Reaching out to injured employees on a regular basis can mean the difference between getting employees back to work quickly and seamlessly versus dealing with expensive and prolonged workers’ comp litigation. For many employes, their job is intrinsically linked to their identity. An injured employee who is off work recovering may feel isolated or depressed. Accordingly, employers should be careful in dealing with such employees, as negative emotions are a fairly predictable precursor to legal action. Treating employees as if they are easily replaceable can have unintended negative consequences. Instead, taking the time to call injured workers once a week sends the right message, namely that the employer cares and wants to see the employee back at work. A simple “how are you doing? We can’t wait to have you back” may be all that is needed. It’s the little things that can make the biggest difference.
Earlier this month, the Sixth Circuit reversed the grant of summary judgment against a former employee who was transferred during her pregnancy due to concerns the employer had about her health. In Spees v. James Marine Inc., Heather Spees was a welder who discovered she was pregnant shortly after starting her job. At her supervisor’s request, she saw her physician to ascertain her ability to continue working. He released her to work with no restrictions. Nonetheless, her supervisor continued to have concerns about potential health risks to Spees, in part due to the physically demanding nature of the work, and in part due to the fact that two years prior Spees had suffered a miscarriage. He opined that due to “common sense,” Spees should be transferred to a light-duty position. She was therefore reassigned to work in the tool room, despite her desire to continue to weld. Spees was then transferred to the night shift, where she worked until she was confined to bed rest due to complications related to the pregnancy. She quickly exhausted her leave and was thereafter terminated.
Spees sued for pregnancy and disability discrimination, due to her transfer and subsequent termination. The lower court granted the employer summary judgment on all counts. While the Sixth Circuit upheld the grant of summary judgment with respect to the termination (based on leave exhaustion), it held Spees had viable claims relating to her transfer. First, the supervisor’s statement that “common sense” trumped Spees’s medical clearance to return to work was impermissible. Further, it appeared the employer may have “regarded Spees as” disabled, due to her prior pregnancy complications.
Make sure supervisors understand the rules when it comes to working with pregnant employees. Even the benevolent employer who is trying to keep its employees safe can run afoul of the law.
We all know that non-exempt employees are entitled to overtime pay for hours worked in excess of forty per week. What about time spent, outside of traditional working hours, responding to work-related issues via email, voicemail, blackberries, iphones, and other PDAs? This is the issue the Northern District of Illinois will decide in a case filed earlier this year. In Allen v. City of Chicago, a police officer alleges he is owed overtime pay under the Fair Labor Standards Act for exactly this.
The court will almost certainly hold that such time constitutes “hours worked” and thus needs to be compensated. A more interesting question, though, is what the proactive employer should do now. Under the statute, if an employee claims he worked X hours worth of overtime, it is incumbent upon the employer to disprove the claim or be stuck with the employee’s estimate. Accordingly, employers should consider ways to accurately track time their employees spend on PDAs and the like. One simple solution would be to create a form for employees to track their time and have supervisors review and approve it. In any event, the issue is one employers should be giving some thought to.
Last month, the Sixth Circuit denied the FMLA claim of a fired employee who suffered from a heart condition. In Gipson v. Vought Aircraft Industries, plant maintenance worker Howard Gipson refused his supervisor’s order that he remove his personal effects from the union office. His supervisor asked him three times to move his belongings, but Gipson stated he would not do so unless given a written request. Frustrated, his supervisor raised his voice, stated he was giving a direct order, and threatened to fire Gipson if he did not comply. Still, Gipson just walked away. He claimed that his supervisor’s behavior made him feel unwell, triggering an underlying heart condition. He then went to the company nurse, complaining of a headache. He never mentioned his belief that his heart condition was flaring up. Shortly thereafter, Gipson was terminated for insubordination. Upon leaving work, Gipson drove himself to his doctor, where he made an appointment for three weeks hence.
Gipson subsequently sued for interference with his FMLA rights. At issue was whether Gipson provided his employer with sufficient notice of his need for FMLA leave. The lower court held, and the Sixth Circuit affirmed, that he did not. Gipson underwent triple bypass surgery two years prior to his termination. He was afforded FMLA leave at that time. However, at the time of his firing, he never mentioned that his heart was acting up, or that he needed leave related to his condition. Complaining of a headache was insufficient, as a matter of law.
So what constitutes adequate notice under the FMLA? Employees do not specifically have to mention the FMLA when requesting leave, to trigger their rights under the statute. But they must provide enough information to put a reasonable supervisor on notice that they are suffering from a serious health condition. Simply complaining of not feeling well or having a headache will not be enough.
