Wednesday, December 6, 2017

It's Time to Reconsider the Cultural Context of Sexual Harassment

Charlie Rose: On November 14, 2017, CBS fired 75-year-old Charlie Rose after eight women who worked for him accused him of exposing himself and groping their breasts, buttocks, legs, and genitals. The incidents spanned more than a decade—from the 1990s through 2011.

Matt Lauer: On November 29, 2017, NBC News fired Matt Lauer after a colleague alleged he engaged in inappropriate sexual behavior toward her which lasted for several months. This allegation was followed by accusations from five other women that Lauer sexually harassed them in the workplace.

Representative John Conyers, Jr: On December 4, 2017, 88-year old Representative John Conyers, Jr., of Michigan, the longest-serving member of the House of Representatives, resigned amid accusations of sexual harassment by several female employees. Several of his former aides alleged that he demanded sexual favors from them or touched them inappropriately.

Harvey Weinstein: Almost daily, new allegations of sexual misconduct emerge against the mogul movie producer Harvey Weinstein, who has reportedly fled to Europe for sexual addiction rehabilitation.

Sexual harassment in the workplace is not confined to Hollywood, major media outlets, or the legislature. Statistics show that “[a]pproximately 15,000 sexual harassment cases…are brought to the Equal Employment Opportunity Commission (EEOC) each year.” A telephone poll of 782 workers revealed that 31% of the women workers claimed to have been sexually harassed at work. It is quite likely, though, that even these appalling statistics do not accurately represent the number of people who are sexually harassed at work. According to the EEOC’s June 2016 Select Task Force on the Study of Harassment in the Workplace: “Common workplace-based responses by those who experience sex-based harassment are to avoid the harasser, deny or downplay the gravity of the situation, or attempt to ignore, forget, or endure the behavior. The least common response to harassment is to take some formal action–either to report the harassment internally or file a formal legal complaint. Roughly three out of four individuals who experienced harassment never even talked to a supervisor, manager, or union representative about the harassing conduct. Employees who experience harassment fail to report the harassing behavior or to file a complaint because they fear disbelief of their claim, inaction on their claim, blame, or social or professional retaliation.”

Failure to report a harassment claim due to fear of disbelief of the claim and inaction on the claim likely stems from a cultural environment present in the workplace which ignores and even accepts (whether implicitly or explicitly) sexual harassment. Unfortunately, the legal genesis for the burgeoning cultural acceptance of sexual harassment in the workplace may be attributed to the Supreme Court. In 1998, the Supreme Court held in Oncale v. Sundowner Offshore Services, Inc., that sex discrimination consisting of same-sex sexual harassment is actionable under Title VII. While that holding is laudable, the Supreme Court attempted to prevent its holding from expanding into a “general civility code,” which Title VII does not permit:
We have emphasized…that the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s position, considering ‘all the circumstances.’…In same-sex (as in all) harassment cases, that inquiry requires careful consideration of the social context in which particular behavior occurs and is experienced by its target. A professional football player’s working environment is not severely or pervasively abusive, for example, if the coach smacks him on the buttocks as he heads onto the field—even if the same behavior would reasonably be experienced as abusive by the coach’s secretary (male or female) back at the office. The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed. Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing…and conduct which a reasonable person in the plaintiff’s position would find severely hostile or abusive.
It is precisely this “social context” that has seemingly fueled the acceptance of sexual harassment in the workplace. Kyle Godfrey-Ryan, one of Charlie Rose’s accusers, said that “Rose walked around one of his New York City homes nude in front of her at least a dozen times.” Godfrey-Ryan also alleged that Rose “called her several times to discuss his fantasies of her swimming naked in his Bellport pool as he watched her from his bedroom.” Godfrey-Ryan claimed to have informed Rose’s producer about his phone calls. “I explained how he inappropriately spoke to me during those times.” Rose’s producer “would just shrug and just say, ‘That’s just Charlie being Charlie.’” Another of Rose’s accusers claimed that while she was working for Rose in his Manhattan apartment, he called out her name while he was showering. When she did not respond, Rose emerged from the shower wearing only a towel and said to her, “‘Didn’t you hear me calling you?’” When she reported his behavior to someone in the office, a male colleague approached her, laughing, and said, “‘Oh, you got the shower trick.’”

Describing the social context that is pervasive in Hollywood, George Clooney stated, “[I]n some ways, a lecherous guy with money picking up younger girls is unfortunately not a news story in our society.” Matt Damon commented, “We vouch for each other all the time…We know this stuff goes on in the world. I did five or six movies with Harvey [Weinstein]. I never saw this.” However, “[t]he ‘not seeing’ is a common theme in actors’ responses to this scandal.” Three women who accused Matt Lauer of sexually harassing them “complained to NBC about Lauer’s behavior in the past–and the network didn’t do anything.” Nor did government leaders respond immediately to the claims that Representative John Conyers, Jr., sexually harassed his former aides: “Democratic leaders at first circled protectively around Conyers, but as the number of accounts grew, members of his party began calling for his departure.”

The social context present in many workplaces not only creates an atmosphere that is conducive to sexual harassment, but it also keeps any attempts at prevention training from succeeding. For example, “employees who already believed that their employers tolerated sexual harassment took that cynicism into training sessions and were less motivated to learn from it.” “Institutional cultural change is needed. If workplace environments are influencing employees’ attitudes toward training and/or its actual effectiveness, then employers need to pay more attention to the cultural environment of their organization.”

When determining whether harassment claims are actionable, courts are directed to consider the “totality of the circumstances,” including the nature and frequency of the offensive encounters. The conduct “must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive.” The key question is, though, who is a “reasonable person”? The Sixth Circuit held in Highlander v K.F.C. Management Co. that a court must “adopt the perspective of a reasonable person’s reaction to a similar environment under similar or like circumstances to determine if the defendant’s conduct would have interfered with the work performance and would have seriously affected the psychological well-being of that characterized individual.” Is that “reasonable person’s” reaction under similar circumstances a work colleague who is so familiar with Rose’s sexual misbehavior that he believes a woman being asked by Charlie Rose to come into the shower with him is nothing unusual? Is that “reasonable person” a work colleague who has become so numbed by the pervasiveness of wealthy men picking up younger women in Hollywood that he simply does not “see” Harvey Weinstein sexually harassing actresses who are working on his films? Is that “reasonable person” the nation’s government leaders who do not force Representative John Conyers, Jr.’s resignation from office until a particular number of women have accused him of sexual harassment?

In 1991, the Ninth Circuit held in Ellison v. Brady that “a female plaintiff states a prima facie case of hostile environment sexual harassment when she alleges conduct which a reasonable woman would consider sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment.” The Ninth Circuit explained the rationale behind its “reasonable woman” standard: “We adopt the perspective of a reasonable woman primarily because we believe that a sex-blind reasonable person standard tends to be male-biased and tends to systematically ignore the experiences of women.” The Ninth Circuit made clear in Ellison, though, that “where male employees allege that co-workers engage in conduct which creates a hostile environment, the appropriate victim’s perspective would be that of a reasonable man.” The Ninth Circuit continues to this date to adopt the reasonable woman or man standard, depending on the gender of the plaintiff.

