June 7, 2008
SIXTH CIRCUIT EXTENDS EMPLOYER LIABILITY IN SOME TITLE VII RETALIATION CASES TO COVER RETALIATION BY CO-WORKERS
In an issue of first impression, the Sixth Circuit Court of Appeals joined a majority of its sister circuits in recognizing that Title VII permits claims against an employer for co-worker retaliation in some cases. Four female employees of Anhueser-Busch appealed from a grant of summary judgment in favor of the brewery in this sex-discrimination and retaliation case. Three of the employees alleged that sexual harassment by a co-worker, Robinson, created a hostile work environment. Two of the plaintiffs also asserted the employer was liable for Robinson's alleged retaliation against them. The court noted nothing in the language of Title VII's anti-retaliation provision prevents the principle of employer responsibility from extending to claims for retaliation by co-workers.
Taking into account relevant Sixth Circuit case law and Supreme Court guidance, the court held an employer will be liable for a co-worker's actions if: (1) the co-worker's retaliatory conduct is sufficiently severe to dissuade a reasonable worker from making or supporting a discrimination charge; (2) supervisors or members of management have actual or constructive knowledge of the co-worker's retaliatory behavior; and (3) supervisors or members of management have condoned, encouraged, or tolerated the acts of retaliation, or have responded to the plaintiff's complaints so inadequately the response manifests indifference or unreasonableness under the circumstances.
Hawkins v Anheuser Busch, Inc. (CA6, February 19, 2008) http://www.michbar.org/opinions/us_appeals/2008/021908/38527.pdf
USE OF VIDEO SURVEILLANCE IN STUDENT LOCKER ROOMS VIOLATES FOURTH AMENDMENT RIGHT AGAINST UNREASONABLE SEARCHES
In another issue of first impression, this one regarding the applicability of video surveillance to the Fourth Amendment's prohibition against unreasonable searches, the Sixth Circuit Court of Appeals held the plaintiffs-students had a privacy right protected by the Fourth Amendment not to be videotaped while dressing and undressing in the middle school locker rooms. The court determined the defendant-school principal and defendant-assistant principal were responsible for violating the students' rights under the Fourth Amendment, and were not entitled to qualified immunity as government officials.
Plaintiffs alleged the defendants violated the students' constitutional right to privacy by installing and operating video surveillance equipment in the boys' and girls' locker rooms of a Tennessee middle school, and by viewing and retaining the recorded images (which were accessible via remote Internet connection.) The court noted video surveillance is inherently intrusive. To make matters worse, in this case, the school officials failed to institute any policies designed to protect the students' privacy or to even advise the students or their parents the students were being videotaped. As such, the scope of the secret surveillance significantly invaded the students' reasonable expectation of privacy. Further, nothing in the record indicated defendants had any concerns about student safety and security in the locker rooms to reasonably justify the installation of cameras.
The court held even if common sense did not make it self-evident, case precedent would have led a reasonable school administrator to conclude "the students' constitutionally protected privacy right not to be surreptitiously videotaped while changing their clothes" was clearly established. The court affirmed the district court's denial of qualified immunity to the school principal and assistant principal, but reversed denial of summary judgment to the defendants-board members and director of schools because their roles were too indirect to subject them to liability.
Brannum v Overton County School Board (CA6, February 20, 2008)
http://www.michbar.org/opinions/us_appeals/2008/022008/38545.pdf
ASKING FEMALE JOB CANDIDATE ABOUT HER CAREGIVING RESPONSIBILITIES NOT DEEMED GENDER DISCRIMINATION – AN INTRODUCTION TO FAMILY RESPONSIBILITIES DISCRIMINATION (FRD)
State and federal courts in Michigan continue to buck the trend of cases nationwide which condemn workplace discrimination against employees based on their caregiving responsibilities and gender stereotyping relative to those responsibilities. These “FRD” (Family Responsibilities Discrimination) cases evolved from the kinds of protections against sex discrimination afforded under Title VII and the Elliott Larsen Civil Rights Act (ELCRA). In this particular case, plaintiff-Veres asserted one of the reasons the decision maker did not promote her was because she was female, as evidenced by the questions she was asked during the interview about her children affecting her ability to travel. She pointed out the other candidates, including the man hired, were not asked these questions.
