Virginia Business Law Update : Virginia Business Lawyers & Attorneys : PCT Law Group : Litigation Defenses, Contract Disputes, Business Formation : Northern Virginia, Arlington, Fairfax, Alexandria

Although employers with less than 15 employees are generally not subject to federal discrimination statutes such as Title VII and the Americans with Disabilities Act, Virginia small businesses may still find themselves subject to Virginia’s discrimination laws even if they have fewer than 15 employees.

The Virginia Human Rights Act, which applies to Virginia businesses with more than 5 but less than 15 employees, makes it unlawful for a Virginia employer to discharge an employee on the “basis of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions,” or age (if the employee is over 40). An employee may file a lawsuit against an employer for an alleged violation of the Virginia Human Rights Act in either a general district court or a circuit court, provided the employee files the action within 300 days from the date of termination. (If the employee files a complaint with a human rights agency or commission within 300 days of the termination date, then the employee may bring a court action within 90 days from the date the commission or agency has rendered a final ruling on the complaint.) Employers who are found to have violated the Virginia Human Rights Act may be liable for the employee’s attorneys’ fees and up to 12 months of back pay with interest.

Under the Virginians with Disabilities Act, it is unlawful for employers of all sizes to “discriminate in employment or promotion practices against an otherwise qualified person with a disability solely because of such disability.” To comply with the Virginians with Disabilities Act, an employer must make a “reasonable accommodation to the known physical and mental impairments of an otherwise qualified person with a disability, if necessary to assist such person in performing a particular job, unless the employer can demonstrate that the accommodation would impose an undue burden on the employer.” Under Virginia disability law, whether an accommodation would impose an undue burden on an employer depends on a variety of factors such as potential hardship on the employer, the size of the facility where the employment occurs, the nature and cost of the accommodation, and safety and health considerations. (For Virginia employers with less than 50 employees, any accommodation that would exceed $500 is presumed to impose an undue burden.) Employers who are found to have violated the Virginians with Disabilities Act may be subject to an injunction (to enjoin the violation) or ordered to pay the employee compensatory damages and attorneys’ fees.

Virginia business owners should visit the Virginia Human Rights Council’s website for more information regarding the Virginia Human Rights Act and the Virginia Department of Rehabilitative Services' website for additional information pertaining to the Virginians with Disabilities Act.

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In EEOC v. Fairbrook Medical Clinic, a Title VII sexual harassment case in which the Equal Employment Opportunity Commission (EEOC) brought a lawsuit on behalf of a woman doctor against her former employer, the Fourth Circuit Court of Appeals (4th Circuit) reversed the district court’s grant of summary judgment and remanded the case to the district court for trial. The 4th Circuit determined that the defendant employer’s alleged conduct, if proven true, was severe enough to alter the conditions of the plaintiff employee’s employment and create an abusive work environment.

According to the summary judgment record, the plaintiff employee was subjected to nearly four years of harassment by the owner of a family medical center. Throughout the duration of her tenure with the defendant employer, the owner of the medical center (who was also the plaintiff employee’s immediate supervisor) created a hostile work environment by: routinely making vulgar and sexually graphic comments to the plaintiff employee; repeatedly showing the plaintiff employee an x-ray of his torso, which included an image of what he called “Mr. Happy;” openly discussing with the plaintiff employee his sex life and bragging that his wife was “nice” and “tight” because she had a c-section instead of vaginal delivery; and, telling the plaintiff employee’s patients, in her absence, that they could follow up with the plaintiff “when she returns from screwing.” Additionally, during the plaintiff employee’s pregnancy and continuing after her return from maternity leave, the defendant employer commented on the size of the plaintiff employee’s breasts and offered to help her pump them. After assisting the plaintiff employee with a contract dispute with a vendor, the defendant employer told the plaintiff employee that she owed him and asked, “Are you going to let me help you pump [your breasts]?”

Although the plaintiff employee frequently told the defendant employer that his comments were inappropriate as well as discussed the harassment with the office manager and personnel manager, no investigation or corrective action was taken. Accordingly, the plaintiff employee resigned from the defendant employer and took a new position.

Shortly after resigning, the plaintiff employee filed a charge with the EEOC and the EEOC filed a lawsuit alleging that the plaintiff employee was subjected to a hostile work environment because of her sex in violation of Title VII of the Civil Rights Act of 1964. The district court granted the defendant employer’s motion for summary judgment. On appeal, the 4th Circuit reversed the district court finding that the EEOC had raised a triable issue of fact with respect to each element of its hostile work environment claim.

In reversing the district court, the 4th Circuit focused on whether the offending conduct was sufficiently severe or pervasive to alter the conditions of the plaintiff’s employment and create an abusive work environment. (To be actionable under Title VII, the sexual harassment must be objectively hostile or abusive, and the victim must subjectively perceive it as such. The severity must be judged from the perspective of a reasonable person in the plaintiff’s position and a court must consider all circumstances including the frequency of the conduct, its severity, and whether it unreasonably interferes with an employee’s work performance.)

In considering the defendant employer’s argument that the offensive comments were not made because of the plaintiff’s sex and, instead, were made to men and women alike, the 4th Circuit held that the defendant employer’s use of “sex-specific and derogatory terms” indicated that he intended to demean women and that a reasonable jury could infer that the comments “would not have been made to someone of the same sex.”

The Court also rejected the defendant employer’s argument that, the conduct at issue, when viewed in its social context, was not severe but constituted simple teasing, off-color jokes, and off-hand comments. Based on the record before it, the Court concluded that the conduct was more than general crudity and that the allegations, if proven, show that the defendant employer targeted the plaintiff with highly personalized comments designed to demean and humiliate her. Also, the Court noted that the severity of the defendant employer’s conduct was exacerbated by the fact that he was not only the plaintiff’s immediate supervisor, but also the sole owner of the medical center. As such, he had significant authority over the plaintiff on a daily basis and the ability to influence her career.

Furthermore, the 4th Circuit found unpersuasive the defendant employer’s argument that the conduct was neither frequent nor severe because it did not cause the plaintiff employee to miss work due to stress or otherwise adversely affect her job performance. With respect to the frequency, the Court held that a reasonable person could conclude that comments once or twice a week was a persistent feature of the plaintiff employee’s work environment. Regarding the severity, the Court held that the critical inquiry is not whether the plaintiff employee’s work was impaired, but whether her working conditions were discriminatorily altered. Given that the defendant employer “bombard[ed] her with graphic and highly personalized comments about intimate features of his and her anatomy,” a jury could find that the plaintiff employee’s working conditions were in fact discriminatorily altered. (The Court also noted that the plaintiff employee withstanding the harassment until a new job became available does not, “without more,” defeat the plaintiff employee’s Title VII claim.)

This case, as if further proof is needed, illustrates the advantage that employers have on sexual harassment and discrimination claims in the 4th Circuit (which includes Virginia, Maryland, and North Carolina). Although the 4th Circuit remanded the case to the district court for trial, it is important to note that the district court had initially ruled in the employer’s favor on summary judgment. While Virginia employers should take some comfort with how courts construe Title VII cases, they should also recognize that there are circumstances in which the conduct is so egregious that a court may side with an employee. As such, Virginia businesses must ensure that they have a process in place to address allegations of harassment or discrimination seriously and expeditiously.

 

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