In Ellison, the Ninth Circuit stated that, “analyzing harassment from the perspective of the victim requires “among other things, an analysis of the different perspectives of men and women. Conduct that many men consider unobjectionable may offend many women.” Further, “[a]dopting the victim’s perspective ensures that courts will not ‘sustain ingrained notions of reasonable behavior fashioned by the offenders.’ Congress did not enact Title VII to codify prevailing sexist prejudices.”

The Ninth Circuit appropriately assessed the severity of the harasser’s conduct from the perspective of the reasonable victim, rather than from the perspective of the organizational and social context from which it arose–which often ignores and even accepts that behavior.

Adopting the Ninth Circuit’s standard across the country just might curb the precipitous tide of sexual harassment that is occurring in Hollywood, major media outlets, the national legislature, and in the most common of workplaces.

Written by Valerie A. LeFevere

This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at

Wednesday, November 29, 2017

The FLSA Has Meaningful Teeth to Prevent Retaliation

The Fair Labor Standards Act (“FLSA”) establishes minimum wage and overtime protections for many workers in the U.S., including many federal employees. While the FLSA prohibits retaliation against any person who has filed a complaint or cooperated in an FLSA investigation, workers are often deterred or prevented from asserting workplace rights for fear of retaliation. Fortunately for employees, courts are sending an increasingly clear message: employees must be free to bring FLSA claims; and anybody who retaliates against them does so at their own peril.

The FLSA’s anti-retaliation provision states:
It shall be unlawful for any person – (3) to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.
29 U.S.C. § 215(a) (emphasis added). This is broad language, which courts have interpreted as meaning that individual employees, managers, and even non-employees acting in the interest of the employer can be held individually liable for FLSA retaliation.

In a recent Ninth Circuit case, the Court held that an employee who was retaliated against for complaining of illegal pay practices could even sue the employer’s outside attorney responsible for the retaliation. Arias v. Raimondo, 860 F.3d 1185 (9th Cir. 2017). There, the employer’s attorney attempted to derail the employee’s case shortly before trial by notifying Immigration and Customs Enforcement (ICE) of the employee’s immigration status. In particular, the attorney scheduled the employee’s deposition and then told ICE where it could find the employee that day.

In Arias, the Court found that even though the attorney was not the employer, the attorney’s conduct was an attempt to penalize the employee for complaining about his pay and, therefore, “manifestly falls within the purview, the purpose, and the plain language” of the FLSA. Arias at 1192. The Ninth Circuit distinguished between FLSA liability based on its wage and hour economic provisions and its anti-retaliation provisions, explaining:
The wage and hours provisions focus on de facto employers, but the anti-retaliation provision refers to "any person" who retaliates. See 29 U.S.C. § 215(a)(3). In turn, section 203(d) extends this concept to "any person acting directly or indirectly in the interest of an employer in relation to an employee." See Id. § 203(d). Thus, Congress clearly means to extend section 215(a)(3)'s reach beyond actual employers.
Arias, 860 F.3d at 1191-92.

In addition to a broader understanding of who can be liable for FLSA retaliation, Congress also expanded the remedies available to employees when it created a private cause of action to enforce the FLSA’s anti-retaliation provision. Fair Labor Standards Amendments of 1977, Pub. L. No. 95-151, 91 Stat. 1252 (Nov. 1, 1977). While employees bringing traditional wage and hour claims are limited in the types of relief they can recover (back pay, liquidated damages, etc.), those who claim FLSA retaliation can seek “such legal or equitable relief as may be appropriate.” 29 U.S.C. 216(b). Circuit Courts of Appeals are increasingly agreeing that these remedies include compensation for emotional injuries suffered by an employee because of employer retaliation. In particular:
  • The 5th Circuit recently authorized an award of compensatory damages as a result of retaliation for protected FLSA activity. The plaintiff worked for his landlord, who required him to vacate his apartment after he sought payment for unpaid overtime. See Pineda v. JTCH Apartments, LLC, 843 F.3d 1062 (5th Cir. 2016).
  • The 6th Circuit upheld an award of compensatory damages of $40,000 for mental and emotional distress as a result of FLSA retaliation where an employee was fired after raising FLSA claims. See Moore v. Freeman, 355 F.3d 558, 563 (6th Cir. 2004).
  • The 7th Circuit upheld an award of $35,000 for emotional distress and $45,500 in punitive damages for FLSA retaliation where the employer fired a supervisor who testified in an employee’s FLSA case. See Travis v. Gary Cmty. Mental Health Ctr., 921 F.2d 108 (7th Cir. 1990).
  • The 9th Circuit upheld an award of compensatory damages of $75,000 to each individual plaintiff as well as $4,182,000 in punitive damages as a result of retaliation for participation in an FLSA proceeding, after the employer fired employees who complained about overtime violations. See Lambert v. Ackerley, 180 F.3d 997 (9th Cir. 1999).
On its own, the threat of potential civil liability and the prospect of having to pay damages for pain and suffering ought to cause individuals to tread carefully when taking action against employees who have engaged in FLSA-protected activity. If that isn’t sufficient deterrent, however, it is also feasible that individuals could face criminal charges for FLSA retaliation:
Any person who willfully violates any of the provisions of section 215 of this title shall upon conviction thereof be subject to a fine of not more than $10,000, or to imprisonment for not more than six months, or both. No person shall be imprisoned under this subsection except for an offense committed after the conviction of such person for a prior offense under this section.
29 U.S.C. § 216(a). While criminal prosecution under the FLSA is rare, if courts continue to emphasize the broad reach of the FLSA’s anti-retaliation provisions, it is possible that prosecutors could resurrect this seldom-used provision allowing criminal prosecution for individuals responsible for FLSA retaliation. As one court warned, any retaliatory response to employees participating in an FLSA claim will be treated with the utmost seriousness, “including considering referring the matter to the United States Attorney for criminal prosecution of FLSA violations or even obstruction of justice.” Morangelli v. Chemed Corp., 2011 WL 7475 (E.D.N.Y. Jan. 1, 2011), citing Meek v. U.S., 136 F.2d 679 (6th Cir. 1943) (sustaining conviction for retaliating against employees who filed FLSA claim).

Courts’ increasing willingness to broadly apply the FLSA’s anti-retaliation provisions is good news for FLSA plaintiffs and prospective litigants. With such significant penalties for FLSA retaliation, employees can feel more comfortable exercising their rights, and employers and individuals acting on their behalf should be more mindful of their responsibilities and the consequences of running afoul of the law.

Written by Robert DePriest.

This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at

Friday, November 17, 2017

Montgomery County, Maryland passes $15/hour minimum wage. Who is affected, what are the caveats, and will it last?

On Monday, November 13, Montgomery County Executive Isiah Leggett signed into law the County Council’s bill increasing the County-wide minimum wage to $15.00 per hour for certain employers by 2021. Under Montgomery County Council Bill 28-17, as enacted, the law provides a transition period to allow for the annual incremental increase of the hourly minimum wage paid by “large” employers, which are defined as those who employ 51 or more employees. Previous incremental adjustments to the County’s minimum wage did not account for the size of the employer.

For large employers, the County minimum wage increases from $11.50 effective July 1, 2017 to $12.25 per hour on July 1, 2018; to $13.00 per hour effective July 1, 2019, to $14.00 per hour effective July 1, 2020, and to $15.00 per hour effective July 1, 2021. The law provides that the minimum wage paid in any given year shall be the greater of that provided under the County law or under the prevailing state or federal law.