The court concluded the interview questions plaintiff cited were not discriminatory on their face, but required that inferences be drawn linking the questions to gender discrimination. Even if she was asked questions about caregiving responsibilities while other candidates were not, the court found no discrimination could be established without having to draw an inference that gender played a role in rejecting her for the promotion. While plaintiff pointed to the difference in the nature of questions posed to her, which were not asked of male applicants, the court concluded neither the questions nor the answers suggested gender played a role in the decision to hire the more qualified candidate. In other words, the court failed to find this female candidate was disadvantaged by her subjection to questions about her caregiving obligations, even though her male counterparts were not similarly questioned. Instead, the court focused on whether the plaintiff was as qualified as the man hired for the job.
Holding plaintiff failed to establish a prima facie case supporting an inference gender discrimination played a role in the decision to hire an outside candidate rather than to promote her, the court held defendant-employer was entitled to judgment as a matter of law on her illegal gender discrimination claim under Title VII and the ELCRA. The court granted defendant's motion for summary judgment.
For more information on FRD, visit the Work Life Law website at www.worklifelaw.org or contact Legal Services.
Veres v. TK Holdings, Inc. (ED Mich, March 24, 2008) http://www.michbar.org/opinions/district/2008/032408/38993.pdf
SIXTH CIRCUIT EXTENDS PROTECTION AGAINST TITLE VII RETALIATION TO “RELATED OR ASSOCIATED” THIRD PARTIES
In a very significant decision with broad implications for other areas of law where retaliation is prohibited, the court held the anti-retaliation provision of Title VII of the Civil Rights Act protects a related or associated third-party from retaliation in certain circumstances. The case involves plaintiff Eric Thompson, a metallurgical engineer who worked for defendant-North American Stainless. He met Miriam Regalado, currently his wife, when defendant hired her, and the couple began dating. At the time of Thompson’s termination, he and Regalado were engaged to be married, and their relationship was common knowledge at defendant's facility.
Regalado filed a charge with the EEOC alleging her supervisors discriminated against her based on her gender. The EEOC notified defendant of the charge and, about three weeks later, Thompson’s employment was terminated.
It has been well-established that the person filing a charge with the EEOC is protected from retaliation for doing so. However in this case, Thompson alleged he was terminated in retaliation for his fiancée's EEOC charge. The employer contended performance-based reasons supported the termination. Thompson filed his own charge with the EEOC, which investigated and found "reasonable cause to believe that [the Defendant] violated Title VII" and issued a right-to-sue letter.
The district court granted defendant's motion for summary judgment holding Thompson could not claim he was retaliated against based on the conduct of his fiancée. On appeal, the Sixth Circuit acknowledged that tolerance of third-party reprisals would, no less than the tolerance of direct reprisals, deter persons from exercising their protected rights under Title VII. The court recognized that legitimizing the defendant-employer's conduct in firing Thompson after his fiancée filed a claim with the EEOC would undermine the purposes of Title VII. As such, the court held Title VII prohibits employers from taking retaliatory action against employees not directly involved in protected activity, but who are so closely related or associated with those who are directly involved it is clear the protected activity motivated the employer's action. The court reversed the district court’s grant of summary judgment for the employer.
Thompson v North American Stainless, LP (CA6, March 31, 2008)
http://www.michbar.org/opinions/us_appeals/2008/033108/38916.pdf
ELLIOTT LARSON CIVIL RIGHTS ACT PROTECTS ONLY NATURAL PERSONS, NOT JURIDICAL PERSONS SUCH AS CORPORATIONS
The Michigan Court of Appeals held while the specific words in the ELCRA's definitional sections allow for competing arguments, the overriding purpose of the Act and the specific language granting substantive rights compelled the conclusion the Act's protections apply only to natural persons, and not to juridical persons such as the corporate plaintiffs.