Earlier this month, the Third Circuit upheld a prison’s refusal to accommodate three female employees who wanted to wear khimars, Islamic religious head scarfs. In EEOC v. GEO Group Inc., the defendant employer was a private company that contracted to operate a prison facility in Pennsylvania. In 2005, the prison adopted a strict dress code that prohibited any types of hats, scarfs, or other head coverings, unless part of the issued uniform. The policy was strictly enforced, and the prison warden refused to permit three Muslim employees wear their khimars, despite their protests that they needed to do so for religious reasons. Acting on behalf of the employees, the EEOC sued under Title VII’s prohibition against religious discrimination. The court was persuaded by the defendant’s claimed safety concerns, namely that the khimars could be used to strangle a prison guard or to smuggle contraband into the prison.
The duty to accommodate religious beliefs is a serious one, and often carries the day in religious discrimination lawsuits. This case highlights the major exception employers can rely on: safety.
In the 2006 Supreme Court case Ash v. Tyson, the Court held the term “boy,” which was directed at an African-American employee, could be probative of race discrimination, depending on tone, inflection and context. The Court sent the case back to the Eleventh Circuit, which had upheld the trial court’s decision to vacate a jury verdict of over $1 million. Just last week, after approximately fourteen years of litigation, the Eleventh Circuit once again ruled against the plaintiff, holding that the term “boy” in this case was insufficient to support the jury’s finding of race discrimination.
The case arose out of a failure to promote two African-American employees at a Tyson chicken plant in Alabama. Two whites were promoted instead, and there was evidence that the decision-maker referred to the plaintiffs by stating “boy” during the promotional process. Regardless of the plaintiffs’ loss, it is still the case that racially charged terms such as “boy” — particularly given certain historical and geographical contexts — can evince discrimination.
I saw a headline yesterday that really upset me. It referred to a recent poll showing that one in five Americans think President Obama is Muslim. In response, a White House spokesman insisted the President is a Christian who prays daily. The brouhaha seems to have stemmed from the ongoing public debate about whether Muslims should be permitted to build a mosque/community center in the vicinity of the World Trade Center site.
Why did the article upset me? And, more importantly, what does this have to do with you? It is beyond dispute that President Obama is Christian, always has been, and always will be. The fact that so many still do not know this, or are so easily misled by false information, is alarming. Even more striking to me, though, is that people care about his religion. ”Muslim” has become almost a dirty word, and this should concern every employer, regardless of your political or religious leanings. When prejudice becomes socially acceptable, it is all the more likely to spill into the workplace. However, it is just as illegal as any other type of prejudice, such as stereotypes based on race or gender.
There was a sharp increase in religious/national origin discrimination claims after 9/11. The EEOC went after them just as hard as any other type of claim. Make sure to include this type of potential discrimination in your supervisory training, and stay on the lookout for brewing problems.
The Sixth Circuit recently upheld the dismissal of an employee’s sex discrimination complaint on the grounds that her alleged comparator was not “similarly situated.” In Corell v. CSX Tansp. Inc., the plaintiff was terminated for violating safety standards that resulted in the derailment of a train and cost her employer approximately $100,000. In her ensuing sex discrimination lawsuit, she relied on the fact that a male employee who had also derailed a train and cost the employer more than $700,000 was merely suspended. In assessing the comparison, the Sixth Circuit held that to be similarly situated, employees must have had the same supervisor, been subject to the same standards and engaged in “the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer’s treatment of it.”
A number of factors distinguished the male employee from the plaintiff. First, whereas the plaintiff had been written up for numerous safety violations, the male had only the one. Second, they had different supervisors and decision-makers. Finally, the male employee’s violation resulted, at least in part, from faulty information he had received from another employee. Accordingly, the court held Corell failed to establish even a prima facie case of sex discrimination.
It is noteworthy that the employer in this case had solid documentation of its termination decision, as well as its decision to treat the male employee more favorably. Make sure supervisors know how to document, and to do so thoroughly. Their seemingly mundane jottings could someday be “Exhibit A.”
Earlier in the year we blogged about the United States Supreme Court case of Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, where the Court held that an employee who participates in an internal investigation of a harassment complaint is protected against retaliation. Recently, the First Circuit decided a case under Crawford, finding that a supervisor who tried to help his subordinate initiate an internal harassment complaint was also protected against retaliation. In Collazo v. Bristol-Myers Squibb Mfg. Co., an employee complained to her supervisor that a co-worker had sexually harassed her. The supervisor spoke to the alleged harasser, initiated a meeting with HR and the complainant, and followed up with HR on two occasions concerning its lack of responsiveness. Shortly thereafter, the supervisor was terminated.