Regardless of the size of the employer, beginning July 1 in the year after the $15.00/hour minimum wage is reached, the County’s Chief Administrative Officer must adjust the minimum wage each subsequent July 1 by the annual average increase in the Consumer Price Index (CPI) for Urban Wage Earner and Clerical Workers for Washington-Baltimore, during the previous calendar year. For mid-sized and small employers, if the annual average increase under the CPI is less than $.50, then the annual increase shall be one percent of the minimum wage required for the previous year, up to a total increase of $.50.

Who is exempt from the County’s $15.00/hour minimum wage increase?

The County minimum wage does not apply to an employee who is under 19 years of age and is employed for fewer than 20 hours per week, or to an employee who is exempt from the minimum wage requirements under state or federal law.

Moreover, employers with fewer than 51 employees will have a longer transition period to implement the minimum wage.

What are the caveats to the County’s minimum wage increase?

The public policy behind the legislation to provide an improved standard of living for otherwise low-wage, hourly earners in Montgomery County is apparent from the exclusion of employees 19 years and younger who are employed for fewer than 20 hours a week. Still, during their first six months of employment, employers retain discretion to pay employees under 20 years old a wage equal to 85% of the County minimum wage.

Mid-size employers are defined as those who employ between 11 and 50 employees or as an employer who employs 11 or more employees and either has 501(c)(3) tax-exempt status or provides certain home health-care services whose revenues are derived at least 75% in part through Medicaid programs. Mid-sized employers benefit from a longer transition period, and they have until July 1, 2023, rather than 2021, to implement the minimum wage. The minimum wage for mid-sized employers increases from $11.50 effective July 1, 2017 to $12.00 per hour effective July 1, 2018, and then to $12.50 per hour by July 1, 2019; to $13.25 per hour by July 1, 2020; to $14.00 per hour by July 1, 2021; to $14.50 per hour by July 1, 2022; and finally to $15.00 per hour by July 1, 2023.

Small employers, or those employers with 10 or fewer employees, will have until 2024 to implement the $15.00 per hour minimum wage. The minimum wage for small employers increases from $11.50 effective July 1, 2017 to $12.00 per hour effective July 1, 2018 and then incrementally increases on July 1 of each year to $12.50 per hour in 2019; $13.00 per hour in 2020; $13.50 per hour in 2021; $14.00 per hour in 2022; $14.50 per hour in 2023; and finally to $15.00 per hour in 2024.

The number of employees at an employer is determined by the employer’s average number of employees per calendar week during the preceding calendar year for all weeks during which at least one employee worked for compensation. For employers that did not have employees in the preceding calendar year, the number of employees must be calculated based on the average number of employees who worked for compensation per calendar week in the first 90 calendar days of the current year in which the employer engaged in business, effective as of the time the employer first becomes subject to the Act and remains subject to any section of the Act.

Will the law last?

The County Executive’s signature of the bill into law stands in contrast to his veto of similar legislation passed by the County Council in January 2017, under which the $15.00 minimum wage would be effective by July 1, 2020. Under previous law that was enacted in 2014, also under Mr. Leggett’s leadership, the County’s $9.25 per hour minimum wage, which was effective July 1, 2016, increased to $11.50 per hour effective July 1, 2017.

Yet in January 2017, Mr. Leggett’s reported concern was that the legislation would put Montgomery County at a “competitive disadvantage…compared to…neighboring jurisdictions.” By comparison, the $9.25 per hour minimum wage in Prince George’s County increased to $11.50 per hour on July 1, 2017. In the District, the current minimum wage of $12.50 is on track to increase incrementally to $15.00 per hour by July 2020, the same date as the proposed legislation in Montgomery County. In his January 2017 veto message, Mr. Leggett also commissioned a study of the economic impact of a $15.00 per hour minimum wage on the County’s public, private, and non-profit sectors and pushed for a revised bill that extended the wage increase’s phase-in to 2022, and which included an exemption for small businesses and youth workers.

On the whole, most of the conditions Mr. Leggett sought are not satisfied by or do not support the current law. Indeed, the study commissioned by the County Executive fails to make any finding about the impact of the minimum wage increase on non-profit employers in Montgomery County. Opponents of the legislation in Montgomery County, as with those opposed to the $15.00 per hour minimum wage trend, have long argued that such sharp wage increases lead to layoffs and overburden businesses. For example, the study projected that approximately 47,000 jobs would be lost by 2022 as a result of the County’s increase in the minimum wage. Out of those jobs, approximately 43,500 of the lost positions were expected to be for low-wage workers. And far from exempt, under the new law, small businesses must implement the increase to $15.00 per hour by 2024, just three years after large employers are required to do so in four years’ time by 2021.

So why enact this law now? Interestingly, and perhaps as an acknowledgement of the risks the $15.00 per hour minimum wage mandate presents so soon after a recession and as a nod to the business interests in the County, the law provides for the suspension of the minimum wage increases in the event economic conditions do not support a minimum wage increase. Between 2018, and annually until 2024, the County’s Director of Finance must certify to the County Council and Executive whether any of the four following conditions are met:

  1. whether total private employment for Montgomery County decreased by 1.5% from April 1 to June 30 of the previous year, as compared to the total private employment in June and the total private employment in April, as reported by Maryland’s State Department of Labor Licensing, and Regulation’s (DLLR’s) Quarterly Census of Employment and Wage data series;
  2. whether total private employment for the County decreased by 2% from January 1 to June 30 of the previous year, compared to total private employment in June to total private employment in January, as reported by DLLR;
  3. whether the gross domestic product of the United States, as published by the U.S. Department of Commerce, has experienced negative growth for the preceding two quarters; and
  4. whether the National Bureau of Economic Research has determined that the United States economy is in recession.
The law provides that in any given year, if any of these conditions is satisfied, the County Executive may temporarily suspend the minimum wage increases for a year, and if the Executive does so, implementation of the minimum wage increases that follow the temporary suspension must be postponed by an additional year.

By signing the law with this provision in the third year of his third and final term as County Executive, Mr. Leggett appears to receive the benefit of embracing and signing a $15.00 per hour minimum wage into law, while simultaneously leaving the door open for his successor to suspend its implementation if economic conditions do not support it.

Written by Puja Gupta.

This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at

Tuesday, November 7, 2017

Small Steps Toward Greater Whistleblower Protections

On October 26, 2017, the Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017 became law. Officially referenced as Pub. L. 115-73, this statute had tragic origins: Dr. Kirkpatrick was fired from the Tomah Veterans Affairs Medical Center after he blew the whistle on how his patients were receiving disturbingly high doses of drugs that prevented him from providing them with proper psychiatric treatment. After Dr. Kirkpatrick gathered his personal belongings, he secured care for his dog, wrote to tell his girlfriend he loved her, and committed suicide. The Veterans Administration never investigated Dr. Kirkpatrick’s death.

