An Employer’s Win Last Year Might Not Have Been a Victory Today

The employment law tides may be turning: If some of last year’s cases were heard this year instead, they may have come out in favor of employees rather than employers, according to Joe Beachboard, president and attorney with Beachboard Consulting Group in Palos Verdes, Calif. The shift is due to a U.S. Supreme Court decision earlier this year and a new law, he noted.

At the SHRM Annual Conference & Expo 2024 (SHRM24) on June 25, Beachboard said that Ortiz v. Bank of Labor, a 10th U.S. Circuit Court of Appeals decision from May 23, 2023, is one such decision that could have been decided differently had it been heard this year. 

Accommodations Denied, but No Violation

In Ortiz, a bank teller worked at a small branch that was attached to a 7-Eleven. She did not like using the 7-Eleven restrooms because she said they weren’t cleaned well. She preferred using the McDonald’s restroom across the parking lot from the bank. She also wanted to sit in a folding chair in a cubicle when she was not assisting customers.

The bank initially expressed no concern with the teller using the McDonald’s bathroom until she was told the bank required two employees to be present in the branch whenever it was open.

The rule created a problem for the teller for two reasons. First, she was pregnant at the time, resulting in more frequent trips to the bathroom. Secondly, the teller and another employee usually opened the branch at 7:15 a.m., but a third employee often did not arrive until 9:45 a.m. or 10 a.m. So every morning, the teller faced a stretch of more than two hours when she could not leave to use the McDonald’s restroom. She could still use the 7-Eleven restroom at any time.

The chair accommodation was due to her feet starting to swell when she was pregnant. The teller started using the folding chair that fit in her cubicle, where she sat except when helping a customer. But the branch supervisor soon took the folding chair away and informed the teller of a new rule that the chairs used in the drive-through window area were the only authorized chairs. The teller responded that those chairs would not fit in her cubicle and she could not carry them back and forth from the drive-through window, but the branch supervisor allegedly ignored her.

The next month, the teller used Wite-Out to cover over the starting cash amount on a vault log and wrote in a new figure that was $25.00 lower. She was terminated for “force balancing,” which is how her modification was described. When confronted about the force balancing, the teller denied intentionally force balancing the log and claimed “pregnancy brain” caused her actions.

The bank fired the teller for force balancing the vault log in violation of multiple bank policies. The bank teller sued, and the district court upheld the termination.

The teller appealed but dropped her Americans with Disabilities Act (ADA) claim. Pregnancy is not considered a disability under the ADA, though medical complications arising from a pregnancy may be. On appeal, the 10th Circuit examined only whether the teller raised a genuine dispute under Title VII of the Civil Rights Act of 1964 that the bank unlawfully discriminated against her when it:

• Would not allow her to use the McDonald’s restroom until a third employee arrived.
• Would not let her use the folding chair in her cubicle.
• Terminated her, ostensibly for force balancing the vault log.

The District Court rejected all three theories, and the 10th Circuit affirmed.

The core of the concept of whether someone has experienced an adverse employment action “is a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits,” the appeals court stated.

It said the teller's preferred restroom use did not rise above mere inconvenience. Not being able to use a folding chair was not an adverse employment action under Title VII, the court also found. In addition, the appeals court held that there was nothing to suggest the bank did not view force balancing as the true reason for termination.  

Would Decision Differ if It Was Issued Now?

However, after the Supreme Court’s ruling this year in Muldrow v. City of St. Louis, plaintiffs no longer have to show a significant disadvantage to bring claims under Title VII, Beachboard said. If the Ortiz case came up today, it probably would have a different result in light of Muldrow, he stated.

Moreover, the federal Pregnant Workers Fairness Act now requires reasonable accommodations for pregnant workers, he noted.

Employers sometimes can learn more from decisions or rulings that uphold employers’ actions than from million-dollar verdicts against them, Beachboard said. However, he added, it’s also important to recognize that the law is often changing.