Reversing summary judgment on the supervisor’s retaliation claim under Title VII, the court held that a reasonable jury could conclude the supervisor’s conduct constituted “opposition” to harassment. The case will now proceed to a jury, unless the employer tried to settle the case.
The lesson here is clear: employers must tread lightly when it comes to potential retaliation claims. Know the law and its breadth, and make sure your supervisors do too!
Last week, computer giant Hewlett-Packard announced that its CEO Mark Hurd, who has been widely credited with turning the once-troubled company around, was resigning following an internal investigation into claims of sexual harassment. A former HP contractor made allegations of harassment, apparently arising out of a romantic relationship she had with Mr. Hurd. The Board of Directors launched an investigation, which did not corroborate the harassment allegations, but did reveal other instances of misconduct, including allegedly falsified expense reports.
The headline raises a couple of interesting issues for employers. First, it reminds us that allegations of sexual harassment are extremely serious and potentially career-ending. Those at the highest levels of an organization should never feel they are above the law, so to speak. Second, it highlights the importance of workplace investigations, which can sometimes take unexpected turns. The investigator of the allegations against Hurd presumably did not commence the investigation with concerns about expense reports. But he or she uncovered the issue and pursued it. Finally, romantic relationships at work, particularly when the parties are in a superior/subordinate relationship, can be fraught with danger. There are certainly occasions when such relationships work out, but when they don’t, things can often turn ugly, for everyone involved.
Last week, a jury rejected Don Rosenberg’s claims against The Plain Dealer and the governing body of the Cleveland Orchestra. The classical music critic was reassigned from covering the orchestra after repeatedly criticizing music director Franz Welser-Most. His replacement was significantly younger, resulting in a claim of age discrimination. Rosenberg’s negative reviews generated complaints to the newspaper from members of the public and from the arts association. Thus, the decision was eventually made to reassign him, though he lost no pay or benefits as a result.
In addition to his claim of age discrimination, Rosenberg also accused the defendants of defamation and interference with his work. But according to Plain Dealer Executive Editor Susan Goldberg, the issue was one of journalism and not having an open mind. The jury apparently agreed.
Around 7:00 a.m. on August 3, a warehouse driver who was asked to resign from his job at a beer distributor in Manchester, Connecticut opened fire in the warehouse, killing and wounding several employees. Omar Thornton was said to have sat calmly through a meeting with his union rep and his supervisors as they showed a video of him stealing beer. He quietly signed a letter of resignation. Moments later, though, he pulled out a gun and began shooting.
As local police came on the scene, Thornton is alleged to have called his mother. He said “I killed the five racists that was there that was bothering me.” He then killed himself.
Prior to the deadly shootout, Thornton allegedly told family members that he found a picture of a noose and a racial epithet on a bathroom wall. He stated he had reported this to one of his supervisors. The company is denying this report, maintaining there was no discrimination of any kind.
This incident is tragic, to be sure. It also carries a potent reminder for employers to be proactive and address potential violence in the workplace. First, employers should make sure they have solid anti-violence policies in their handbooks. Second, they should train their managers on recognizing and dealing with warning signs of violence. Finally, they should review their harassment-prevention plans. While it is too early to know for sure whether racial harassment played a role in the Connecticut shooting, it is certainly worth noting that incidents of harassment can be triggers for emotional outbursts. Prevention can be the key.
At a City Club of Cleveland forum a couple of weeks ago, State Representative Courtney Combs called for an Arizona-style crackdown on illegal immigration. The Arizona law, which we blogged about last month, contains sweeping measures critics have labeled as inviting racial profiling, including requiring police officers to stop anyone they believe might be in the state illegally. Representative Combs has launched a similar campaign in Ohio, where he hopes to garner enough support to get a similar law on the Ohio ballot next year. Combs’s views upset the other panel members of the forum, including local immigration lawyers and the executive director of the local NAACP. They opined that Ohio should welcome, not scare away, people of all national origins and races.
In the meantime, it is worth noting that a federal judge struck down some of the most controversial provisions of the Arizona law, deeming it unconstitutional. Fierce public debate, including the arrest of peaceful demonstrators who oppose the law, ensued. No doubt the controversy will continue to swirl. And Combs’s stated efforts will ensure that debate occurs here in Ohio, too.