In response, Congress enacted the following changes:
  1. Under Sec. 102, when the Merit Systems Protection Board (“MSPB”) stays an action proposed against a potential whistleblower, including probationary employees, the head of the employing agency must give priority to any request for a transfer by the employee. Additionally, the Comptroller General of the United States must submit a report on the subject of retaliation against probationary employees.
  2. Under Sec. 103, a new prohibited personnel action is added to forbid agencies from accessing the medical records of employees or applicants in furtherance of the original 13 prohibited personnel practices.
  3. Under Sec. 104, if a supervisor is found to have retaliated against a whistleblower, the head of the employing agency must, at minimum, propose a 3-day suspension for a first offense, and must propose the supervisor’s removal from federal service after a second offense. 
  4. Under Sec. 105, if a whistleblower commits suicide, the head of the agency must refer this information, as well as any information in its possession relating to the circumstances of the suicide, to the Office of Special Counsel, who will examine whether the whistleblower had been retaliated against and who will take any action it deems appropriate within its authority.
  5. Under Sec. 106, agencies must provide training on handling complaints of whistleblower retaliation to all new supervisors and to all supervisors on an annual basis.
  6. Under Sec. 107, the heads of covered agencies are responsible for preventing retaliation against whistleblowers and for ensuring that employees are informed of their rights and the available avenues for relief. 
The Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017 became law after passing unanimously in both houses of Congress. The Senate Report notes that Special Counsel Lerner cited numerous examples of the VA failing to discipline officials found responsible for posing significant risks to public health and safety or engaging in other misconduct. Special Counsel Lerner added that this lack of discipline “stand[s] in stark contrast to disciplinary actions taken against VA whistleblowers . . . for minor indiscretions or for activity directly related to the employee’s whistleblowing.”

Astoundingly, this is not the first time that it took the death of a whistleblower to instigate much needed change: we have previously written about the Kate Puzey Peace Corps Volunteer Protection Act of 2011, which was enacted after Peace Corps Volunteer Kate Puzey was brutally murdered in retaliation for her whistleblowing about sexual assaults.

Even now, our intelligence community whistleblowers are exempt from many protections that other federal employees enjoy. On the very day that the Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017 became law, the Federal Circuit issued Parkinson v. Department of Justice, which denied preference-eligible (veteran) FBI employees who face retaliation for whistleblowing any recourse to the MSPB. Parkinson is a stark reminder that while Congress has made small steps towards greater protection, more remains to be done. Let it be before any more lives are lost.

By Nina Ren

This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at

Tuesday, October 31, 2017

Gagging on sexual harassment

Recent sexual harassment scandals involving Harvey Weinstein, Roger Ailes and Bill O’Reilly have raised concern about the effect of confidentiality clauses in settlement agreements. These “gag clauses” can prevent victims from learning about other victims of the same harasser, deter victims from acting in concert to stop harassment, and deny them the comfort of sharing their account of what happened to them. It can also stymie the public goal of deterring future harassment and holding perpetrators accountable through civil and criminal proceedings. Some state legislators are considering bills that would ban such clauses.

Most workers, however, already have legal grounds to challenge such clauses. The federal Equal Employment Opportunity Commission (EEOC) prohibits agreements that restrict the right of all workers to file discrimination, harassment, retaliation or other charges with the agency. In EEOC v. Cosmair, Inc., the Fifth Circuit held that, “an employer and employee cannot agree to deny the EEOC the information it needs to advance [the] public interest.” Also, “A waiver of the right to file a charge is void as against public policy.” However, while courts have upheld the ability of victims to file future charges, they also have upheld agreements waiving the ability to obtain damages or other monetary relief as a result of those charges.

When the EEOC is a party to a lawsuit, it will oppose any confidentiality clause. Its policy states:
Once the Commission has filed suit, the agency will not enter into settlements that are subject to confidentiality provisions, it will require public disclosure of all settlement terms, and it will oppose the sealing of resolution documents. The principle of openness in government dictates that Congress, the media, stakeholders, and the general public should have access to the results of the agency's litigation activities, so that they can assess whether the Commission is using its resources appropriately and effectively. Additionally, one of the principal purposes of enforcement actions under the antidiscrimination statutes is to deter violations by the party being sued and by other entities subject to the laws. Other entities cannot be deterred by the relief obtained in a particular case unless they learn what that relief was.
For publicly traded companies, the Securities and Exchange Commission (SEC) has imposed fines when they seek to restrain employees or former employees from providing information to its official investigations, or even from seeking an award for providing such information. See our previous blogs about this rule here and here.

The Occupational Safety and Health Administration (OSHA) followed the SEC’s example and issued a policy barring clauses in settlement agreements that restrain employees from any “protected activities.”

OSHA investigates violations of 22 federal whistleblower laws that protect activities to help enforce environmental, transportation safety, corporate and consumer finance, food and consumer product safety, and some other workplace safety laws. You can see a more comprehensive list of federal employee protection laws at our blog post on the subject. My presentation on whistleblower laws is available here.

For those workers who have a right to organize a union (whether or not they actually have a union), the National Labor Relations Act (NLRA) protects their right to engage in concerted activity for their mutual aid and protection. The National Labor Relations Board (NLRB) has recognized that this protection includes the right to share information with coworkers about problems with working conditions. This would include not only sexual harassment, but also workplace safety, discrimination, and wages. Employer policies or agreements that make workers think they cannot talk with their coworkers are per se violations of the NLRA.

As a result of these protections for workers, enlightened employers will include “government access” clauses in their settlement agreements. These clauses explicitly permit workers to file charges with or provide information to government agencies. Employees protected by the NLRA or by whistleblower laws are also protected in raising their concerns more publicly. In Department of Homeland Security v. MacLean, the Supreme Court held that a federal air marshal was protected by the Whistleblower Protection Act when he leaked to the media an agency plan to stop air marshals from traveling due to a budget constraint.

This issue of “gag clauses” arises even among those who otherwise protect civil rights: the National Whistleblowers Center (NWC) asked its employees to sign one in 2012. They refused to sign their gag clause, and prevailed by settlement after filing a charge with the NLRB.

With my coworker, Lindsey Williams, I launched a petition drive against NWC’s gag clause that now has over 5,000 signatures.

While new laws against gag clauses will be helpful, publicity about these efforts should not make workers think they have no protections now. Also, why would legislation be limited to victims of sexual harassment? California, for example, already has a law against restraints on disclosures about child sexual abuse. Will California have to pass a separate law to ban clauses affecting every public interest? We suggest that a more prudent approach would be a single statute that protects all disclosures about any illegality, fraud or danger to public health and safety. Then, our First Amendment rights would be truly inalienable.

By Richard Renner.

This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at

Wednesday, October 18, 2017

Dual Citizenship Rules Change For Clearance Applicants

New Adjudicative Guidelines went into effect on June 8, 2017. These govern security clearance determinations throughout the federal government for both employees and contractors. Of the thirteen guidelines, Guideline C: Foreign Preference has the most changes.

In the previous 2005 version, Guideline C stated its concern:
When an individual acts in such a way as to indicate a preference for a foreign country over the United States, then he or she may provide information or make decisions that are harmful to the interests of the United States.
(¶ 9 (2005)). In the 2017 version, the Adjudicative Guidelines begins with this same statement, but adds the following new explanation:
Foreign involvement raises concerns about an individual’s judgment, reliability, and trustworthiness when it is in conflict with U.S. national interests or when the individual acts to conceal it. By itself, the fact that a U.S. citizen is also a citizen of another country is not disqualifying without an objective showing of such conflict or attempt at concealment. The same is true for a U.S. citizen’s exercise of any right or privilege of foreign citizenship and any action to acquire or obtain recognition of a foreign citizenship.
SEAD 4, Appendix A, ¶ 9 (emphasis added). Two broad conditions may now raise a concern under this guideline: foreign involvement that is in conflict with U.S. national interests and foreign involvement that an applicant fails to disclose.

