Category Archives: Title VII of the Civil Rights Act of 1964

Hostile work environment, Sex Discrimination, Sexual harassment, Title VII of the Civil Rights Act of 1964, WV Human Rights Act

The Evolving Standard for Hostile Work Environment Claims

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When employ­ees say their work­place is “tox­ic” or “hos­tile,” they’re often using the term loosely—maybe it’s office dra­ma, an annoy­ing boss, or just a gen­er­al­ly tense atmos­phere. But in employ­ment law, a hos­tile work envi­ron­ment has a very spe­cif­ic legal mean­ing. And as courts have refined the stan­dard over the years, the line between what’s action­able and what’s just unpleas­ant has got­ten sharp­er (but not nec­es­sar­i­ly clearer).

For both employ­ers and employ­ees in West Vir­ginia, it’s impor­tant to under­stand what actu­al­ly qual­i­fies as a hos­tile work envi­ron­ment under the law, how these claims are proven, and what the poten­tial pit­falls are in lit­i­ga­tion. Spoil­er alert: just being a jerk isn’t nec­es­sar­i­ly illegal.

What Is a Hostile Work Environment?

Under both fed­er­al law and West Vir­ginia law, a hos­tile work envi­ron­ment occurs when an employ­ee is sub­ject­ed to dis­crim­i­na­to­ry harass­ment that is severe or per­va­sive enough to alter the con­di­tions of employ­ment and cre­ate an abu­sive work­ing environment.

Con­tin­ue read­ing The Evolv­ing Stan­dard for Hos­tile Work Envi­ron­ment Claims →
Contract Issues, Employee handbook, Family and Medical Leave Act (FMLA), Harless wrongful discharge, Title VII of the Civil Rights Act of 1964, Whitle blower claims (including Harless), Worker's compensation retaliation, WV Human Rights Act, WV Human Rights Commission

“At-Will” Employment in West Virginia: What It Really Means (and What It Doesn’t)

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Most folks in West Virginia—employers and employ­ees alike—have heard the phrase “at-will employ­ment.” It gets tossed around a lot, espe­cial­ly when someone’s been fired and is try­ing to fig­ure out if it was legal. But like a lot of legal phras­es, “at-will” means more (and some­times less) than peo­ple assume.

In this arti­cle, we’re going to take a clear-eyed look at what at-will employ­ment actu­al­ly means under West Vir­ginia law, the key excep­tions to it, and how courts treat wrong­ful dis­charge claims. Whether you’re run­ning a busi­ness or advis­ing a work­er, under­stand­ing these rules is cru­cial to avoid­ing (or pur­su­ing) a lawsuit.

The Basic Rule: At-Will Employment Means Either Side Can Walk

The gen­er­al rule in West Virginia—and most oth­er states—is that employ­ment is pre­sumed to be at-will. That means an employ­er can ter­mi­nate an employ­ee for any rea­son, no rea­son, or even a bad rea­son, just not an ille­gal one. Sim­i­lar­ly, employ­ees can quit at any time with­out notice or explanation.

This doc­trine has been around for­ev­er. It’s ground­ed in com­mon law prin­ci­ples and rein­forced by state court deci­sions. But, as always, the dev­il is in the details.

Con­tin­ue read­ing “At-Will” Employ­ment in West Vir­ginia: What It Real­ly Means (and What It Doesn’t) →
Age Discrimination, Americans with Disabilities Act, Equal Employment Opportunity Commission, Title VII of the Civil Rights Act of 1964, WV Human Rights Act, WV Human Rights Commission

The Roles of the EEOC and the West Virginia Human Rights Commission in Workplace Discrimination Claims

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Work­place dis­crim­i­na­tion is a seri­ous issue, and employ­ees who believe they’ve been treat­ed unfair­ly often turn to the Equal Employ­ment Oppor­tu­ni­ty Com­mis­sion (“EEOC”) or the West Vir­ginia Human Rights Com­mis­sion (“HRC”) for help. But what exact­ly do the EEOC and HRC do, and how does the com­plaint process work? Whether you’re an employ­er try­ing to stay com­pli­ant or an employ­ee con­sid­er­ing fil­ing a claim, it is impor­tant to under­stand the EEOC’s and HRC’s roles.

What Is the EEOC?

