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Eleventh Circuit: Discrimination Defined When Compared to Similar Employees

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March 21, 2019

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When making a discrimination claim under federal law, an employee must show she was treated differently than a “similarly situated” individual. In Lewis v. Union City, the Eleventh Circuit en banc defined what it means to be similarly situated. Specifically, only employees who are “similarly situated in all material respects” may be compared for purposes of finding discrimination. Although the analysis of similarity of “all material respects” will be determined on a case-by-case basis, the court gave “guideposts” of what to consider. For example, such individuals will have (1) engaged in the same basic conduct, (2) been subject to the same employment policy or rule, (3) ordinarily have the same supervisor, and (4) a shared employment or disciplinary history.

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Eleventh Circuit: HR Employee Assisting Another Employee to File a Claim is Protected Activity Under Title VII

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September 24, 2018

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In Gogel v. Kia Motors Mfg. of Georgia, Inc. the U.S. Court of Appeal for the Eleventh Circuit recently stated that a human resources employee’s actions in assisting another employee to file discrimination charges “in a reasonable manner” were protected activity under Title VII of the Civil Rights Act of 1964.

Andrea Gogel, an employee in Kia Motors Manufacturing of Georgia, Inc.’s HR department, claimed to have personally experienced and heard a myriad of complaints from employees who felt discriminated against based on their gender and national origin. Gogel attempted to use her employer’s internal reporting process for years without success. It was at this stage that she provided a co-worker with assistance in contacting an attorney to assist her with filing an EEOC charge. This action would later lead to her termination from Kia Motors. Gogel sued Kia Motors for gender and national origin discrimination and retaliation under Title VII. Although a district court granted summary judgment in favor of Kia Motors, Gogel appealed to the Eleventh Circuit.

The Eleventh Circuit stated that when a human resource employee helps another employee file a discrimination charge in a reasonable manner, the human resource employee is entitled to protection under Title VII. To determine reasonableness, the court uses a case-by-case balancing test that reviews the manner in which the employee opposes the policy. There, the court stated that Gogel’s attempt to use the internal reporting process prior to assisting her co-worker with filing a discrimination charge with the EEOC was a reasonable display of opposition to an allegedly discriminatory practice. Employers are well advised to be mindful of any employee expressing their hostility to a purportedly discriminatory employment practice, as they may be protected from retaliation under Title VII.

Action Items

  1. Provide your management team with harassment, discrimination, and retaliation prevention training.
  2. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2018 ManagEase

Eleventh Circuit: OSHA Must Have Probable Cause to Obtain an Inspection Warrant

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October 9, 2018

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In United States v. Mar-Jac Poultry, Inc., the Eleventh Circuit reviewed an inspection warrant sought by OSHA after a poultry facility declined a full-site inspection. OSHA was present at the facility following an employee injury, and was permitted to inspect the area related to the accident. When the employer declined to allow OSHA to expand its search to the full facility, it sought to obtain an inspection warrant.

To obtain an inspection warrant, OSHA must demonstrate probable cause, which “may consist of either (1) a showing of specific evidence of an existing violation, or (2) a showing that ‘reasonable legislative or administrative standards for conducting an … inspection are satisfied with respect to a particular [establishment].’” OSHA’s required probable cause is different than what is required in a criminal matter. The court noted “the evidence of a specific violation required to establish administrative probable cause … must at least show that the proposed inspection is based upon a reasonable belief that a violation has been or is being committed and not upon a desire to harass the target of the inspection.”

There, OSHA relied on past employer OSHA logs as evidence that a full-scale inspection was warranted. However, the court stated that while OSHA logs may indicate “hazards”, it does not necessarily show “violations”, which is what is required in the standard of proof. Moreover, the content in this employer’s logs did not constitute enough evidence to indicate OSHA violations, and OSHA’s investigation warrant was quashed. However, the court noted that there may be circumstances where the content of an employer’s OSHA logs, a specific violation plus historical violations, or a specific complaint that permeates the workplace may be sufficient evidence of violations justifying issuing an inspection warrant.

Action Items

  1. Review OSHA inspection procedures with legal counsel.
  2. Have OSHA logs reviewed for compliance and exposure.
  3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2018 ManagEase

Eleventh Circuit: Joint Employer Standard Clarified Under the FLSA and Common Law

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August 2, 2018

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In Garcia-Celestino v. Ruiz Harvesting, Inc., the Eleventh Circuit distinguished the joint employer standard under the Fair Labor Standards Act (FLSA) and common law. Each standard turns on the applicable definition of “employee” and “control,” but are not the same. There, migrant workers under the H-2A visa program filed suit against their employer and a citrus grove owner for minimum wage violations under the FLSA and for breach of their contract, which was based on federal immigration statutes and regulations. The court looked at whether or not the citrus grove owner was a joint employer.

Seventh Circuit: ADEA Applies to Employees and Job Applicants

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April 26, 2018

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In a split from an Eleventh Circuit ruling last year, the Seventh Circuit Court of Appeals recently stated that the Age Discrimination in Employment Act of 1967 (“ADEA”) provides protections not only to current employees aged 40 or older, but to similarly situated job applicants as well.

Eleventh Circuit: Race-Neutral Grooming Policy that Rejected Dreadlocks Was Not Disparate Treatment Discrimination

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September 15, 2016

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The Equal Employment Opportunity Commission (“EEOC”) sued an employer on behalf of a black applicant whose job offer was rescinded when she refused to change her dreadlock hairstyle.  On September 15, 2016, the Court of Appeals for the Eleventh Circuit agreed with a district court’s dismissal of the alleged discrimination complaint.  The Court reasoned that Title VII of the Civil Rights Act of 1964 prohibits adverse actions on the basis of immutable characteristics of race, whereas the dreadlocks hairstyle was a mutable choice.  This decision follows other courts in similarly rejecting the argument that hairstyles can be a “determinant of racial identity.”