Friday, January 11, 2013

Does a Request for Accommodation Constitute Protected Activity?


Recently, Judge Colleen Kollar-Kotelly of the United States District Court for the District of Columbia, in Payne v. Salazar, No. 1:08-00164, 2012 U.S. Dist. LEXIS 151095 at *23-24 n.7 (D.D.C. Oct. 21, 2012) held that a request that one’s religious convictions be accommodated (e.g. a Seventh Day Adventist not be compelled to work on the Sabbath) does not constitute protected activity under Title VII.  In doing so, the Court rejected EEOC’s long-standing interpretation of the statute.  See, EEOC Compl. Man. Section 12 – Religion (2008)(stating that, “EEOC has taken the position that requesting religious accommodation is protected activity.”) (available at visited 01/11/13); EEOC Compl. Man. Section 8 – Retaliation (1998) (stating that under section 503 of the Americans with Disabilities Act a request for a reasonable accommodation is a protected activity and explaining that by the same rationale requesting a religious accommodation is also a protected activity under Title VII)(available at (last visited 01/09/13).

The Court did note that several courts have held that requests for accommodations in disability cases under the ADA and the Rehabilitation Act have been found to be protected activity.  Indeed, there are decisions from other judges of the same court so holding.  See, Weng v. Solis, 842 F. Supp. 2d 147 (D.D.C. Feb. 6, 2012) (where, visiting Judge Barbara Rothstein implicitly held that accommodation requests were protected activity under the Rehabilitation Act.); Zeigler v. Potter, 641 F.Supp 2d 25 (D.D.C. August 13, 2009)(Agreeing with the 7th Circuit’s finding in Cassimy v. Bd. of Ed., 461 F. 3d 932 (7th Cir. 2006) that a good faith request for a reasonable accommodation under the ADA is a protected activity even if the plaintiff is found not to be disabled.); DuBerry v. District of Columbia, 582 F. Supp. 2d 27 (D.D.C. 2008) (where Judge Rosemary Collyer held that a request for accommodation of a disability is a “protected activity” within the meaning of the ADA).  See also, E.E.O.C. v. Chevron Phillips Chem. Co., 5th Cir. 2009)(noting, “Every appeals court to consider the issue has concluded  that [requesting an accommodation] is protected as long as the employee had the reasonable belief that he was covered by the ADA.); See also Wright v. COMPUSA, Inc., 352 F.3d 472 (1st Cir. 2003) (holding that requesting a reasonable accommodation is a protected activity under § 12203(a) of the ADA.); Butler v. Exxon Mobil Corp., 838 F. Supp. 2d 473 (M.D. La., Jan., 25, 2011)(holding, employee’s request for accommodation when he had a reasonable belief he was disabled under the ADA constituted protected activity.); Mayer v. Future Elect. GP Corp., 2008 WL 4603302 (N.D.Miss. Oct. 15, 2008)(finding, “[plaintiff] presented sufficient evidence to create a genuine issue of fact that [defendant] retaliated against her for engaging in a protected activity (here, requesting an accommodation).”); Connolly v. Mitsui O.S.K. Lines, (Am.) Inc., 2007 U.S. Dist. Lexis 86490 (D.D.N.J. Nov. 21, 2007)(finding that the plaintiff plead sufficient facts to allow her retaliation claim under the ADA, due to a request for accommodation, to go forward.)  In the religious accommodation case, Judge Kollar-Kotelly did not distinguish the holdings in the disability accommodations cases from her holding in Payne.  

Some federal courts have assumed that requests for religious accommodation are protected activity.  See, e.g. Porter v. City of Chicago, 2012 U.S. App. LEXIS 23041 at *28 (7th Cir. 2012) (stating in a case about religious accommodations, “[w]e assume, as the parties do, that Porter engaged in statutorily protected activity, including her request to have Sundays off . . . [and] her request for a schedule adjustment to attend ministry classes . . .); Ollis v. Hearthstone Homes, Inc., 495 F.3d 570 (8th Cir. 2007)(employee’s complaints that attending spiritual meetings conflicted with his religious beliefs constituted protected activity).; Virts v. Consolidated Freightways Corp. of Del., 285 F.3d 508 (6th Cir. 2002) (employer conceded prima facie case of retaliation in religious accommodation case where plaintiff’s refusal to work without accommodation was deemed a voluntary resignation by management).  Other courts have gone a step further and held that requesting religious accommodations is a protected activity.  See, M.C.A.D v. Kelly Honda, Docket NO. 06-BEM-01199 (Mass. Comm’n Against Discrim. November, 2011)(where the state law had almost identical retaliation language as Title VII and was analyzed under the McDonnell Douglas burden shifting framework, the court held that employee’s opposition to removing head covering and request to wear it constituted protected activity)(available at:
/MCAD%20&%20Shahadat%20Hussain%20Suhrawardy%20vs%20Kelly%20Honda%20&%20Kelly%20Automotive%20Group%20Inc.pdf)(last visited 1/11/13).

