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Preemptive Effect of LMRA Extends to Suits Alleging Liability in Tort

Collective Bargaining Agreements (CBA)

Labor relations between an employer and a union are typically defined in a Collective Bargaining Agreement (“CBA”) between the two.  The CBA sets forth the parties’ respective rights and obligations with respect to such things as wages, hours, and other terms and conditions of employment.  The Labor Management Relations Act (“LMRA”) grants jurisdiction to the federal district courts for “[s]uits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce.”

If resolution of a state law claim turns upon interpretation of the CBA, the claim is preempted and subject to dismissal by the federal court.  But “when the meaning of contract terms is not the subject of dispute, the bare fact that a collective-bargaining agreement will be consulted in the course of state-law litigation plainly does not require the claim to be extinguished.”

A Relevant Case

A decision of the Second Circuit Court of Appeals pointed out the fuzzy line that can sometimes exist between a preempted claim and one that is not.  In Adonna v. Sargent Mfg. Co., 2012 U.S. App. LEXIS 10343 (2d Cir. May 23, 2012), a union employee brought claims against his employer for intentional and negligent infliction of emotional distress.  The employer conduct complained of included reassignment, suspension, reduction in pay, and demands not imposed on any other employee.

The Court of Appeals concluded that whether or to what extent this conduct was wrongful could be determined only by examining the CBA provisions relating to the employer’s right to manage, direct, and discipline the workforce, and set employee wages.  Because the employee’s claims were “inextricably intertwined” with the terms of the CBA they were preempted and properly dismissed by the trial court.

Employers and employees alike should be aware of the extensive preemptive effect of the LMRA.  It is the rare state-law tort claim that will not require not only the consultation, but also the interpretation of the relevant CBA, thereby resulting in preemption at the federal level.

The employment law attorneys in the Westport, Connecticut office of Maya Murphy, P.C. have extensive experience in the negotiation and litigation of all sorts of employment-related disputes and assist clients from Greenwich, Stamford, New Canaan, Darien, Norwalk, Westport and Fairfield in resolving such issues. Please contact our office at 203-221-3100.

Sexual Harassment in the Workplace: Defeating an Employer’s Defenses

A victim of sexual harassment in the workplace has certain available protections and remedies under Title VII of the Civil Rights Act of 1964, with respect to unwanted amorous advances, inappropriate touching, or an outright physical assault by another employee or co-worker.  Essentially, a victim of sexual harassment must prove in a civil lawsuit that the harassment was “sufficiently severe or pervasive” to alter the conditions of her employment, and that there was a specific basis for imputing the resulting hostile work environment to her employer (and not merely to the harasser).

The Faragher/Ellerth Defense

Under what has become known as the Faragher/Ellerth defense, employers since 1998 have been permitted by the courts to put forth and establish an affirmative defense to victims’ lawsuits against inappropriately behaving employees, so long as they are able to prove one of two things: A) that the victim unreasonably failed to take advantage of a company’s established procedures and opportunities to prevent sexual harassment (such as policies, training, and complaint mechanisms through human resources), or B) that the victim employee complained about the conduct and the employer took prompt and appropriate corrective action (such as an investigation, discipline, and/or termination of the harasser).

If a defendant company succeeds in proving one of these two elements, that company may not be held liable for the sexual harassment of one of its employees, even under some egregious circumstances.  Today, many companies have policies and procedures in place, and in most circumstances, a company can successfully claim that it would have been “unreasonable” for a victim not to complain about a harasser’s misconduct and to put the company on notice when something untoward occurs.

However, sometimes victims do not complain right away.  In some cases, the harassment is committed by a supervisor – someone in a position of power over the victim, with a stranglehold on the victim’s voice, on her employment, on her will.

Supervisor-Subordinate Harassment

Our law makes adjustments accordingly.  Therefore, where the harassment is committed not just by a co-worker of the victim, but by the victim’s work supervisor, the standard shifts dramatically – the employer company is “presumptively responsible” for the harasser’s conduct.  In that instance, also, there is a proscribed limitation under which an employer can put forth the Faragher/Ellerth defense and potentially escape liability.  Specifically, the test becomes whether the supervisor’s harassment (or unwanted sexual advance) culminated in what is known as a “tangible employment action” – such as a demotion, a denial of a promotion, a change in job responsibilities, or a termination of employment.

In other words, in cases of supervisor-subordinate harassment, a trial court applies a test to determine whether the tangible employment action is “linked” in some fashion to the supervisor’s discriminatory harassment.  If indeed a connection is found – if a supervisor, for example, ultimately fires his victim of sexual harassment for fear she will disclose his reprehensible conduct to others – then the Faragher/Ellerth affirmative defense is not available to the employer company.

The purpose of this rule is to insure that, despite the procedures they might put in place to protect their employees from sexual harassment, companies may and often will be held liable and accountable for the actions of supervisors who harass their subordinates and then utilize their positions of power to remove their victims from the workplace.

If you are the victim of sexual harassment in the workplace, we urge you to seek legal advice immediately and to learn your rights.  Our firm has decades of experience in successfully handling sexual harassment and discrimination cases throughout New York and Connecticut, in both state and federal courts.  Our clients present us with the facts; we arm them with the law and the aggressive, informed advocacy to seek justice on their behalf.

If you have any questions about this posting or confidential inquiries concerning the subject matter, please contact Attorney H. Daniel Murphy at