Significantly, the new Guideline C makes clear that dual citizenship in itself is not disqualifying. If the dual citizenship is appropriately disclosed in the clearance application process and is not judged to be contrary to U.S. national interests, the dual citizen may nevertheless be granted a security clearance. This is a big departure from previous practice where applicants who were dual citizens could get past Guideline C only after surrendering their foreign passport and professing a willingness to renounce the foreign citizenship.

Changes to “Conditions that could raise a security concern and may be disqualifying” (¶ 10 in both the 2005 and 2017 versions) give some indication of how this reshaping of Guideline C is likely to be implemented. A concern raised by “applying for and/or acquiring citizenship in any other country,” (¶ 10(a) (2017)) may be mitigated if it is found that “the foreign citizenship is not in conflict with U.S. national security interests.” (¶ 11(a)). The applicant does not control this determination, of course, but no longer is the exclusion a blanket one for all dual citizens of even the friendliest countries.

A foreign citizenship that is found to be in conflict with U.S. national security interests can nevertheless be mitigated by an expressed willingness to renounce the foreign citizenship. (¶11(c) 2017).

Exercise of “the rights, privileges, or obligations of foreign citizenship,” which, under the previous guidelines could be mitigated if this exercise of rights took place before the applicant became a citizen of the U.S., now may also be mitigated if they “do not present a national security concern.” (¶11(e) (2017)).

Dual citizens may retain and even use a foreign passport except when entering or leaving the U.S.. Guideline C continues to find concerning “failure to use a U.S. passport when entering or exiting the U.S.” (¶10(c) (2017))

Concealment, as throughout the security clearance process, remains disqualifying. Failure to report one’s citizenship in another country, and failure to report the possession of a passport or security card from another country, raises concerns. This concern is also not mitigated.

Of course dual citizenship is not the only circumstance addressed by Guideline C. Under the new Guideline C, the activities of lobbyists or business people who may or may not be foreign nationals are also addressed. Concerns may be raised if an applicant acts,
to serve the interests of a foreign person, group, organization, or government in any way that conflicts with U.S. national security interests.
(¶10(d)(2) (2017)). This concern sweeps into its breadth those who lobby for a foreign government or business. And while it may encompass inadvertent as well as deliberate service to the interests of a foreign entity, it may also allow such service unless it conflicts with U.S. national security interests.

The new Guideline C is good news for dual citizens. It is now possible for a dual citizen to get a security clearance if she fully discloses her connections to the foreign country and if that country is judged to pose no risk to U.S. national security interests. The first is within the control of any applicant; the second is not. It remains to be seen how the new breadth of Guideline C will be implemented.

Written by Mary Kuntz.

This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at

Wednesday, October 4, 2017

“We were going to do it anyway” claims are being debunked in retaliation cases.

Recent decisions and statutes are making it harder for employers to legally claim they “were going to do it anyway” when taking an adverse action against an employee who has engaged in protected activity. Under the Whistleblower Protection Enhancement Act of 2012, a federal agency may escape liability for an adverse action if it can prove by clear and convincing evidence that it would have taken the action even absent the employee’s protected disclosure. In Craig v. Department of Treasury, the U.S. District Court for the District of Columbia rejected the Agency’s claim that it was just “proceeding along lines previously contemplated” when it detailed an SES-level employee to an inferior position just six days after the Agency learned he had filed an informal EEO complaint. In July 2017, the Occupational Safety and Health Administration ordered Wells Fargo to reinstate a Southern California woman, Claudia Ponce de Leon, “who was fired in 2011 three weeks after she called the company’s ethics line to report that colleagues were opening fake accounts in order to meet sales goals.” However, as of September 27, 2017, Wells Fargo was refusing to reinstate Ms. Ponce de Leon, claiming that she “was not fired because she blew the whistle on phony accounts, but because she engaged in inappropriate behavior.” 

Federal government employees alleging unlawful retaliation under Title VII must show that retaliation was a motivating factor in the contested personnel action, even if it was not the only factor. Similarly, under the Sarbanes-Oxley Act, employees alleging bank fraud must show that his or her protected activity was a “contributing factor in the employer’s decision to take unfavorable employment action against the employee.” Even if the employer “were going to do it anyway,” as long as the employee’s protected activity either motivated or contributed to the employer’s decision to take the adverse action, the employer may be held liable. The recent cases involving the Department of Treasury and Wells Fargo identify certain facts that tend to establish the employee’s protected activity was a motivating/contributing factor in the adverse personnel action, thereby negating the defense that the action was going to take place anyway.

In Craig, the Agency claimed that it was contemplating Mr. Craig’s removal from his SES position before he engaged in any protected EEO activity. One month prior to his filing an informal EEO complaint, Mr. Craig and his supervisor discussed the idea of finding another position for him that would be a “better fit.” Just six days after he filed his informal EEO complaint, the Agency formally announced his removal from the SES position. The Court found no retaliation based on his removal from the SES position: “Although ‘temporal proximity of an adverse action close on the heels of protected activity is a common and highly probative type of circumstantial evidence of retaliation,’ the Supreme Court has made clear that ‘[e]mployers need not suspend previously planned transfers upon discovering that a Title VII suit has been filed, and their proceeding along lines previously contemplated, though not yet definitively determined, is no evidence whatever of causality.”

The Court did find, though, a genuine dispute as to whether the Agency’s transferring Mr. Craig to an Executive Lead position–which was an indisputably inferior position– after his removal from the SES position was done in retaliation for his engaging in the EEO process. The Agency claimed that Mr. Craig and his supervisor had discussed the parameters of his new role as the Executive Lead prior to his engaging in EEO activity, and that it was just “proceeding along lines previously contemplated” when it detailed him to the Executive Lead position. Mr. Craig, however, “present[ed] competent evidence that casts doubt on how well formed the position was when Ms. Babers learned of his EEO activity.” The Executive Lead role was not defined when Mr. Craig and Ms. Babers had the “better fit” meeting in September 2012. More importantly, the Court noted, Ms. Babers “had not yet decided at least some fundamental details concerning the position by the time she learned of Mr. Craig’s EEO complaint. For example, Ms. Babers…had not yet ‘made a decision that [Mr. Craig] wouldn’t have any staff as of December 11, 2012’-just six days after she learned of his complaint.” The Court found that a reasonable jury could “conclude that detrimental aspects of the Executive Lead position were not decided until after Ms. Babers learned of Mr. Craig’s EEO activity.” The Court further stated that the critical inquiry is “what Defendant intended Mr. Craig’s detail to be prior to learning of his EEO activity.”

In the Wells Fargo matter, the Labor Department investigation which resulted in the order that Wells Fargo reinstate Ms. Ponce de Leon “found no evidence to back up the bank’s allegations” that she “drank excessively and…engaged in other inappropriate behavior.” At odds with Wells Fargo’s contention that she engaged in inappropriate behavior was the fact that Wells Fargo had promoted her “10 times over the span of a decade and on June 11, 2011, the same month she reported sham accounts. Three weeks later, the bank fired her.” Given Ms. Ponce de Leon’s promotion the same month she reported the sham accounts, it is difficult to credit Wells Fargo’s assertion that it contemplated her removal before it learned of her whistleblowing activity.

