US appeals court adopts lower bar for proving workplace bias claims

By Daniel Wiessner/ Reuters

Aug 21 (Reuters) – A U.S. appeals court has thrown out its unique decades-old precedent that made it more difficult for workers to prove discrimination claims.

The en banc 5th U.S. Circuit Court of Appeals on Friday revived a lawsuit claiming Dallas County, Texas, required female jail guards, but not men, to work at least one day each weekend, overruling its longstanding precedent that federal anti-discrimination law only prohibits bias in “ultimate employment decisions” such as hiring, promotions and setting pay.

That precedent imposed a more strict standard than Title VII of the Civil Rights of Act 1964 itself, which applies to any “terms, conditions, or privileges of employment,” the New Orleans-based court said.

“It is no wonder … that no other court of appeals applies so narrow a concept,” Circuit Judge Don Willett wrote for the 5th Circuit.

Jay Ellwanger, a lawyer for the plaintiffs, said the ruling makes clear that Title VII prohibits all workplace discrimination.

Read the full article from Reuters here.

Female Delta Pilot Advances Sexual Harassment, Reprisal Claims

By Patrick Dorrian/ Bloomberg Law

Delta Air Lines Inc. must face a female pilot’s claims of workplace sexual harassment and that she was retaliated against for complaining about gender bias and harassment, including by being forced to undergo retreatment for alcohol abuse.

The ruling by the US District Court for the District of Minnesota rejected Delta’s contention that the retreatment requirement and other job actions cited by the pilot weren’t adverse for purposes of proving job retaliation, but instead were “beneficial opportunities” permitted by its collective bargaining agreement with her union. Binding case law “indicates otherwise,” the court said.

According to Andrea Ratfield, Delta’s adverse employment actions also included threatening her with termination and suspension, and manipulating her use of leave so it could demote her from captain to first officer. She started drinking to deal with trauma stemming from an incident in which she was raped while attending an aviation event in September 2017, which she reported to her supervisor, Ratfield says.

Ratfield says the sexual harassment she’s experienced in her Delta tenure includes being groped, her training manager asking her on a date, a supervisor calling her “princess,” and lewd hand gestures and comments. A supervisor also allegedly bragged to others that he had seen Ratfield’s breasts while she was breastfeeding, Judge Katherine Menendez said.

Those allegations sufficiently state a hostile work environment claim under the Minnesota Human Rights Act, the judge said. The alleged acts of harassment may be “of the type brushed off by courts in different eras,” but they “comprise the sort of workplace behavior today that reasonable people” likely wouldn’t tolerate, Menendez said.

At least two of the incidents alleged by Ratfield occurred within the time period for suing, the court said.

Her retaliation claims are plausible in light of the alleged close timing—two weeks—between when she reported unfair and discriminatory treatment and when Delta refused to accept secondary test results she received that contradicted an allegedly false positive test that triggered the retreatment requirement, Menendez said.

Ratfield also alleges the retreatment facility was told that she rubbed people at Delta the wrong way and that supervisors further tried to sabotage her retreatment and effort to regain her license to fly by sharing her false positive test with the facility, the judge said.

The court dismissed Ratfield’s gender discrimination claims, including her allegations that Delta accepted secondary test results from male pilots under similar circumstances, but not from her.

Those claims require Ratfield to prove she was qualified to be a pilot and thus implicate terms of her union CBA, Menendez said. They therefore are preempted by the Railway Labor Act. RLA preemption didn’t apply to Ratfield’s retaliation claims because they don’t require proof that Ratfield was qualified for her job, the judge said.

Valli Kane & Vagnini LLP, Nichols Kaster PLLP, and Ellwanger Law LLLP represent Ratfield. Dorsey & Whitney LLP represents Delta.

Read the full article from Bloomberg Law here.

A Win for Delta Captain Andrea Ratfield!

By Sara Hammel

For all those following what’s by far the most-read story in The Landing’s short history, we have a victory to report.