In Weixel v. Bd. of Education of New York, 287 F.3d 138, 149 (2d Cir. 2002), the Second Circuit held that a request for reasonable accommodation of a disability under the Rehabilitation Act constituted protected activity.  In Soileau v. Guilford of Maine, Inc., 105 F.3d 12 (1st Cir. 1997), the First Circuit similarly found that requesting a reasonable accommodation under § 12203(a) of the ADA was a protected activity.  The Soileau court explains, “[i]t would seem anomalous, however, to think Congress intended no retaliation protection for employees who request an accommodation unless they also file a formal charge.”  Soileau, 105 F.3d at 16.   

The language of 42 U.S.C. § 12203(a) states, “No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this Act or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this Act.”  Similarly, Title VII makes it unlawful for an employer to discriminate against an employee who, “has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.”  42 U.S.C. § 2000e-3(a)(2012).  If under the ADA it, “would seem anomalous . . . to think Congress intended no retaliation protection for employees who request an accommodation unless they also file a formal charge,” Soileau, 105 F.3d at 16, so too is “anomalous” that the same should not apply to requests for religious accommodations under Title VII.  

This issue is currently on appeal to the Court of  Appeals for the D.C. Circuit in Solomon v. Vilsack, No. 12-5123 (D.C. Cir. April 19, 2012) (appeal from Solomon v. Vilsack, 845 F. Supp. 2d 61 (D.D.C. 2012)). 

For additional information:
  • The Center For Social Gerontology, Inc., Retaliation by Employers for Requesting Accommodation Under the ADA (2001) available at:

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Supervisors Can Be Held Individually Liable for Wrongful Termination in Virginia


In VanBuren v. Grubb, 733 S.E.2d 919 (Va. 2012), the Virginia Supreme Court held, in a 4-3 decision, that there can be individual liability in public policy wrongful termination cases.  In VanBuren, plaintiff filed suit for, among other things, wrongful discharge in the federal district court for the Western District of Virginia.  Plaintiff named both her former employer as well as her former supervisor, Dr. Grubb, in his individual capacity, as defendants.  Plaintiff alleged that she was sexually harassed by Dr. Grubb, and ultimately terminated when she refused to leave her husband for Dr. Grubb.  The district court dismissed the wrongful discharge claim as to Dr. Grubb.  On appeal, the Fourth Circuit certified the question as to whether a wrongful discharge claim was cognizable against an individual supervisor to the Virginia Supreme Court, and the Supreme Court accepted. 
The majority began by repeatedly recognizing that the wrongful discharge for violation of public policy is a “narrow” exception to the long-recognized doctrine of employment at-will.  However, finding that plaintiff was discharged for her refusal to “engage in the criminal acts of adultery and lewd and lascivious cohabitation[,]” the Court determined that this case fell into just such an exception.  See Mitchem v. Counts, 523 S.E.2d 246, 252 (2000) (discharge based on refusal to engage in fornication and lewd and lascivious cohabitation was against public policy).  

The majority went on to find that permitting suits against individual supervisors for wrongful termination was “consistent with the  Court’s established case law regarding agency relationships[,]” explaining that “[i]t has long been settled in Virginia that employers and employees are deemed to be jointly liable and jointly suable for the employee’s wrongful acts.”  (internal quotations omitted).  Noting that it is the wrongful motivation held by the supervisor – not the act of discharge itself – which creates liability under this theory, the majority reasoned that individual liability best serves the deterrent purpose of the wrongful discharge tort.  

The three-justice dissent endorsed the reasoning employed by the district court, and would have held that “when the employee-employer relationship has been wrongfully terminated, liability to the wronged employee can only rest with the other party in that relationship, the employer.”  The dissent noted that only the employer possesses the power to terminate an employee and that an individual manager or supervisor who carries out the discharge acts only in a representative capacity for the employer.  Accordingly, such an individual cannot be personally liable for the discharge.  Finally, the dissent reasoned that “[b]ecause the legal duty at issue in a claim for wrongful discharge does not flow from one employee to another employee, it is irrelevant if a manager or supervisor also engaged in the conduct that violated public policy.”