The EEOC is the fed­er­al agency respon­si­ble for enforc­ing anti-dis­crim­i­na­tion laws in the work­place. It inves­ti­gates com­plaints of dis­crim­i­na­tion based on race, sex, age, dis­abil­i­ty, nation­al ori­gin, reli­gion, and oth­er pro­tect­ed char­ac­ter­is­tics under laws like:

  • Title VII of the Civ­il Rights Act of 1964 (42 U.S.C. § 2000e‑2)
  • The Age Dis­crim­i­na­tion in Employ­ment Act (ADEA) (29 U.S.C. § 623)
  • The Amer­i­cans with Dis­abil­i­ties Act (ADA) (42 U.S.C. § 12112)

The agency also enforces laws pro­hibit­ing retal­i­a­tion, mean­ing an employ­er can’t pun­ish an employ­ee for fil­ing a com­plaint or par­tic­i­pat­ing in an investigation.

Con­tin­ue read­ing The Roles of the EEOC and the West Vir­ginia Human Rights Com­mis­sion in Work­place Dis­crim­i­na­tion Claims →
Pregnancy discrimination, Sex Discrimination, Sexual harassment, Title VII of the Civil Rights Act of 1964, WV Human Rights Act

Workplace Harassment: What Employers and Employees Need to Know

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Work­place harass­ment is a seri­ous issue that can lead to legal trou­ble for employ­ers and cre­ate a tox­ic work envi­ron­ment for employ­ees. While most peo­ple think of harass­ment in terms of sex­u­al mis­con­duct, the law cov­ers a much broad­er range of behav­iors. Under­stand­ing what con­sti­tutes work­place harass­ment and how to han­dle it is cru­cial for both employ­ers and employees.

What Is Workplace Harassment?

Harass­ment is defined as unwel­come con­duct based on race, col­or, reli­gion, sex (includ­ing preg­nan­cy, gen­der iden­ti­ty, and sex­u­al ori­en­ta­tion), nation­al ori­gin, age (40 or old­er), dis­abil­i­ty, or genet­ic infor­ma­tion (42 U.S.C. §2000e‑2(a)). It becomes ille­gal when:

  • Endur­ing the offen­sive con­duct becomes a con­di­tion of con­tin­ued employ­ment, or
  • The con­duct is severe or per­va­sive enough to cre­ate a hos­tile work envi­ron­ment (Mer­i­tor Sav. Bank v. Vin­son, 477 U.S. 57 (1986)).

Harass­ment isn’t just about inap­pro­pri­ate jokes or unwant­ed advances—it can include threats, intim­i­da­tion, offen­sive images, or even work­place poli­cies that dis­pro­por­tion­ate­ly affect cer­tain groups.

Con­tin­ue read­ing Work­place Harass­ment: What Employ­ers and Employ­ees Need to Know →
Harless wrongful discharge, Retaliation claims, Title VII of the Civil Rights Act of 1964, Whitle blower claims (including Harless), WV Human Rights Act

Wrongful Termination: What It Is and What It Isn’t

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Los­ing a job is tough, but not every ter­mi­na­tion is ille­gal. The term “wrong­ful ter­mi­na­tion” gets thrown around a lot, but in legal terms, it has a spe­cif­ic mean­ing. Both employ­ers and employ­ees need to under­stand what actu­al­ly qual­i­fies as wrong­ful ter­mi­na­tion under fed­er­al and West Vir­ginia law.

What Is Wrongful Termination?

Wrong­ful ter­mi­na­tion hap­pens when an employ­er fires an employ­ee in vio­la­tion of a law, con­tract, or pub­lic pol­i­cy. This can include:

  • Dis­crim­i­na­tion: Fir­ing some­one based on race, gen­der, age, dis­abil­i­ty, or oth­er pro­tect­ed char­ac­ter­is­tics vio­lates fed­er­al and state anti-dis­crim­i­na­tion laws (42 U.S.C. §2000e‑2; W. Va. Code §16B-17–9).
  • Retal­i­a­tion: Employ­ers can’t fire an employ­ee for report­ing dis­crim­i­na­tion, work­place safe­ty vio­la­tions, or engag­ing in oth­er pro­tect­ed activ­i­ties (42 U.S.C. 2000e‑3(a); W. Va. Code §16B-17–9(7)).
  • Breach of con­tract: If an employ­ee has a writ­ten con­tract or even an implied con­tract promis­ing job secu­ri­ty, a ter­mi­na­tion out­side the agreed terms may be wrong­ful (Cook v. Heck’s Inc., 342 S.E.2d 453 (W. Va. 1986)).
  • Pub­lic pol­i­cy vio­la­tions: Employ­ers can’t fire employ­ees for rea­sons that vio­late pub­lic pol­i­cy, such as refus­ing to engage in ille­gal activ­i­ties (Har­less v. First Nat’l Bank, 246 S.E.2d 270 (W. Va. 1978)).
Con­tin­ue read­ing Wrong­ful Ter­mi­na­tion: What It Is and What It Isn’t →
Hostile work environment, Settlements, Sexual harassment, Taxes, Title VII of the Civil Rights Act of 1964