Captain Ratfield will have her day in court. Delta Air Lines’ motion to dismiss was denied on two of three claims. As United States District Judge Katherine Menendez writes in part in her August 11, 2023 decision,

Delta’s motion is denied to the extent it seeks dismissal for failure to state a claim. Ms. Ratfield has plausibly pleaded a claim for retaliation under Title VII and the MHRA and sexual harassment under the MHRA.

Retired Delta Captain Karlene Petitt, who knows more about the airline’s legal strategies than almost anyone, covered that side of things on her blog yesterday:

Delta Air Lines utilizes the Railway Labor Act (RLA) to get away with illegal actions. The airline, under the management of CEO and Board of Directors, Ed Bastian, has a history of retaliation and sexual harassment. They also have a history of filing motions to remove these cases from the courtroom and pull them into the grievance process, of which they own both the arbitrator and the process. 

Congratulations to Capt. Ratfield. The cost of taking a stand is high, and can drain both your finances and your energy. But she’s standing firm, and I look forward to continuing to follow her court case.

Read more at The Landing here.

The Curious Case of Pilot Andrea Ratfield

By Sarah Hammel/The Landing

It’s the summer of 2020, and Delta Air Lines CEO Ed Bastian is drafting an epic memo outlining the company’s commitment to diversity and inclusion.

Bastian promises clarity and transparency throughout the $27.5-billion company’s journey to a less white, less male leadership. He writes that he is “committed to correcting our course as we become a more just, equal and anti-racist company.”

Meanwhile, up north in Delta’s “second home” of Minneapolis, Captain Andrea Ratfield is doing some writing of her own.

It’s June 26, a Friday. At her wits’ end, Ratfield composes an email to high-ranking Delta executives, including Bastian.

A skilled pilot with an exemplary flying record, Ratfield launched her career at Delta as a flight attendant in 1999 before joining the airline’s three percent of women pilots in 2007.

In the summer of 2020, Ratfield is balancing a full life as a commercial airline pilot, activist, mother of two young boys with special needs, and trauma survivor. Making life even more challenging: In the midst of it all, she’s been routinely sexually harassed and assaulted at work. Despite reporting the incidents to her bosses, the male pilot perpetrators are never disciplined.

In her email, Ratfield reminds the executives what she’s been through—likely touching on a few examples in a laundry list that includes a male instructor pilot coming to her hotel room at 2 a.m. for “a drink” and another grabbing her breasts—and outlines again the retaliation she’s endured since reporting the abhorrent behavior.

She closes out the letter with a request that she not be forced to work any longer with the male pilots she says are retaliating against her. She names Captain Scott Monjeau, First Officer Warren Mowry and Captain Ray Baltera.

She hits send.

On July 14, Bastian goes on CNN to tout his airline’s diversity and equity plan.

Delta’s top man talks a good game. The 6’ 3” bespectacled CEO with slicked-back salt-and-pepper hair is duly somber as CNN’s presenter pushes him on the airline’s poor record of minorities in leadership positions.

Bastian admits he’s heard Black employees speak of being left out of the “broader” discussion, and says that “…minorities of all varieties, women, are all really important…[we need to] ensure that we’re doing our very best to promote opportunity and equality.”

He adds, “They’re family. They’re my family…I have a responsibility to do a better job.”

On August 11, 2020, Ed Bastian’s diversity memo blasts out to staff and media worldwide. The subject: Taking Action.

Read the full article from The Landing here.

Major Changes on the Horizon for New York’s Laws on Non-Competition Agreements

By Brendan Klein

Crucial protections for New York workers’ economic freedom are just over the horizon. On June 20th,2023, the State Legislature passed a bill that, if enacted, will ban the use of almost all post-employment non-competition (“non-compete”) agreements in New York. The bill now awaits the decision of Governor Kathy Hochul, who has already expressed her support for similar legislation. If the Governor signs the bill into law, it will become effective 30 days later and would amend New York Labor Law to make any non-compete agreement signed or modified after the bill’s effective date unlawful. 

Specifically, the bill prohibits an employer or its agents from seeking, requiring, demanding, or accepting a non-compete from any covered individual and voids “every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind” created or modified after the law goes into effect. 