The case arose from an incident at a gas station in Ferndale. According to plaintiffs' complaint, the individual plaintiff (who had an individual suit pending in the trial court) managed the station, plaintiff-JSC Corp. owned the station, and the other two corporate plaintiffs owned the real estate and structures. Plaintiffs asserted a city police officer made discriminatory remarks to the individual plaintiff and dissuaded customers from patronizing the station, allegedly because the individual plaintiff and his father were of Arabic national origin, Islamic religion, and Arabic race.
The court concluded the "essential purport and express language of Michigan's comprehensive civil rights law is to protect people." For example, the law mandates irrelevant characteristics such as age, marital status, race, and sex should not make a difference in hiring and firing decisions. "Were we to extend these protections to juridical persons, this would constitute an unwarranted expansion of the Act." In providing individuals are to be protected from discrimination based on marital status, race, and sex, the Act "grants protection to natural persons, based on these peculiarly and exclusively human characteristics." Every article of the ELCRA "makes clear, by explicit language used in granting rights," those "statutory rights and protections are afforded to natural, not juridical persons." Thus, the court held "juristic persons that seek protection from the anti-discrimination provisions of the Act do not state a cause of action under the Act." The trial court properly granted the city summary disposition and dismissed the corporate plaintiffs.
Safiedine v. JSC Corporation, MI Court of Appeals (Published, April 1, 2008)
http://www.michbar.org/opinions/appeals/2008/040108/38927.pdf
This is a legislative update for the week. Please feel free to use any or all of this report in discussing issues with your membership or with public officials. If you have questions contact the MEA Field Based Lobbyist for your area. For previous issues of this Legislative Update go to http://www.mea.org/gov/legislativeupdates.html.
2008-09 BUDGET BILLS. Today the budget process took a step forward with the report of the May Consensus Revenue Estimating Conference. That report estimates that revenue dedicated to the School Aid Fund (SAF) for 2008-09 will be $11,707,400,000 which is some $163.2 million less than they estimated in January. Looked at another way, this is an increase of 2.9% over the 2007-08 SAF revenue. The 2.9% increase is partially eaten up by a shift of $238 million from the SAF to cover programs that have historically been paid from the state general fund budget.
The state aid bill this year is SB 1107. The bill has passed the Senate and is currently before the House K-12 Appropriations sub-committee. In its current form (as passed the Senate) the state aid bill includes increases of $71/pupil for the Basic Foundation Allowance (the highest foundation allowance) and $142/pupil for the lowest foundation allowance, and a proportional share of the difference for those districts in between the two. That means that the Basic Foundation Allowance is projected at $8,504/pupil while the lowest foundation allowance is projected at $7,346/pupil. In crafting this budget the Senate built in $150 million of the $163 million reduction in the revenue estimates.
We expect the House K-12 sub-committee to amend and report the bill to the full House in the next week or two. If the House version of the bill makes up the entire shortfall from the per pupil allowance, that would require a reduction of $8 to $10 per pupil from what the Senate adopted. Once the House acts on the bill, it will go to a conference committee where the final work will be done, probably in the next month to six weeks.
HIGHER EDUCATION BUDGETS. See the Legislative Update of 4/29/2008 for details on the community college and higher education budget bills for 2008-09. The Consensus Revenue Conference is now projecting that the state general fund budget (GF/GP) will have a reduction of $279.5 million (or 3.1%) in 2008-09 when compared to 2007-08. This will result in further downward pressure on the higher education budgets as they work through the process.
BUDGET 2007-2008. Public Act 137 of 2007 (HB4359) is the 2007-08 state aid bill. See the Legislative Update of 4/29/2008 for more details.