Employers should continue to follow the Arizona law’s progression, as well as efforts to enact a similar law in Ohio. Keep your ears close to the ground to make sure the controversy is not affecting the workplace. If it is, remind employees of your commitment to a discrimination-free workplace, and take steps to ensure that commitment is being honored.
The Society of Human Resources Management (SHRM) has been very vocal about its position that employers should embrace flexible working arrangements, rather than facing legal requirements that force them to. (See our July 15, 2009 post on this issue). In March 2010 SHRM launched its Business Champions campaign, which asks employers to sign a Statement of Support for Expanding Workplace Flexibility. The pledge commits an employer’s leadership to communicate its commitment, support managers in developing skills for managing workplace flexibility, and implement flexible arrangements for employees at every level of the organization. Business Champions receive a seal and logo that recognize their support, which can then be used as a marketing tool.
In SHRM’s view, flexible workplace arrangements benefit employers by helping them attract and retain talent. In the words of one supporter, “Businesses that are thinking about the future and want to be globally competitive are embracing workplace flexibility as a core leadership tool that enables people to meet work and personal responsibilities.” Employers interested in joining the campaign should review and revise their policies, communicate with their workforce about any new initiatives, and train supervisors on how to effectively manage such arrangements.
It is well-established by now that customer preference is not a defense to a discrimination claim. But just in case employers need reminding, a case decided by the Seventh Circuit last week does just that. In Chaney v. Plainfield Health Center, the defendant nursing home honored the wishes of some of its patients that they receive care only from white nursing assistants (“CNAs”). It made a notation on an assignment sheet for employees that certain residents “Prefers No Black CNAs.” The plaintiff, a black nursing aid, was given this sheet as a reminder of which residents to avoid. While the trial court (shockingly) upheld this restriction, the Seventh Circuit reversed, holding that Title VII does not permit employers to discriminate based on race in order to appease customers.
To me, the surprising thing about this case is that it needed to be filed. Employers should be savvy enough to know that the kind of blatant race discrimination at issue here is simply not permissible. Make sure your basic supervisory anti-discrimination training covers topics such as this one. Ours always does.
We are speaking tomorrow at the HR Star Conference in Cleveland. Jennifer’s topic is What Every Employer Needs to Know about Social Media and Employment Law. Sindy’s got two topics: Workplace Investigations in a Nutshell, and After the Investigation: Best Practices for Getting Back to Business.
If you are there, stop by and say hello!
We’ve blogged before on the Genetic Information Nondiscrimination Act (“GINA”), and what it means for employers. Another potential implication of the law is making it illegal for an employer to refuse to hire someone because they are overweight. (Thanks to the Delaware Employment Law Blog for this one). GINA makes it illegal for an employer to base an employment decision based on someone’s genetic makeup. Being obese, and even overweight, is surely, at least to some degree, based on genetics. Thus, an employer who refuses to hire someone because he is obese or overweight is skating on thin ice.
We think it is just a matter of time before this theory is tested with the EEOC. Make sure to include genetic-based discrimination in your policies and supervisory training.
U.S. Agriculture Department employee Shirley Sherrod was asked to (and did) resign on Monday, July 19. The request came from Agriculture Secretary Tom Vilsack, following the posting of a video by conservative bloggers that claimed to show Ms. Sherrod making racist remarks at a recent NAACP event. The conservative organization BigGovernment.com showed only a small clip of her remarks. In the clip, Ms. Sherrod recounted how twenty four years ago, while working for a non-profit farm aid group, she did not initially help a white farmer as much as she might have. She went on to explain how she learned from this “mistake,” and realized that all poor farmers needed assistance. This latter part of her speech, however, was omitted from BigGovernment.com’s blog.
A media firestorm ensued. The Obama Administration and the NAACP were quick to criticize Ms. Sherrod. Her forced resignation quickly followed. But then the facts came to light, namely that Ms. Sherrod was advocating race reconciliation, not racism.
Ms. Sherrod has been asked to come back to the Agriculture Department. She even received a personal call from President Obama apologizing for the entire situation. Mr. Vilsack has also apologized repeatedly, stating he made the decision to ask for her resignation without knowing all the facts. To date, though, Ms. Sherrod has not indicated she wants to return to the Department.
What can employers take away from this situation? Know your facts before you fire someone (or force them to resign). At a minimum, the Department should have conducted a quick investigation into Ms. Sherrod’s statements and given her a chance to explain.