The bill defines a non-compete as any agreement or clause between an employer and a covered individual that prohibits or restricts such covered individual from obtaining employment after the conclusion of employment with the employer included as a party to the agreement. Covered individuals include employees, independent contractors, and any other person who performs services for another person to whom the individual is “economically dependent” or “obligated to perform duties for”. 

The law would only apply to agreements entered into or modified on or after its effective date. It would not affect the following: 

  • Agreements with a covered individual that demand an employee to not work for a fixed period of time term, typically after the employee resigns or is terminated. Employees will often be paid as an employee during that time period (allowing certain types of “garden leave” agreements)
  • Agreements that prohibit the disclosure of trade secrets or confidential and proprietary client information (“non-disclosure agreements”)
  • Agreements that prohibit the solicitation of clients of the employer that the covered individual learned about during employment (“client non-solicitation agreements”)

The law would provide covered individuals with the right to bring a civil action against an employer or person alleged to have violated the law. A covered individual may bring such an action within two years of 1) when the prohibited non-compete was signed; 2) when the covered individual learned of the non-compete agreement; 3) when the employment or contractual relationship is terminated; or 4) when the employer takes any step to enforce the non-compete agreement, whichever date occurs latest. 

As a remedy, a court may void the non-compete agreement and provide “all other appropriate relief” including enjoining the employer’s conduct, ordering payment of liquidated damages, or awarding lost compensation, other damages, and attorney’s fees and costs. The statute sets a $10,000 limit on liquidated damages but permits the court to award such damages to every covered individual affected by the prohibited non-compete agreement. 

This law would clearly fortify workers’ right to seek advantageous economic opportunities without undue restraint. Still, the language of the potential statute raises a few questions. First, although the bill explicitly permits the continued use of client non-solicitation agreements, it is unclear whether employee non-solicitation agreements (that is, agreements restricting a covered individual’s ability to hire former colleagues) are permitted. Second, the statute as written appears to prohibit the use of non-compete agreements as part of the sale of a business. However, a business owner may fail to meet the statute’s definition of a “covered individual”, which would place non-compete agreements in this context outside the scope of the law. Hopefully, the New York Department of Labor will provide clarity on these matters if the bill is passed. 

Until the law passes, non-compete agreements in New York remain subject to a rule of reasonableness. Reasonableness dictates that an employer only use a non-compete to protect her legitimate business interests and must not impose an “undue hardship” on her employees. Lawful non-competes must also specify a reasonable time period and geographic scope for their application. If you believe you have been subjected to an unreasonable or unlawful non-competition agreement, please consult with a New York-registered employment law attorney. 

The case of Jimmy John’s, a national sandwich franchise, helps illustrate what an unreasonable non-compete agreement under the current law looks like. Non-confidential Jimmy John’s employees including delivery drivers, sandwich makers, and cashiers were asked to sign non-competes that prohibited them from working within two miles of any Jimmy John’s location for any employer that made more than ten percent of its revenue from sandwiches for a period of two years after the end of their employment. In 2014, in response to a lawsuit brought by the attorney general of New York, the company agreed to stop providing the agreements to New York employees and advised its franchisees to void any such signed non-compete agreements. Unfortunately, it is not uncommon for companies to use the threat of non-competition agreements to deter employees from seeking employment opportunities with competitors or to coerce them to continue working in an undesirable position. 

If New York passes the non-compete bill, it will join the handful of states who have stepped up to protect their workers from unreasonable and coercive non-compete agreements. At present only four states – California, North Dakota, Oklahoma, and most recently Minnesota, have prohibited non-competes. However, since Oregon set a $62,000 salary threshold for non-compete agreements in 2007, more than ten states including Colorado, Illinois, and Maine have implemented significant restrictions on the use of non-compete agreements by setting minimum wage thresholds, advance notification requirements, and demanding that employers provide compensation for employees who consent to their non-compete agreements.As New York prepares to join them, workers, employers, and attorneys would do well to keep an eye out for new developments.