A 2007-08 School Aid Budget Supplemental bill, HB 5531, was signed into law on April 29, 2008 as PA 112 of 2008. The Act provides for negative adjustments to the total spending for foundation allowances and special education based on updated student counts. Additionally, it restores the $4.7 million that was cut from the Michigan School Readiness Program grants last fall, it adds $1.3 million for grants to sparsely populated rural districts, $0.1 million for competitive Cultural Access Grants and $80,000 for Newsline (a news service for the visually impaired). It also includes two expenditures that MEA opposed. Those are $3.3 million for the Department of Education to establish an assessment item test bank, and $0.6 million for the Department to develop end-of-course prototype assessments.
READING REQUIREMENTS FOR CERTIFICATE RENEWAL. The MEA lobby team is working with legislators on a proposal that has surfaced recently in the Senate Education Committee to add a requirement that all teachers complete a course in reading disabilities and differentiated instruction not later than July 1, 2011 or have their certificate invalidated. As of yesterday, May 15, the Senate Education Committee reported SB 842 (version S-3) to the full Senate. Due to our efforts, and contrary to some media reports, this version does NOT contain a requirement for all existing teachers to complete a 3 credit reading course in order to renew their certificates. Instead, it requires school districts to provide at least 5 days of professional development dedicated to the diagnosis and remediation of reading disabilities for all teachers except those who hold a provisional certificate. For holders of provisional certificates as of July 1, 2009 the requirement to take a course in reading disabilities in order to attain a professional certificate remains the same as current law.
CERTIFICATION (STATE BOARD). The State Board is in the process of changing teacher certification requirements. Those working on these changes believe it will take at least one year to develop. However, discussions regarding new certification requirement involve adding a “subjective criterion” (e.g., a subjective evaluation by an administrator or other person that would be a mandatory part of the certification renewal process) that would in effect provide for a continuing probationary period. We have been asked to participate in a workgroup to address our concerns over the possible change from objective standards (years of teaching experience and class hours) to one that would give administrators (some without education degrees and experience) the authority to determine continued employment of a trained and “highly qualified” teacher.
MANDATORY FULL DAY KINDERGARTEN, SB 162 and HB 4662. HB 4662 is getting some movement in the House while SB 162 languishes in the Senate Education Committee (see the 4/29/2008 Legislative Update for more detail). A substitute version of HB 4662 has been reported to the floor of the full House of Representatives. This version requires a district to provide kindergarten classes. Beginning in 20011-12, for any district that has not made adequate yearly progress under the NCLB law, it would require that the length of the kindergarten day be the same as the day of other elementary school grades operated by the district. For all districts it would phase in as of 2011-12 a requirement that a child be age 5 by September 1 of the school year in order to be eligible to attend kindergarten that year.
KINDERGARTEN FUNDING. Related to the full day kindergarten proposals is the issue of per pupil funding for kindergarten students. Under the current state aid act all kindergarten students count as a per pupil FTE whether they attend for a full day or for a partial day. The budget proposal from the Governor changed this funding scheme to provide a full per pupil allowance for kindergarteners who attend school a full day and to reduce the amount proportionally for those who attend for only part of a day. The Senate passed version of 2008-09 state aid (SB 1107) continues the current language of counting all kindergarten pupils as a full FTE for state aid purposes. On 4/16/08 the House K-12 Appropriations sub-committee chairperson proposed changing the kindergarten count to be the same as the Governor’s proposal. This will be taken up by the K-12 sub-committee when it acts on the bill.
PUBLIC EMPLOYEE RETIREMENT HEALTH CARE, HB 5913. While nothing will happen on this issue this week, the bill is under active consideration and discussion. This bill will authorize and create irrevocable public employee retirement health care trust for the purpose of holding, investing, and distributing assets to be used for post-employment health care benefits as well as set forth certain rights that public employees have in retirement health care benefits. This is one possible vehicle for discussion of the whole question of how to pay for retirement health care benefits for public employee retirees, including school retirees. The issue is being discussed in the House Public Retiree Health sub-committee, chaired by Rep. Mark Meadows (D-East Lansing). MEA has been meeting with and monitoring the activities of this committee.