In the typical McDonnell Douglas Title VII analysis, when an employer has proffered a legitimate reason for an allegedly retaliatory action, the employee must come forward with “‘positive evidence beyond mere [temporal] proximity…to defeat the presumption that the proffered explanations are genuine.’” Procedural irregularities associated with the adverse action may constitute this positive evidence. In Craig, no one consulted with Human Resources concerning the detail position—which was unusual, according to the Human Resources representative, who “did not even learn about Mr. Craig’s detail until Mr. Peterson issued the Mint-wide announcement on December 11, 2012.” Additionally, Office of Personnel Management procedures governing detail positions for SES employees prohibit details that are not formally classified at the SES level for more than 240 days. “Despite this clear prohibition,” the Court noted, “Mr. Craig encumbered the Executive Lead position, well beyond this 240-day limit.” “Thus, the picture painted by the evidence is this: there was little or no advanced planning done to place Mr. Craig in the Executive Lead position and then, literally days after becoming aware of the EEO claim, Mr. Craig’s transfer was effected following no established procedures. Under those circumstances, a reasonable juror could certainly conclude that this was a knee-jerk reaction done in retaliation for his EEO claims.”

In Ms. Ponce de Leon’s case, given that Wells Fargo promoted her the same month she reported the sham accounts, and that it had awarded her numerous commendations over a period of six years–“the last one of which it awarded six months before firing her”–it is difficult to believe that Wells Fargo would have engaged in advance planning to effectuate her removal prior to becoming aware of her whistleblowing activities.

Ms. Ponce de Leon was the second Wells Fargo whistleblower whom OSHA ordered Wells Fargo to rehire. Around April 3, 2017, OSHA ordered Wells Fargo to not only reinstate a former bank manager, but also to pay him $5.4 million in back pay, compensatory damages, and legal fees. Like Ms. Ponce de Leon, he had received positive job performance reviews prior to his reporting incidents of suspected bank, mail, and wire fraud by two bankers. Wells Fargo told him he had 90 days to find a new job at Wells Fargo. He was fired after his search was unsuccessful, “and has been unable to find work in the banking industry since.”

Senator Elizabeth Warren, D-Mass, hailed OSHA’s order to reinstate Ms. Ponce de Leon as “the right decision to hold Wells Fargo accountable for retaliating against this courageous branch manager.” However, Wells Fargo is refusing to immediately reinstate Ms. Ponce de Leon, claiming the OSHA order is only preliminary, and that it intends to present new evidence on appeal “to prove it is right.” Wells Fargo has also chosen to ignore the Department of Labor’s order to reinstate the former bank manager. Wells Fargo’s refusal to reinstate violates the Sarbanes-Oxley Act regulations, which require immediate reinstatement upon receipt of the findings and preliminary order “regardless of any objections to the order.” Referring to Wells Fargo’s refusal to reinstate Ms. Ponce de Leon and the former bank manager, Senator Warren stated, “Wells Fargo’s continued attacks on its former workers is yet another reason why the Senate Banking Committee needs a hearing with Mr. Sloan [Wells Fargo CEO].” On October 3, 2017, the Senate Banking Committee held a hearing with Mr. Sloan. Senator Warren grilled Tim Sloan during the hearing. “In prepared testimony, Sloan apologized for the creation of the accounts and said the bank has hired back more than 1,000 workers who were wrongly fired or left under a cloud.” However, of the “1,000 who were wrongly fired,” and supposedly re-hired, Wells Fargo is refusing to rehire whistleblowers Ms. Ponce de Leon and the former bank manager.

Wells Fargo’s refusal to obey orders to reinstate whistleblower employees such as Ms. Ponce de Leon and the former bank manager notwithstanding, the recent orders and opinions from OSHA and the D.C. District Court show that employers can no longer always hide behind the “we were going to do it anyway” defense when it comes to retaliation claims.

Written by Valerie A. LeFevere.

This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at 

Tuesday, September 26, 2017

No Remedy for Rape at West Point

Last month, the federal Court of Appeals for the Second Circuit issued a 2-1 decision holding that a female West Point cadet has no remedy against the Academy’s commanders for their systematic failure to protect women from rape. The decision is an unfortunate continuation of judicial deference to military commanders – a deference that has protected government officials when they lie and discriminate. It also continues a sexist tradition of blaming the victim and ignoring our responsibility to deter rape and provide relief to survivors.

The decision came in the case of Doe v. Hagenbeck. Doe alleged that Lieutenant General Franklin Lee Hagenbeck and Brigadier General William E. Rapp, in their personal capacities, bore liability for her rape by another cadet. Lieutenant General Hagenbeck, Superintendent of West Point from 2006 to 2010, chaired the Sexual Assault Review Board, which is the “primary means of oversight” of the sexual assault prevention and response program at West Point. Brigadier General Rapp, Commandant of Cadets at West Point from 2009 to 2011, was in charge of the administration and training of cadets. Doe alleges that Hagenbeck and Rapp “perpetrat[ed] a sexually aggressive culture” at West Point that “discriminated against female cadets,” “put female cadets at risk of violent harm,” and resulted in her sexual assault.

Doe was raped on May 8, 2010, after accepting a drink from an upperclassman. Doe woke up the next morning in bed, bloodied and bruised, with dirt on her clothes and hair. She remembered lying on the concrete floor of a boiler room, not understanding what was happening. Her examination confirmed vaginal tearing, but no rape kit was administered.

In December 2011, the Defense Department issued its Annual Report on Sexual Harassment and Violence at the Military Service Academies for 2010-2011. It provides many statistics supporting Doe’s claim of a culture that accepted sexual assault, frowned on those who complain, and provided little accountability. The report shows that most women who choose not to report sexual assault do so out of fear for their reputation and future careers.

Accepting each of these facts as true, the Court’s majority still held that federal courts could provide no remedy to Doe. The majority relied on Feres v. United States, a case in which the Supreme Court held that, “the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service[.]” Rudolph Feres died in a barracks fire in Pine Camp, New York, and his widow filed a wrongful death claim against the Army alleging that the heating plant was known to be defective and the Army failed to maintain any fire watch.

Feres is one of many cases in which the Supreme Court has been deferential to the military and the Executive Branch on national security matters. In Korematsu v. United States, the Supreme Court permitted the government to forcibly move citizens of Japanese descent into concentration camps. While a monument recalls the suffering of those confined, the Supreme Court has never overturned the original decision.

In United States v. Reynolds, the Supreme Court barred federal courts from forcing the military to release reports deemed to contain national security secrets. Three widows sought compensation for their spouses' deaths in the crash of an Air Force plane. The spouses worked for RCA. The Air Force claimed that releasing the accident report would expose secret information about its new radio equipment. Although four federal judges upheld a default judgment against the Air Force, the Supreme Court reversed and created the “State Secrets” doctrine barring courts from interfering in government claims of national security. In 2000, the Air Force declassified the crash report which showed their plane had crashed from engine failure. The report had no classified information about the new radios.

