Significant 2006 Employment Law Decisions
| Publication year | 2021 |
| Pages | 197 |
81 CBJ 197. SIGNIFICANT 2006 EMPLOYMENT LAW DECISIONS
Volume 81, No. 2
June 2007
There were many significant additions to employment law jurisprudence in 2006. The United States Supreme Court decided an important issue concerning Title VII's anti-retaliation provision and created an interesting exception to the public employee's right to speak with First Amendment protection on matters of public concern. Our state Supreme Court, among other decisions, addressed how "forfeiture for competition"(fn1) clauses are to be assessed and issued a particularly illuminating decision on the breadth of our state law definition of "physically disabled."(fn2) The Supreme Court also held that actions seeking damages under the Connecticut Uniform Trade Secrets Act(fn3) are rooted in the common law and, therefore, fall within the jury trial provision of the Connecticut Constitution. This article surveys these and other significant 2006 employment law decisions.
The issue the Supreme Court resolved concerning Title VII's anti-retaliation provision(fn4) was whether the provision extends to retaliatory actions and harms that are not workplace or employment related. In other words, does the provision apply to retaliatory actions and harms that do not affect the employee's terms and conditions of employment? In Burlington Northern & Santa Fe Railway Co. v. White,(fn5) the Court decided that the provision does indeed apply to those actions and harms. It also decided that the provision proscribes only those retaliatory actions that are materially adverse to a reasonable employee-actions that would dissuade a reasonable worker from making or supporting a
charge of discrimination.(fn6)
The issue arose because the District Court charged the jury that workplace or employment relatedness was required to establish actionable retaliation. The employer argued that the charge was proper because Title VII's anti-retaliation provision, like its substantive anti-discrimination provision, requires a link between the action and the terms, conditions or status of the employee's employment. The Court rejected the argument because the words of linkage that were prominent in the antidiscrimination provision were conspicuously absent from the anti-retaliation provision. "We normally presume that, where words differ, as they differ here, Congress acts intentionally and purposely in the disparate inclusion or exclusion."(fn7)
The Court's conclusion was also influenced by the different purposes the provisions serve.(fn8) The anti-discrimination provision protects employees from disparate treatment in the workplace due to race, color, religion, sex or national origin, while the anti-retaliation provision protects Title VII's enforcement process (by safeguarding employee access to it). From this the Court reasoned that the purpose of the anti-discrimination provision could be secured by a proscription that covered only employment or workplace related actions, but the purpose of the anti-retaliation provision would be thwarted if employers were free to retaliate against an employee in ways that did not affect the employee's terms or conditions of employment; that non-workplace or non-employment related retaliation could dissuade just as powerfully as workplace or employment related retaliation.(fn9)
As to the level of seriousness the harm must attain before the retaliatory conduct becomes actionable under Title VII, the Court noted that Title VII is not a general civility code for the American workplace, and that it is not concerned with trivial or petty harms.(fn10) Yet, one of the alleged retaliatory actions in Burlington--a 37-day suspension without pay--
had been completely remedied before the plaintiff asserted any Title VII claims. The employer had rescinded the suspension and reinstated the employee with full back pay. The Court, nevertheless concluded that the physical and emotional hardship of having no income for 37 days was neither trivial, nor harmful for anti-retaliation provision purposes. "A reasonable employee facing the choice between retaining her job [and paycheck] and filing a discrimination complaint might well choose the former."(fn11) Clearly, "material harm" is not a terribly onerous standard.
The United States Supreme Court's public employee free speech decision is Garcetti v. Ceballos.(fn12) Per the jurisprudence on public employee free speech, public employees may be protected by the First Amendment when they speak on matters of public concern--protected in the sense that they cannot be disciplined for that speech so long as the speech does not interfere with the workplace and is not motivated by personal as opposed to public purposes. Whether First Amendment protections ultimately attach when public employees speak on matters of public concern depends on whether the employee's interest in commenting on matters of public concern outweighs the employer's interest in the provision of efficient and effective public service in the particular case. In Garcetti, the Court crafted a new principle. Even if the public employee's speech involves a matter of public concern, and even if the court were to find that the relevant employee interest outweighed the pertinent employer interest, the speech is not protected if it is uttered or written in order to discharge an employment duty. "[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."(fn13)
In Garcetti, the employee was a supervising deputy district attorney who was asked by defense counsel in a pending criminal case to review the accuracy of certain assertions in an affidavit used to obtain a search warrant in that case. The deputy reviewed the affidavit and concluded that it contained serious misrepresentations. He then wrote a memo to his superiors reporting his findings and recommending that the case be dismissed. His superiors not only rejected the recommendation, they retaliated against him (in his terms and conditions of employment) for writing the memo. The Court concluded that the deputy had an employment duty to write the memo and therefore the First Amendment did not shield him from retaliation on account of this speech.(fn14)
In Deming v. Nationwide Mutual Insurance Company,(fn15) the state Supreme Court addressed whether a "forfeiture for competition" or "clawback" clause should be analyzed like a noncompetition covenant. The Court said "Yes." In that case, former Nationwide salespeople sued the company claiming that it had wrongfully refused to pay them the deferred compensation and renewal commissions that it owed them post-termination. The company raised the clause as a defense. The clause provided that employees would forfeit these post-termination benefits if they engaged in certain competitive conduct post-termination. Finding that there was no genuine issue concerning the former employees' competition and that as a matter of law, the clause was a "valid forfeiture for competition clause," the trial court entered summary judgment for the company.(fn16) The former employees appealed.
The issue--one of first impression for the Court--was whether the clause should be deemed a "valid forfeiture for competition" clause and enforced without regard to its reasonableness, or whether it should be treated as a covenant not to compete and enforced only if it is reasonable.(fn17) Reversing the
trial court, the Supreme Court opted for the latter approach.
In so doing, it rejected the majority rule and subscribed to the minority rule.(fn18) The majority rule, according to the Court, was that a forfeiture for competition clause is not a restraint of trade; hence there is no requirement that the clause be reasonable to be enforceable.(fn19) The rationale for this position is that these clauses do not prohibit employees from engaging in competitive work or from earning a living in their chosen vocation; they merely deny employees the right to certain post-termination benefits if they chose to engage in competitive work once they leave. The minority view, in contrast, is that the threat of economic loss to an employee should he or she decide to compete is indeed a restraint of trade; therefore, the rule of reason applies, and these clauses can only be enforced if they are reasonable.(fn20) The rationale here is that the "undoubted object and effect [of the clause] is that of a powerful deterrent to the employee's exercise of the right to compete, particularly where the penalty involved is substantial."(fn21)
In aligning itself with the minority, the Court acknowledged that the restraint imposed by a forfeiture for competition clause may be indirect, but it "hardly can be deemed subtle."(fn22) The Court stated that it "would be unduly formulistic if we were to invalidate a covenant not to compete that was in direct restraint of trade, but approve a forfeiture provision that indirectly accomplished the same result."(fn23)
In Fullerton v. Administrator,(fn24) the Supreme Court decision discussed the means of challenging the validity of an unemployment compensation regulation as illegal disability discrimination.
The state regulation at issue was Connecticut General Statutes Section 31-235-6(a), which requires applicants be
available for full-time work to qualify for benefits.(fn25)...
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