Getting a little too close to a dangerous situationAlthough the Oscars are eleven days away, it seems that the online collective of paid critics, amateur bloggers, and self-professed film buffs has already announced the “rightful winners.”  Whatever the Academy Awards Committee officially decides, the court of public opinion has long since pulled the Oscar bait off the hook and separated the wheat from the chaff.While HR Legalist can’t decide the artistic merits of this year’s nominees, we can offer our expertise as legal professionals.  Using The Revenant as a case study, we hope our spoiler-free analysis of the film’s labor and employment-rich plot proves a smash hit in the 2016 legal blogosphere.

Basic Fact Pattern

Per the IMDB byline, Leonardo DiCaprio portrays Hugh Glass—an 1820s fur trader who must fight for his life after he is attacked by a bear and abandoned by his fellow traders. Like a final exam from a law student’s nightmare, The Revenant’s official trailer adds to this synopsis by zig-zagging between crucial plot points and extraneous one-liners. However, if we suspend our sense of disbelief and assume current L&E laws apply to fur trapping companies in the pre-territorial Dakota wilderness, several key facts are clear:

  • Man meets bear.
  • Man gets mauled by bear.
  • Supervisor orders coworkers to stay with man until man recovers (or, in their view, more likely dies).
  • Coworkers are less-than-fond of man’s half-Native American son.
  • Coworkers abandon man while still alive.
  • Coworkers lie to supervisor that man has died.

Add in the fact that the supervisor offered the coworkers a monetary bonus to take on this burden, and Hugh Glass could have multiple claims against not just his employer, but also his coworkers and supervisors in their individual capacities. HR Legalist won’t attempt to discuss every cognizable claim (which could fill a series of blog posts, or even a law review article), but if Glass (or surviving family members) threatened legal action and the aforementioned parties time-traveled to our L&E Department in search of legal advice, we might begin by counseling them as follows:

FMLA

            If Glass survives his ordeal, he might file FMLA interference and retaliation claims against his employer and supervisor.  Unlike other antidiscrimination laws, “corporate officers ‘acting in the interest of an employer’” may be found individually liable for FMLA violations.  This includes supervisors of both public agencies and private employers.

In order to prove FMLA interference, Glass would have to show that he was denied FMLA benefits after notifying his employer of his intention to use them.  Even if Glass was incapable of communicating this notice in a literal sense, the Seventh Circuit has found that “constructive notice” exists where a reasonable employer would interpret an employee’s “change in behavior” as the onset of a serious health condition. Incapacitation after being mauled by a wild animal would surely qualify.

Although Glass’ supervisor promised to reward his coworkers for staying behind to care for him, Glass could show interference by proving the supervisor offered the coworkers the reward as pretext, knowing that they would leave Glass for dead.  This would also qualify as retaliation; abandoning a gravely injured coworker in the wilderness may be the ultimate “constructive discharge.”  As a result, Glass could show that he suffered an adverse employment decision that was directly related to his invocation of FMLA rights.

Title VII

            Although calling a mixed Native American-Caucasian a “half-breed” was socially acceptable circa. 1820, this is now a classic “smoking gun,” or direct evidence of discrimination. While the comment was not directed at Glass specifically, courts are increasingly willing to infer discriminatory animus based on “associations” with persons of other races.  This includes the Second Circuit, which found that a white man could maintain a discrimination claim by claiming he was terminated for having an African American spouse.

While the commenter was a non-supervisor, if Glass can show this was not a “stray remark” and connect this sentiment to his supervisor, he could demonstrate a causal link between his “constructive discharge” and “racial association” discrimination. In addition, although Title VII does not contemplate individual liability, many of its state equivalents, like the Pennsylvania Human Relations Act, hold supervisors liable where they have “aided and abetted” their employer’s discriminatory practices.

Glass’ employer must also be mindful that although a single remark cannot show the repetitive and pervasive behavior necessary to show a hostile work environment under Title VII, the utterance of one racial epithet can suffice under other antidiscrimination statutes, like New Jersey’s Law Against Discrimination.

Workplace Safety/OSHA

Apart from the permutations and combinations of torts claims that Glass could bring against his coworkers, supervisor, and employer, Glass could sue his employer for violations under the Occupational Safety and Health Act (or OSHA), which was enacted to reduce workplace hazards by implementing safety and health programs. OSHA does not shy away from regulating “inherently dangerous” work environments, like the oil, gas, and construction industries. OSHA would probably view the fur trade no differently, especially since it has investigated bear attacks as workplace fatalities.

Even if bear mauling were a regrettably acceptable job hazard, the supervisor’s decision to resolve the issue by directing two employees to remain behind while Glass recovered could be sufficiently grossly negligent or reckless to amount to “intentional” harm, especially if Glass can show one or more instances of discriminatory animus as previously discussed. In over ten states, including New Jersey, injured employees can sue their employers outside of the workers’ compensation realm under these circumstances.

Conclusion

            Regardless of Oscar-worthiness, we hope you agree that The Revenant is not only a story of resilience and the human condition, but also a cautionary tale against the legal “attacks” that aggrieved employees can bring against their employers. Lions and tigers and lawsuits, oh my!

HR Legalist wishes the best of luck to this year’s nominees!  May the best films win, if not the most outwardly litigious.

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HR Legalist thanks Tara Dickson for her research assistance in creating this blog post.


 

Alexander BatoffAlexander V. Batoff focuses his practice on counseling clients on federal and state employment laws and regulations and defending them in litigation.  He may be reached at 215-665-3048 or alexander.batoff@obermayer.com.