The state courts are deeply divided on this issue.  Some Courts have reached conclusions consistent with those of the Virginia Supreme Court.  See, e.g., Myers v. Alutiiq Int'l Solutions, LLC, 811 F. Supp. 2d 261, 269 (D.D.C. 2011) (predicting that the “D.C. Court of Appeals would allow claims against individual supervisors for wrongful discharge” where it was shown that their conduct was sufficiently wrongful because “individuals are liable for their own torts, even as agents acting on behalf of their employers”); Higgins v. Assmann Elecs., Inc., 217 Ariz. 289, 173 P.3d 453, 458 (Ariz. Ct. App. 2007) (holding that, under the Arizona Employment Protection Act “[c]orporate officers are liable to those harmed by such officer[s]” when their “acts constitut[e] the wrongful termination” of an employee); Jasper v. H. Nizam, Inc., 764 N.W.2d 751, 776 (Iowa 2009) (holding that an individual corporate officer can be held liable for wrongful discharge because the tort “does not impose liability for the discharge from employment, but the wrongful reasons motivating the discharge”); Ballinger v. Delaware River Port Auth., 172 N.J. 586, 800 A.2d 97, 110 (N.J. 2002) (holding that “an individual who personally participates in the tort of wrongful discharge may be held individually liable” because “[a]n agent who does an act otherwise a tort is not relieved from liability by the fact that he acted at the command of the principal or on account of the principal”) (alteration in original) (internal quotation marks and citation omitted); Kamensky v. Roemer Inc., 1 Pa. D. & C. 4th 497, 499 (Pa. 1988) (holding that “an officer of the corporation who takes part in the commission of the tort by the corporation is personally liable therefor[]”) (internal quotation marks and citation omitted); Harless v. First Nat'l Bank in Fairmont, 169 W. Va. 673, 289 S.E.2d 692, 698, 699 (W. Va. 1982) (holding that liability on the part of the employer “does not mean that another employee who has been the principal protagonist in obtaining the employee's discharge would not also be liable,” because “an agent or employee can be held personally liable for his own torts against third parties”).  

Other courts, however, have held, contrary to the Virginia Supreme Court and the decisions cited above, that there is no individual liability for the tort of wrongful discharge.  See, e.g., Miklosy v. Regents of Univ. of California, 44 Cal. 4th 876, 80 Cal. Rptr. 3d 690, 188 P.3d 629, 645 (Cal. 2008) (holding that the agency relationship shields employees from tort liability for wrongful discharge); Buckner v. Atlantic Plant Maintenance Co., 182 Ill. 2d 12, 694 N.E.2d 565, 569, 230 Ill. Dec. 596 (Ill. 1998) (Supreme Court of Illinois stated that, “[l]ogically speaking, only ‘the employer’ has the power to hire or fire an employee.”); Rebarchek v. Farmers Coop. Elevator & Mercantile Assoc., 272 Kan. 546, 35 P.3d 892, 903-04 (Kan. 2001) (quoting extensively from Buckner and adopting its holding); Schram v. Albertson's Inc., 146 Ore. App. 415, 934 P.2d 483 (Or. Ct. App. 1997). (“[T]orts…are based on the violations of duties owed by one party to another other than those created by contract” and “the tort of wrongful discharge arises when an employer violates a duty imposed by an established public policy. The employment relationship is a necessary element of the tort and establishes the duty of the employer on behalf of the employee not to violate an established public policy. That relationship does not exist among fellow employees.”); Physio GP, Inc. v. Naifeh, 306 S.W.3d 886 (Tex. App. 2010) (rejecting the application of agency principles and recognizing that “[t]he employment relationship is the source of the duty in wrongful discharge torts” and that relationship “exists only between the employer and employee, not between two employees, even when one of those employees is a supervisor or even the owner.”)

Comments on the implications of this decision after the jump.

