, creating a broader prohibition on “interference” with the exercise or enjoyment of ADA rights.  The relevant provision, 42 U.S.C. § 12203(b), protects any individual who is subject to coercion, threats, intimidation, or interference with respect to ADA rights.  Moreover, an applicant or employee need not establish that he is an "individual with a disability" or "qualified" in order to prove interference under the ADA.

Due to the substantial overlap between the interference and anti-retaliation provisions, many of the actions that constitute interference, such as denial of accommodation, discrimination, or retaliation, are actionable under the ADA’s anti-retaliation provision.  However, the broader interference provision covers actions that would not be considered “materially adverse,” such as coercing an individual to forgo an accommodation to which he or she is entitled, threatening adverse treatment unless an employee “voluntarily” submits to an otherwise prohibited medical examination, policies that purport to limit employees ADA rights (ex: a fixed leave policy that states "no exceptions will be made for any reason"), or subjecting an employee to adverse treatment for assisting a coworker in requesting reasonable accommodation. 

Ultimately, the fact an employee found a statement or certain conduct intimidating is insufficient for an ADA interference claim.  The standard articulated in the Guidance, is that the interference provision “only prohibits conduct that is reasonably likely to interfere with the exercise or enjoyment of ADA rights.”  Additional examples of interference, with detailed hypotheticals, can be found in the Guidance itself, provided online at:  https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm


EEOC Issues New Guidance On Retaliation Claims, Part 6: Overcoming Retaliation Claims

On August 25, 2016, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued the Enforcement Guidance on Retaliation and Related Issues (“Guidance”).  This Guidance updates EEOC’s 1998 positions on retaliation claims relating to alleged equal employment opportunity violations, and was effective upon issuance.  Though not binding, Courts have treated EEOC’s views as being persuasive authority, suggesting these rules will significantly impact how retaliation claims unfold. This is the sixth post in our series, and it examines how employers can overcome claims of retaliation by employees.

The Guidance provides three circumstances under which an employer can defeat a retaliation claim brought by an employee, even where a protected activity and materially adverse action occurred.  The first and most basic defense is that the employer was unaware of the protected activity.  As causation for retaliation requires showing that the materially adverse action was taken in response to the protected activity, the employer (or relevant decision maker) must have known of the prior protected activity.  Absent such knowledge, there can be no retaliatory intent.

The second basis for defeating a retaliation claim is to show that there were legitimate, non-retaliatory reasons for the challenged action.  The Guidance provides several examples of what such reasons may be.  These include, but are not limited to: (1) poor performance by the employee, (2) in cases of alleged hiring or promotion discrimination, inadequate qualifications for the position sought, (3) inferior qualifications or interview performance relative to the selected individual, (4) misconduct, ranging from theft to insubordination to repeated tardiness, and (5) reduction in workforce or downsizing.  These facts are not defenses or attempts to disprove retaliation, as proving retaliation remains the employee’s burden.  Rather, these facts can serve to support the employer’s proffered explanation for its actions.

Finally, in cases being decided under a “but-for” standard of causation, the employer may defeat the retaliation claim if it can show that the adverse action would have occurred regardless of any retaliatory motive.  The provided example describes a circumstance where the employer admits to being “mad” at the terminated employee, but the employee also admits that she was fired for repeated violations of worker safety rules and had been warned prior to filing her claim that continued violations could result in termination.  Thus, even where there may be evidence of retaliatory motive, but-for causation had not been demonstrated.

The full Guidance can be found here: https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm


EEOC Issues New Guidance On Retaliation Claims, Part 5: Determining Causation

On August 25, 2016, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued the Enforcement Guidance on Retaliation and Related Issues (“Guidance”).  This Guidance updates EEOC’s 1998 positions on retaliation claims relating to alleged equal employment opportunity violations, and was effective upon issuance.  Though not binding, Courts have treated EEOC’s views as being persuasive authority, suggesting these rules will significantly impact how retaliation claims unfold. This is the fifth post in our series, and it examines how courts determine causation in retaliation claims.