HB 5375 the Michigan Promise Zone Act, this bill creates a new law to provide assistance with the cost of higher education for low income students. See the Legislative Update for 4/29/08 for more details. The bill passed the House on December 13th and is in the Senate Education Committee. MEA has concerns related to the fact that this is yet another hit to the school aid fund for something that is not a K-12 expenditure.
ACADEMIC FREEDOM BILL, HB 6027, sponsored by Representative Moolenaar (R-Midland). This Bill adds significant protections to academic freedom. The State Board, Board of the local school district or ISD, and other public school officials shall endeavor to assist and allow teachers to help pupils understand, analyze, critique, and review and an objective manner the scientific strengths and weaknesses of existing scientific theories pertinent to the course being taught. These officials shall not prohibit any teacher in a public school in this state from helping a pupil to understand, analyze, critique, and review in an objective manner the scientific strengths and weaknesses of existing scientific theories pertinent to the course being taught.
MANDATORY ATTENDANCE AGE. HB 4042/SB 11 and HB 5594 would establish a mandatory attendance age of 18. See the Legislative update for 04/29/2008 for more details.
HB 4533 OUTSOURCING/PRIVATIZATION would remove the prohibition against bargaining over outsourcing or the impact of outsourcing that is currently contained in PERA. The bill passed the House in May and was referred to the Senate Education Committee. We continue to seek ways to move the bill through the Senate and onto final passage.
CLAIMS DATA, HB 5454 would fix the problems created by SB 418 (P.A. 106). It would change the required claims data to be released to the data on which the district has been rated. This is what we attempted to achieve when SB 418 was moving. However, the House leadership refused to make passage of this bill the price for the Senate leadership to get the fix it wanted on the “service tax” when that issue was addressed in December, 2007.
CAMPAIGN FINANCE, HB 4628 makes several changes in the Campaign Finance Act. These include removal of the requirement to have an annual authorization to collect PAC contributions by payroll deduction and a provision to allow payroll deduction of PAC contributions by public employers.
ATHLETIC EVENT TRAVEL. Representative Bert Johnson sponsored legislation that was heard in the House Education Committee, last Tuesday HB 5244 would amend the School Code to require in the board of a school district to ensure that the district is not a member of an athletic conference that limits the distance that an athletic team may travel to participate in a game, meet, match, contest, or competition. The purpose is to give local school districts the flexibility to determine the distance their athletic teams can travel to participate in sporting events, which will enhance local control for scheduling athletic events.
NO CHILD LEFT BEHIND REFORM. HR 268 sponsored by Representative Michael Sak was reported from the House Education Committee on April 30 with a recommendation that it pass. It provides that the Michigan House of Representatives urges the United States Congress to enact legislation to reform the NCLB Act. MEA supported this resolution.
DUE PROCESS EXPULSION, HB 5411 AND HB 5832, would require school district officials to notify students who face expulsion of their due process rights, promulgate policies to protect those rights and abstain from voting on cases where there is a conflict of interest. The bill has been amended and reported to the floor of the House of Representatives where it awaits action on the 2nd Reading Calendar.
HB 4886 and HB 4902 would require certain emphases in the teaching of African history in middle school and high school courses. The MEA supports these bills which have strong bi-partisan support and have passed the Michigan House on a vote of 106 to 0. They are now in the Senate Education Committee.
SB 747 would require that students be excused for up to one day for the deployment or return from duty of a parent who is in the military. The bill has strong bi-partisan support and has passed the Senate on 10/18/07.
MEAP CHANGES. The Michigan Association of Secondary School Principals is pursuing legislation that would modify MEAP testing requirements. One of these efforts involves eliminating the wrap-around test or at least limit its funding to 10% of that required to take the ACT. This would save revenue and extra time required to provide this additional testing service. The legislature is considering requiring the same testing days because of the release of test writing questions to the media causing extensive retakes and additional funding experienced in the last few weeks. No specific legislation has yet been proposed.
HB 4924 would prohibit a school district from operating a school or other educational program outside of its boundaries without the written permission of the board of the school district in which the school/program is to operate. The bill passed the House by a vote of 84-23. MEA is