Congress against sexual harassment, part 1: Taxes

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This arti­cle is the first of 3 parts to cov­er 3 Acts of Con­gress direct­ed at expand­ing the rights of sex­u­al harass­ment and abuse victims. 

The series of 3 federal laws on sexual harassment claims

  • Con­gress first in 2017, with the Tax Cuts and Jobs Act (“TCJA”), lim­it­ed employ­er tax deduc­tions for set­tle­ments of sex­u­al harass­ment and abuse cas­es where the set­tle­ment agree­ment includ­ed a nondis­clo­sure agree­ment. That’s what this arti­cle is about.
  • Con­gress next in March 2022 passed the  End­ing Forced Arbi­tra­tion of Sex­u­al Assault and Harass­ment Act of 2021 which inval­i­dates arbi­tra­tion agree­ments over sex­u­al harass­ment and abuse claims, where the agree­ment is signed before a dis­pute arose. That’s my sec­ond arti­cle in this series.
  • Con­gress then in Decem­ber 2022 passed the Speak Out Act which inval­i­dat­ed nondis­clo­sure and non-dis­par­age­ment agree­ments in sex­u­al harass­ment and abuse claims where the agree­ments were pro­cured before a dis­pute arose. That’s my third arti­cle in this series.
Con­tin­ue read­ing Con­gress against sex­u­al harass­ment, part 1: Tax­es →
Age Discrimination, Americans with Disabilities Act, Equal Employment Opportunity Commission, Pregnancy discrimination, Title VII of the Civil Rights Act of 1964

EEOC has updated its poster that employers must display

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The Unit­ed States Equal Employ­ment Oppor­tu­ni­ty Com­mis­sion (“EEOC”) has updat­ed its poster that employ­ers are required to dis­play in their work­places. Here is the EEOC’s web site on its poster. Here is an inter­net (HTML) copy of the poster. Here is the PDF of the print­able poster for wall dis­play. The name of the poster is “Know Your Rights: Work­place Dis­crim­i­na­tion is Illegal”.

The poster does a good job of edu­cat­ing employ­ees and employ­ers on essen­tial aspects of the fed­er­al anti-dis­crim­i­na­tion laws. It cov­ers what employ­ees are pro­tect­ed, what employ­ers are cov­ered, the pro­tect­ed char­ac­ter­is­tics about which the laws pro­hib­it dis­crim­i­na­tion, the deci­sions and con­duct of the employ­ers that are pro­hib­it­ed, and how an employ­ee can file a charge with the EEOC. In light of new­er tech­nol­o­gy, the poster has a QR code so an employ­ee can user a phone to jump straight to the EEOC’s web site for fil­ing a charge.

Con­tin­ue read­ing EEOC has updat­ed its poster that employ­ers must dis­play →
Age Discrimination, Constructive discharge, Hostile work environment, Result for Employee, Title VII of the Civil Rights Act of 1964

Fifth Circuit applies hostile work environment to age claims

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Courts have some­times ques­tioned whether hos­tile work envi­ron­ment claims apply to all “fla­vors” of dis­crim­i­na­tion. Hos­tile work envi­ron­ment claims most fre­quent­ly arise in claims of sex dis­crim­i­na­tion  and race dis­crim­i­na­tion claims under Title VII of the Civ­il Rights Act of 1964, but age dis­crim­i­na­tion claims under fed­er­al law arise under a dif­fer­ent statute, the Age Dis­crim­i­na­tion in Employ­ment Act of 1967.

The Fifth Cir­cuit direct­ly held recent­ly that hos­tile work envi­ron­ment claims are encom­passed by age dis­crim­i­na­tion claims under the ADEA in Dedi­ol v. Best Chevro­let, Inc., — F.3d — (5th Cir. Sep­tem­ber 12, 2011).