NLRB Requires Tax Gross-Up Relief in Back-Pay Cases

A unanimous, three-member decision by the NLRB in Latino Express, Inc. 359 NLRB No. 44, 2012 NLRB LEXIS 844 (Dec. 18, 2012), in a supplemental decision, held that a backpay award for income that would have been earned in a year(s) earlier than the year of payment must compensate the charging party for excess income tax liability and must require the employer to report a backpay allocation to the social security administration.  This landmark decision and the follow-on work by the board’s general counsel provide a road-map not only for counsel representing clients before the board, but also for counsel in discrimination and labor standards cases where courts order backpay relief or the parties settle backpay claims.  Moreover, as the decision construes the National Labor Relations Act, which was the model, in part, for Title VII, the board’s rationale may influence courts to recognize the propriety of “tax bump” or “tax gross-up” relief in discrimination and labor standards cases.  Indeed, it might even influence courts like the D.C. Circuit to reverse earlier holdings that, for example, Title VII does not permit tax bump/gross-up relief.  See, e.g. Fogg v. Gonzales, 492 F.3d 447 (D.C. Cir. 2007).

The Board’s decision requires that, where receipt of a lump-sum backpay award covering more than one calendar year pushes the recipient into a higher tax bracket, the affected employee should be compensated for the excess taxes.  The Board, in part, relies on those Federal Court decisions that, unlike the D.C. Circuit, have recognized the propriety of tax bump/gross-up relief.  See Sears v. Atchison, Topeka & Santa Fe Railway Co., 749 F.2d 1451, 1456 (10th Cir. 1984), cert. denied 471 U.S. 1099, 105 S. Ct. 2322, 85 L. Ed. 2d 840 (1985) (Title VII of the Civil Rights Act of 1964); O'Neill v. Sears, Roebuck & Co., 108 F.Supp.2d 443, 447 (E.D. Pa. 2000) (Age Discrimination in Employment Act); Powell v. North Arkansas College, 08-CV-3042, 2009 U.S. Dist. LEXIS 59773, 2009 WL 1904156 at *3 (W.D. Ark. 2009) (Family and Medical Leave Act).  

In addition, the board relies on an EEOC and a DOL administrative review board decision.  Van Hoose v. Pirie, No. 94-60050-N01, 2001 WL 991925 at *3 (EEOC Aug. 22, 2001); Doyle v. Hydro Nuclear Services, No. 99-041, 2000 WL 694384 at *8-10 (DOL Admin. Rev. Bd. May 17, 2000), revd. on other grounds sub nom. Doyle v. Secretary of Labor, 285 F.3d 243 (3d Cir. 2002), cert. denied 537 U.S. 1066, 123 S. Ct. 620, 154 L. Ed. 2d 555 (2002).  

The Board directs the General Counsel to prove and quantify the extent of any adverse tax consequences resulting from a lump-sum backpay award, requiring that the amount sought be specifically pled in the compliance specification.  The Board requires the general counsel to support the requested amount with evidence and a reasonable calculation.  

The Board, in noting that employers must withhold social security taxes from a discriminatee’s backpay award and remit that money to the government, together with the social security tax owed by the employer, noted an exception to this general rule.  Backpay owed by an employer that has never been an employer of the discriminate is not considered to be wages for FICA purposes, so there is no withholding obligation, and no employer contribution is payable.  Latino Express, 359 NLRB No. 44, 5 n.10.  Thus, for example, in failure to hire cases, there is no withholding obligation and no employer contribution requirement.  

Further, the Board required that backpay must be attributed to the proper periods for social security purposes.  If the backpay covers multiple years and is posted to the employee’s social security records in the year it is received, as the Board points out, there are several adverse consequences.  First, the individual may be deprived of social security credits and, accordingly, not have sufficient credits to cover for old-age social security benefits.  Second, when the contribution and benefit base is exceeded, the employer and employee do not pay tax on the excess, reducing the amount paid on the employee’s behalf.  Consequently, the employee’s eventual monthly benefit will be reduced.  Third, as social security benefits are calculated using a progressive formula, the rate of return diminishes at higher annual incomes, consequently a retiring backpay recipient can receive a smaller benefit when a multi-year award is posted to one year rather than being allocated to the appropriate periods, even if social security taxes were paid on the entire amount. 

Because of these potential adverse consequences, the Board held that it “shall now routinely require the filing of a report with the SSA allocating backpay awards to the appropriate calendar quarters.”  The Board requested that the General Counsel develop a standard form that will “simply and efficiently elicit the information the SSA requires…”

The Board’s requirements regarding the filing of a report with the Social Security Administration allocating backpay to appropriate calendar quarters would seemingly be good practice for parties in negotiating settlements of backpay claims.  In addition, seemingly the federal district courts and state courts should be entering remediation orders that include a requirement of such a filing.  

A sample calculation of a gross-up, as well as a selection of scholarly articles on the subject, follows after the jump.