Judge Denny Chin dissented in the West Point case, noting that:

Assuming, as we must at this juncture of the case, that the allegations of the amended complaint are true, … Jane Doe was subjected to pervasive and serious sexual harassment, including rape, at … West Point. The harassment resulted from practices and policies that the individual defendants permitted to proliferate and, indeed, implemented or encouraged, depriving Doe of an equal education because of her gender.


I do not agree that the Feres doctrine applies, for in my view Doeʹs injuries did not arise ʺincident to military service.ʺ

Victims of sexual assault also face a long history of attempts to blame them for the crimes committed against them. Too frequently, rapists attempt to escape liability, and government officials deflect responsibility, by claiming that what the victims wore, drank, or said justifies the assaults against them.

Since Doe filed her claims, the Army has stepped up its prosecutions of rapists. This year, it sentenced West Point cadet Jacob Whisenhunt to 21 years in prison for three counts of sexual assault in July 2016. The Army’s report, however, makes no mention of any compensation to the victims.

Just this month, U.S. Secretary of Education Betsy DeVos raised concern for the "dozens upon dozens" of whom she described as male students falsely accused of sexual misconduct because [Obama Administration policies] limited due process for those accused, was confusing, and lowered standards for sexual assault.

Doe’s legal team from Yale University may yet seek rehearing or review by the Supreme Court. In the meantime, young people considering military service may well consider how long traditions and the current state of the law leave them with no remedies in civilian courts. Even if commanders violate the Constitution or make false claims about national security, and even in cases of rape, courts will give no remedy on the ground the survivor chose to serve.

By Richard Renner

This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at

Monday, August 28, 2017

Googling for a Cause of Action

Earlier this month, James Damore, a Google software developer, lost his job after authoring a memo on the reasons for gender discrepancies in the information technology sector. In his memo, Damore argued that women are not as biologically suited to be software engineers as men. Damore also argued that the policies and programs implemented by Google to encourage gender and racial diversity highlight the company’s “politically correct” ideology and create an oppressive environment for employees with more conservative leanings. Damore shared his memo internally with his coworkers through an online collaborative workspace, but eventually the memo made it into the hands of reporters and it became a national news story. Within days, Google fired Damore for violating the company’s code of conduct by perpetuating gender stereotypes with his memo. After his termination, Damore stated that he was “exploring all possible legal remedies” and retained a lawyer.

So, the questions arise, what are Google’s legal liabilities in this situation and what federal causes of action might be available to Damore?

At-Will Employment

The first thing to realize is that most workers in the United States, including Damore, are “at-will employees.” At-will employees can be fired for any reason, no reason, a bad reason, or a made-up reason without any legal repercussions, unless that reason is prohibited by a specific law. For example, it is unlawful for most employers to fire an employee because of that employee’s race, gender, or disability. Unionized employees who work under collective bargaining agreements and most government workers are not at-will employees; these groups have extra rights when it comes to job termination. Thus, absent a legal, contractual, or constitutional violation, Damore would not likely have a claim against Google for firing him.

First Amendment

When a person says Americans have the right to free speech, they are referring to the protections codified in the First Amendment of the United States Constitution. That Amendment states “Congress shall make no law . . . abridging the freedom of speech.” In short, the federal government – and State governments, according to the Supreme Court – is not allowed to tell you what you can and cannot say or penalize you for speaking. However, private companies, like Google, are not bound by the Amendment. Google is free to terminate employees for the views they express, even if those views are intrinsically political, like Damore’s, without exposing itself to a lawsuit brought under the First Amendment.


Section 7 of the National Labor Relations Act (“NLRA”) provides, in part, “employees shall have the right... to engage in other concerted activities for the purpose of... mutual aid or protection.” The term “concerted activity” is interpreted very broadly. The National Labor Relations Board, the independent government agency that enforces the NLRA, describes it as “your right to band together with coworkers to improve your lives at work.” Many people mistakenly believe the NLRA only protects employees who are members of unions, but, actually, most private sector employees are covered by the Act. Therefore, it is a violation of this federal law for an employer to fire an employee for complaining to other employees about their working conditions.

Damore writes in his memo, “I’ve gotten many personal messages from fellow Googlers expressing their gratitude for bringing up these very important issues which they agree with but would never have the courage to say or defend because of our shaming culture and the possibility of being fired. This needs to change.” He goes on to say, “open and honest discussion with those who disagree can highlight our blind spots and help us grow, which is why I wrote this document.”

It appears that with this memo – uploaded to Google’s document collaboration tool and discussed on internal company message boards – Damore is expressing his view of a working environment that is hostile to those that believe that Google’s programs and policies regarding diversity are discriminatory and frivolous. That could be considered concerted activity by the NLRB. Indeed, in the 2015 case of Cooper Tire & Rubber Co. v. United Steel, et al., an NLRB Administrative Law Judge held that an employer may not fire an employee for racist taunts directed at a replacement worker from a picket line. Of course, Damore’s situation is different in that he was not involved in a picket line, an unquestionably concerted activity “where a certain degree of confrontation is expected” when he made his comments. However, a former chair of the NLRB under President Obama, Wilma Liebman, has said of Damore’s Section 7 claims: “I think it’s an open question. It’s not a slam dunk either way.”

Title VII

At its most basic premise, Title VII of the Civil Rights Act of 1964 (“Title VII”) made it unlawful for an employer to discriminate against an employee on the basis of his or her race, color, religion, sex, or national origin. Additionally, the law provides, “It shall be an unlawful employment practice for an employer to discriminate against any of his employees... because he has opposed any practice made an unlawful employment practice.”

Throughout his memo, Damore refers to Google’s “discriminatory practices” such as “programs, mentoring, and classes only for people with certain gender or race.” Damore’s perception that these diversity programs discriminate against him, as a white male, is not uncommon. The Harvard Business Review “found evidence that [a company’s promotion of diversity rhetoric] not only makes white men believe that women and minorities are being treated fairly — whether that’s true or not — it also makes them more likely to believe that they themselves are being treated unfairly.”

In a lawsuit, Damore could argue that he made protected disclosures in his memo about the programs he perceives to be illegal discrimination against men and, therefore, he cannot be fired for his comments. As long as the programs maintained by Google to assist advancement by women and minorities are voluntary and inclusionary, as opposed to exclusionary, they are likely allowed under Title VII. It is not clear, relying on Damore’s memo alone, if Google’s diversity programs actively bar the participation of male and white employees or, instead, if the programs are primarily targeted at minority employees.

Even if Google’s diversity programs are perfectly legal, Damore may still be able to make the argument that he reasonably believed the programs were unlawful and, therefore, his termination violated Title VII. The Supreme Court has not adopted a test to determine whether an employee’s opposition to discrimination must be reasonable; therefore, the outcome of the analysis is dependent on the judicial circuit in which the case is brought.


Damore’s situation leads to the question: is Google — legally — stuck between a rock and a hard place? The company’s termination of Damore for his memo exposes Google to legal action from him; however, if it had not fired him, it would have exposed itself to liability from the other direction – Damore’s female coworkers.

Prior to the release of Damore’s memo, Google was already in the midst of a regulatory battle regarding its alleged systemic gender-based pay disparities and the poor treatment of women in Silicon Valley has been consistently in the news.

If Google had concluded that Damore’s memo was protected by either Title VII or the NLRA, and, therefore, they could not legally fire him, female employees bringing sex discrimination complaints could point to Google’s inaction regarding the memo and argue that the company supports the perpetuation of these sexist points of view because it did not make any efforts to discipline Damore for openly expressing them.