Con­tin­ue read­ing Fifth Cir­cuit applies hos­tile work envi­ron­ment to age claims →
Evidence issues, Medical Industry Litigation, Result for Employee, Title VII of the Civil Rights Act of 1964, US Supreme Court, USERRA

US Supreme Court Rules for Employee on “Cat’s Paw” Theory

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The Unit­ed States Supreme Court recent­ly unan­i­mous­ly issued a major vic­to­ry for employ­ees under “USERRA”, the Uni­formed Ser­vices Employ­ment and Reem­ploy­ment Rights Act of 1994, 38 U.S.C. § 4301 et seq., on the “cat’s paw” the­o­ry in employ­ment dis­crim­i­na­tion claims. The deci­sion was in Staub v. Proc­tor Hos­pi­tal, — U.S. — (March 1, 2011) (opin­ion at Google Schol­ar). Jus­tice Scalia wrote the opin­ion for the unan­i­mous court. Jus­tice Ali­to wrote an opin­ion con­cur­ring in the judg­ment, which Jus­tice Thomas joined. Jus­tice Kagan did not par­tic­i­pate in the decision.

What is the “Cat’s Paw” Scenario?

Drew's kitty-cat, HannaSo, what the heck is the “cat’s paw” the­o­ry? Does it explain why my cat, pic­tured at the left, is star­ing so intent­ly at you?

First, to define “cat’s paw” in a non-legal con­text, the Webster’s Online dic­tio­nary defines a “cat’s paw” as: “A per­son used by anoth­er to gain an end.” The term aris­es out of a fable in which a a shrewd mon­key tricks a cat into pulling roast­ing chest­nuts out of a fire—the cat gets its paw burned, and the mon­key gets the chest­nuts and scam­pers away unhurt.

Con­tin­ue read­ing US Supreme Court Rules for Employ­ee on “Cat’s Paw” The­o­ry →
Hostile work environment, Prompt remedial action, Result for Employee, Sex Discrimination, Sexual harassment, Summary Judgment, Title VII of the Civil Rights Act of 1964

Single act may create hostile work environment, according to Seventh Circuit in Berry v. Chicago Transit Authority

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A few days ago, I post­ed my arti­cle on PAR Elec­tri­cal Con­trac­tors, Inc. v. Bev­elle , in which the West Vir­ginia Supreme Court ruled that a sin­gle episode involv­ing mul­ti­ple uses of the N‑word could cre­ate a racial­ly hos­tile work envi­ron­ment.

The US Court of Appeals for the Sev­enth Cir­cuit just released an opin­ion in Berry v. Chica­go Tran­sit Author­i­ty, 618 F.3d 688 (7th Cir. 2010), which rais­es the sim­i­lar issue: Can a sin­gle instance of sex­u­al harass­ment cre­ate a hos­tile work envi­ron­ment? And the answer was yes, depend­ing on the circumstances.

Ms. Berry is Sexually Harassed in a Single Incident

Cyn­thia Berry was an employ­ee at the Chica­go Tran­sit Author­i­ty. She was on her break and sat at a pic­nic style table with three male co-work­ers. A fourth male co-work­er, Philip Carmichael, had fol­lowed her to the pic­nic area and ordered Ms. Berry to get up from the table. Offend­ed by Mr. Carmichael’s “com­mand­ing tone”, Ms. Berry remained seat­ed. Mr. Carmichael then sat down and “strad­dled the bench” so he was fac­ing one of the male co-work­ers at the pic­nic table, and so that Mr. Carmichael’s back was close to Ms. Berry. The oth­er three male co-work­ers got up from where they were seat­ed at the pic­nic table and moved to the oth­er end of the table. Then:

Berry says Carmichael remained where he was seat­ed and began rub­bing his back against her shoul­der. She jumped up, told him not to rub him­self against her, and sat down next to Hardy at the oth­er end of the table. At this point,
Berry says, Mar­shall began telling her to get up from the table again. Not want­i­ng Mar­shall to think he could order her around, she remained seat­ed, but began rub­bing her tem­ples to com­pose her­self. Accord­ing to Berry, she next felt Carmichael grab­bing her breasts and lift­ing her up from the bench. Hold­ing her in the air, he rubbed her but­tocks against the front of his body—from his chest to his penis—three times before bring­ing her to the ground with force. Berry land­ed off-bal­ance, with only one leg on the ground, and says Carmichael then pushed her into a fence. Upset and want­i­ng to avoid any men, she lay down in a bus for the rest of her shift.

Con­tin­ue read­ing Sin­gle act may cre­ate hos­tile work envi­ron­ment, accord­ing to Sev­enth Cir­cuit in Berry v. Chica­go Tran­sit Author­i­ty →