Albo & Oblon, LLP – Attorneys at Law – Washington DC Area

Hampton v. J.W. Squire Company, Inc.– A supervisor called a subordinate a “house nigger” three times and the subordinate complained.  The Court held that these statements were not enough to create a “hostile work environment” and dismissed his claim for employment discrimination at the summary judgment stage.  

To win a a hostile work environment case, an employee must show that “the evidence—viewed in [his] favor—would allow a reasonable [finder of fact] to conclude that the harassment was (1) unwelcome, (2) based on [his]…race, (3) sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive atmosphere, and (4) imputable to [the employer].” E.E.O.C. v. Central Wholesalers, Inc., 573 F.3d 167, 174-75 (4th Cir. 2009).

There is no bright line rule of how many racial epithets an employer can hurl at an employee before he creates a “hostile work environment.”  However, three is not enough according to this Court.

There are four types of employment discrimination under federal law:  disparate treatment, disparate impact, hostile work environment, and unlawful retaliation.  In this case, the employee filed under the “hostile work environment” theory.  Had he filed under the “retaliation” theory, after he was fired, he might have fared better.  However, he didn’t raise this claim in his mandatory complaint to the EEOC.  He raised it, for the first time, in the federal court.  It was too late for consideration. 

Gordon v. Armorgoup N.A., A government contractor employee quit his job because racial harassment and discrimination forced him to resign — an alleged “constructive” discharge.  (Constructive discharge means that while one voluntarilly quits his job, he was effectively forced to do so by unfair circumstances).  The Court held that, under Virginia law, “constructive discharge” is not an exception to the general principle that employment in Virginia is “at will.”  One cannot sue for wrongful termination if he actually quit — “constructive discharge” or not. 

The plaintiff in this case may still pursue a different prong of his lawsuit.  He also claimed that her employer was defrauding the government.  His False Claims Act allegations were based on his “constructive discharge.”  The Court has permitted these claims to go forward because “constructive discharge” can be used as a predicate to a False Claims Act claim.

McCloskey v. Warren County Department of Social Services, No. CL 09000097-000 (Warren County Circuit Court, July 15, 2010).

Can an “at will” employee, employed as a “fraud investigator” be terminated because she performs investigations, cooperates with the prosecutor, and testifies before a grand jury, against the wishes of her employer?

Yes, according to this Circuit Court opinion.

There are three types of exceptions to the “at will” employment doctrine, whereupon employers can terminate employees for almost any reason.

The first, Type I, arises when an employer violates a policy that enables the exercise of an employee’s statutorily created right.

The second, Type II, arises where there is a public policy explicitly expressed in a statute and the employee was clearly a member of that class of persons directly entitled the protection enunciated by the public policy.

The third, Type II, arises when an employee refuses to engage in criminal misconduct.

The Court held in this case that the Type I exception applied. An employees statutory “obligation” is the same as an employee’s statutory “right.” Here, the employee complained that her employee prevented her from investigating fraud cases and cooperating with the prosecutor. Her insistence on doing these things contributed to her termination. The employee had an obligation/right to investigate fraud cases and to assist the prosecutor. Her termination for exercising this obligation/right would result in wrongful termination.

This blog tracks changes and updates to Virginia Employment Law.