In conclusion, Google may have picked the best option from a menu of bad legal choices when it decided to fire James Damore. It will be interesting to watch how this situation plays out.

Written by Sarah Martin.

This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at

Thursday, August 17, 2017

Perry saves the “mixed case”

When Anthony Perry began working for the U.S. Census Bureau in Suitland, Maryland, in 1982, he never could have imagined that it would lead to a landmark victory for federal employees in the U.S. Supreme Court.

After thirty years of faithful service to the Bureau, Perry developed osteoarthritis. While his supervisor allowed him to take breaks during the day and make up the missed time after hours, Perry filed a series of Equal Employment Opportunity (EEO) complaints alleging discrimination based on race and age.

On June 7, 2011, Bureau managers gave Perry a Notice of Proposed Removal. The Notice alleged that Perry had been absent during regular working hours and paid for hours he had not worked. Perry contested the charges and pointed to the informal accommodation that his supervisor had provided and to his unblemished disciplinary record.

In August 2011, Perry and the Bureau entered into a settlement agreement that required him to serve a 30-day suspension, retire no later than September 4, 2012, and forfeit his discrimination claims against the agency.

After Perry served his 30-day suspension and his retirement took effect, he filed a pro se appeal with the Merit Systems Protection Board (MSPB). An administrative judge (AJ) ordered him to show cause why the challenge should not be dismissed for “lack of jurisdiction.” “Specifically, resignations and retirements are presumed to be voluntary, and voluntary actions are not appealable to the Board,” and “the Board cannot review the same claims over which you entered into a settlement agreement with the agency[.]” Perry responded that the settlement agreement had been coerced; therefore, the subsequent major adverse employment actions were involuntary and he could appeal them under the Civil Service Reform Act (CSRA).

Without holding a hearing, the AJ dismissed Perry’s appeal for “lack of jurisdiction.” In particular, the AJ decided that both the 30-day suspension and retirement were voluntary because they resulted from a voluntary settlement agreement. Perry petitioned the full MSPB for review.

The Board granted Perry’s petition and remanded the case back to the AJ. The Board concluded that Perry had “made a nonfrivolous allegation of involuntariness sufficient to warrant a jurisdictional hearing.”

On remand, the AJ held the required hearing and concluded that Perry “failed to prove that he was coerced or detrimentally relied on misinformation when he agreed to settle his appeals.” Accordingly, the AJ once again dismissed the appeal for “lack of jurisdiction.” This time the Board affirmed the dismissal.

The Board’s decision included a notice that stated in part: “You have the right to request review of this final decision by the United States Court of Appeals for the Federal Circuit.” Perry, still without legal representation, filed a petition for review in the U.S. Court of Appeals for the D.C. Circuit. That court promptly issued an order directing Perry to “show cause why this petition should not be dismissed for lack of jurisdiction or transferred to the United States Court of Appeals for the Federal Circuit.” The court also appointed a law firm to submit a brief as amicus curiae.

After receiving briefs, the D.C. Circuit decided in 2015 that since the MSPB found it lacked jurisdiction, and it never reached the merits of the discrimination claims, it would transfer the case to the Federal Circuit. Perry, now represented by an attorney, appealed to the Supreme Court.

In 2012, the Supreme Court held in Kloeckner v. Solis that when the MSPB dismissed a mixed case on procedural grounds, the employee could bring her case to the federal district court for both the discrimination and the civil service issues. In 2016, the Supreme Court agreed to hear Perry’s case to decide if the same rule should apply to “jurisdictional” dismissals by the MSPB.

The oral argument at the Supreme Court was notable in part because it was the first case heard by Justice Neil Gorsuch. He questioned Perry’s attorney about how unfair it was that employees could get “de novo” review of the civil service claims in district court, but not in the Federal Circuit. He asked Perry’s attorney to put “aside Kloeckner” suggesting that, following precedent would “just … continue to make it up.” He asked if Perry’s claims could be bifurcated so that the Federal Circuit could hear at least the civil service claim. Even the government’s attorney had to agree that the mixed case statute is “not elegantly drafted.”

Justice Alito provoked laughter by asking, “who wrote this statute? Somebody who … takes pleasure out of pulling the wings off flies?”

In June 2017, the Supreme Court issued its decision. Writing for the majority of seven justices, Justice Ginsberg explained that, “we are mindful that review rights should be read not to protract proceedings, increase costs, and stymie employees, but to secure expeditious resolution of the claims employees present.” She noted how most federal employees make their appeals to the MSPB without representation by a lawyer.

“An appeal to the MSPB, however, may also complain of adverse action taken, in whole or in part, because of discrimination prohibited by another federal statute[.]” The Court cited the mixed case statute, but missed citing 5 USC § 7701(c)(2)(C) which says, “the agency’s decision may not be sustained ... if the employee … — (C) shows that the decision was not in accordance with law.” If an employee is fired (or suffers another adverse action directly appealable to the MSPB), that employee can prevail by showing that the action violates any law at all.

The Court recalled, as it did in the Kloeckner case, that, “the CSRA provides diverse procedural routes for an employee’s pursuit of a mixed case.” The employee “may first file a discrimination complaint with the agency itself,” in the agency’s equal employment opportunity (EEO) office. Indeed, this is one of the oft misunderstood aspects of the mixed case. If an employee chooses to raise a discrimination claim in a mixed case using any administrative route, that employee preserves all the available civil service and discrimination claims for de novo consideration by a district court.

In the end, the majority held that Congress made no distinction between MSPB dismissals on procedural grounds and those on the merits. The actual legal authorization to decide a case arises from the employee’s allegations, not from the MSPB’s finding of “jurisdiction.” Thus, the Supreme Court directed the D.C. Circuit to transfer Perry’s case to district court so that all of his claims could be considered together.

Justices Gorsuch and Thomas dissented. Writing his first Supreme Court dissent, Justice Gorsuch said that Perry must appeal his civil service claims to the Federal Circuit, and pursue his discrimination claims through the normal agency process and to district court if Perry so chooses. In essence, Perry’s claims would no longer be “mixed.” If the statute needs fixing, Justice Gorsuch says, only Congress can do that.

The majority opinion correctly responded that the statute does not provide for such claim splitting. To the contrary, Congress specifically directed that mixed cases can go to the district court. The district court’s jurisdiction arises from the allegations made to the MSPB, and the statute places no conditions on the employee’s ability to bring discrimination claims to district court.

The Supreme Court’s decision in Perry helpfully clarifies the law and simplifies the procedure for federal employees. It makes clear that the MSPB’s jurisdiction arises from the employee’s allegations and not from any findings by the AJ. The MSPB will need to re-write its boilerplate language for jurisdictional orders to reflect this law of the land.

However, the Perry decision does not resolve all the outstanding issues about mixed cases. Does a discrimination claim create a “mixed case” – appealable directly to district court – when the Civil Service Reform Act claim arises under the Whistleblower Protection Act (which is part of the CSRA)? The Tenth Circuit said yes in Wells v. Shalala. The Ninth Circuit thereafter said no in Kerr v. Jewell. Kerr appealed to the Supreme Court which earlier this year declined to hear her appeal.

By Richard Renner

This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at