A materially adverse action does not violate the EEO laws unless there is a causal connection between the action and a protected activity.  In determining whether such a causal link existed, the courts use two different standards depending on the type of case.  In private section and state/local government retaliation cases, the courts use the “but for” standard, i.e. "but for" a retaliatory motive, the employer would not have taken the adverse action.  This does not mean that retaliatory motive was the sole motive, only that without it, the action would not have been taken. In contrast, federal Title VII and ADEA retaliation cases use a “motivating factor” test, which reflects that federal agencies are not prohibited from specific discriminatory acts but required to make employment decisions "free from any discrimination.”

Once a retaliation claim has been brought, the employee bears the burden of presenting evidence that it is more likely than not that retaliation has occurred. This can be demonstrated by singular pieces of evidence, or based upon a “mosaic” of different actions.  Such evidence can include written and oral statements by or from the employer/employee, suspicious timing of with respect to the protected act and adverse action being taken (short time more likely to show causality), comparative evidence (disparate treatment, selective enforcement, etc.), or inconsistent or changing explanations for certain acts.  This evidence will often be rebutted by the employer, who will proffer a non-discriminatory or non-retaliatory explanation.  Based on the other evidence provided, the Court will either accept the given reasons, or find that such reasons are a pretext meant to obscure illegal acts.

Our next post will look at ways employers can overcome retaliation claims.  The full Guidance can be found here: https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm


EEOC Issues New Guidance On Retaliation Claims, Part 4: Materially Adverse Actions

On August 25, 2016, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued the Enforcement Guidance on Retaliation and Related Issues (“Guidance”).  This Guidance updates EEOC’s 1998 positions on retaliation claims relating to alleged equal employment opportunity violations, and was effective upon issuance.  Though not binding, Courts have treated EEOC’s views as being persuasive authority, suggesting these rules will significantly impact how retaliation claims unfold. This is the fourth post in our series examining the new Guidance, and it looks at what it means for an employer to take materially adverse action against an employee.

Broadly speaking, anti-retaliation provisions prohibit materially adverse actions against individuals who undertake protected activities, i.e. participation and opposition as discussed in the previous two posts.  This covers any employer action that "might well deter a reasonable employee from complaining about discrimination," and need not be an insular act but part of a larger series of actions when taken as a whole. Although "normally petty slights, minor annoyances, and simple lack of good manners will not create such deterrence," the standard can be satisfied even if the individual was not in fact deterred.

The Guidance provides numerous examples of materially adverse actions, divided into two broad categories: work related and non-work related.  Work related adverse actions include straightforward examples such as denial of promotion, refusal to hire, denial of job benefits, demotion, suspension, and discharge, as well as less direct actions such as work-related threats, warnings, reprimands, transfers, negative or lowered evaluations, and transfers to less prestigious or desirable work or work locations.  Courts have held this includes formal reprimands, which “can reduce an employee's likelihood of receiving future bonuses, raises, and promotions, and it may lead the employee to believe (correctly or not) that his job is in jeopardy.”  In contrast, a non-worked related action can have “no tangible effect on employment… as long as it might well dissuade a reasonable person from engaging in protected activity.”  Though the Guidance doesn’t provide explicit examples of non-work adverse actions, the “additional examples” section includes acts such as “disparaging the person to others or in the media… making false reports to government authorities… [or] taking (or threatening to take) a materially adverse action against a close family member.” As with the other analyses discussed thus far, this is largely a fact-specific determination.

The full Guidance can be found here: https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm


EEOC Issues New Guidance On Retaliation Claims, Part 3: Protected Activities- Opposition

On August 25, 2016, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued the Enforcement Guidance on Retaliation and Related Issues (“Guidance”).  This Guidance updates EEOC’s 1998 positions on retaliation claims relating to alleged equal employment opportunity violations, and was effective upon issuance.  Though not binding, Courts have treated EEOC’s views as being persuasive authority, suggesting these rules will significantly impact how retaliation claims unfold. This is the third post in our series examining the new Guidance, and looks at the second type of protected activity, opposition.  

Opposition is a particularly important class of activities, given its an expansive definition and the great deference courts give to EEOC’s interpretation of opposing conduct.  Opposition “applies if an individual explicitly or implicitly communicates his or her belief that the matter complained of is, or could become, harassment or other discrimination.”  This can be achieved in a wide variety of ways, including but not limited to: informing an employer of what the employee believes to be discriminatory action, refusing employer instructions to engage in discriminatory acts, filing a discrimination claim, answering questions regarding another employee’s discrimination claim, requesting a reasonable religious accommodation, etc.  Ultimately, whether an action constitutes opposition will depend on whether the “circumstances show that the individual is conveying opposition or resistance to a perceived potential EEO violation,” an approach that relies on neither formal communications nor the use of key words (ex: harassment, discrimination) or phrases.  Finally, opposing conduct is a protected activity regardless of the party asserting it, including not only employees but managers, human resources personnel, or others.

Despite the broad definition of opposing conduct, there are still limitations on what actions are deemed acceptable in light of the employer’s need for “a stable and productive work environment.”  Generally, the manner of opposing conduct must be reasonable.  Forms of opposition deemed reasonable include candidly disclosing a forthcoming complaint to an employer, making complaints to such as union representatives or a lawyer, and complaining of conduct that, while not yet rising to the level of “severe or pervasive,” could rise to that level in the future.  In contrast, it is considered unreasonable for an employee to make “an overwhelming number of patently specious complaints,” harass or coerce a subordinate employee to give a witness statement in support of an EEOC charge, or attempt to change the contents of such a witness statement. Similarly, unlawful acts such as committing or threatening violence or destruction of property would likely be considered “unreasonable.”  In most cases, however, the determination of reasonableness will be fact-specific.

Critically, protected opposition “does not serve as license for the employee to neglect job duties. If an employee's protests render the employee ineffective in the job, the retaliation provisions do not immunize the employee from appropriate discipline or discharge.”  However, opposition can still be protected even if the conduct opposed is ultimately deemed lawful, so long as the employee had a reasonable good-faith belief that the conduct violated EEO laws, or could do so if repeated.  This reflects a policy, supported by the courts, that "the victim is commanded to 'report the misconduct, not investigate, gather evidence, and then approach company officials.'"

The full Guidance can be found here: https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm


EEOC Issues New Guidance On Retaliation Claims, Part 2: Protected Activities- Participation

On August 25, 2016, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued the Enforcement Guidance on Retaliation and Related Issues (“Guidance”).  This Guidance updates EEOC’s 1998 positions on retaliation claims relating to alleged equal employment opportunity violations, and was effective upon issuance.  Though not binding, Courts have treated EEOC’s views as being persuasive authority, suggesting these rules will significantly impact how retaliation claims unfold. This is the second post in our series examining the new Guidance, and looks at the first type of protected activity, participation.

The anti-retaliation provisions relating to participation state that it is “unlawful to discriminate because an individual has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under the relevant non-discrimination statutes, including Title VII, ADEA, ADA, etc.  This extends to both administrative hearings and lawsuits, even in cases where the underlying allegation lacks merit or was not timely filed.  One of the notable changes in the Guidance is the further expansion of this protection to include internal EEO complaints and investigations, including the act of contacting a federal agency’s internal EEO Counselor under 29 C.F.R. § 1614.105.

The Guidance also rejects limiting the protections on participation based upon intent, noting that the Supreme Court has held “broad participation protection is necessary to achieve the primary statutory purpose of anti-retaliation provisions, which is ‘maintaining unfettered access to statutory remedial mechanisms.’” Based upon this reasoning, the EEOC rejects imposing a good faith requirement, and takes the position that “an employer can be liable for retaliation if it takes it upon itself to impose consequences for actions taken in the course of participation.”  This includes retaliation where an employee gives false testimony or brings a claim in bad faith.  However, while prohibiting retaliation by the employer for such conduct, the Guidance concedes that “[f]alse or bad faith statements by either the employee or the employer should be taken into appropriate account by the factfinder, investigator, or adjudicator of the EEO allegation when weighing credibility, ruling on procedural matters, deciding on the scope of the factfinding process, and deciding if the claim has merit.”

In sum, participation protects an employee who brings or takes part in any type of anti-discrimination investigation or proceeding.  Once such activities commence, the employer cannot take retaliatory action against the employee without exposing itself to further liability, and must act through the court or body overseeing the proceeding to punish any misconduct related to the employee’s participation.

The full Guidance can be found here: https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm



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