As a side note, when people discuss race relations, emotions can run high. It is particularly important, then, to really listen to what people are saying before rushing to judgment. It is a dangerous thing to cavalierly label someone a “racist.” In this area, cooler heads should prevail.
We all know that employers have a legal obligation to conduct a prompt and thorough workplace investigation when an employee complains of discrimination or harassment (or any other policy violation, for that matter). Once the investigation is over, though, what is an employers obligation? As I will be discussing at length at next week’s HR Star Conference in Cleveland, there is still much to be done.
One scenario that can arise is that the complainant is unhappy with the investigation’s results. This is exactly what happened in the recent Ohio case of Davis v. Omni-Care, Inc. The Davis plaintiff complained about what he thought was a noose hanging from a co-worker’s bulletin board. The employer immediately commenced an investigation. The co-worker explained the string was not a noose, but was rather a contraption he designed to relieve stress by tying the loop around his finger and pulling it tight. The employer nonetheless removed the string, concluding it was disruptive to the workplace. It also provided sensitivity training to prevent further instances of misunderstandings and conflict.
The complainant, however, was not satisfied, as his co-worker was not terminated. Accordingly, he began to ignore his supervisor’s instructions and refused to return phone calls. Management scheduled a meeting to address this break-down in communication, but the complainant refused to attend. Thus, he was terminated for insubordination. Predictably, he sued for retaliation. The court ruled in the employer’s favor, concluding the complainant had been terminated for the legitimate, non-retaliatory reason of insubordination.
This case demonstrates that employers have some leeway in handling the results of an investigation. The complainant does not always get to call the shots, and can still be expected to behave professionally. Still, employers should tread carefully (i.e., call your lawyer!) when dealing with potential disciplinary action against an individual who recently engaged in protected activity, such as complaining about alleged discrimination.
The Sixth Circuit recently upheld a jury award of over a million dollars to a plaintiff who had been employed for a mere five weeks. In West v. Tyson Foods, Inc., the plaintiff claimed she was sexually harassed by a number of male co-workers. Per her employer’s policy, she complained to her immediate supervisor. The supervisor’s initial response was that she should not take offense, as “that’s just how they treat their women over there.” He further assured he she was “hot.” He then told her he would look into the matter and specifically asked her not to go to HR. The only thing he did was to “observe” the situation for a few days.
After the plaintiff was followed to her car one night, she decided not to return to work and was terminated for job-abandonment. She then had an exit interview with an HR manager, and she disclosed the harassment. The manager promised to investigate, but did nothing. Tyson finally conducted an investigation after the plaintiff filed an EEOC charge.
The investigator did not interview one of the named harassers, a co-worker to whom the plaintiff had complained to at the time of the alleged harassment, or the manager who conducted the exit interview. The investigator simply sent the witness statements to Tyson’s EEO specialist who, in turn, did nothing except respond to the EEOC charge.
A jury awarded the plaintiff $1.2 million, including punitive damages, and the Sixth Circuit upheld the award. Tyson’s response to the plaintiff’s internal complaint was “woefully insufficient,” according to the court. No action was taken to stop the harassment; the investigation was conducted too late and was incomplete, at best, and; no disciplinary measures were ever imposed on the perpetrators.
On appeal, Tyson argued the trial court erred in admitting evidence of the investigation at all, as it was conducted post-termination. But the Sixth Circuit disagreed, finding the details of the investigation were relevant to show Tyson’s “reckless disregard” of the plaintiff’s Title VII rights, thereby supporting the punitive damages award.
This case is a textbook example of how not to respond to an internal complaint of harassment. It’s also a good reminder that having an anti-harassment policy is not enough. Supervisors must be trained on how to deal with harassment situations that arise.
On Thursday July 22, 2010, the EEOC will observe the twenty year anniversary of the Americans With Disabilities Act. The agency will host a panel discussion, “Celebrating the ADA — Looking Back, Moving Forward.” The ADA Amendments Act of 2008, which dramatically expanded the scope of the law, will be one of the main topics.
This celebration of the law’s passage — and its attendant increased enforcement efforts — serves as a timely reminder for all employers to make sure they have the tools in place to ensure ADA compliance. Have your supervisors been trained on the law’s requirements? Do they know how to spot and respond to requests for reasonable accommodations? Is there a centralized person or department that reviews and responds to such requests? If you have not answered “yes” to each of these questions, there is no time like the present to step up your compliance. (And as always, Warren & Hays can help.)
There has been significant public dialogue about “street harassment” — men stopping women on the street to ogle, cat call, grope, or worse. The website Stop Street Harassment details cases of such harassment from around the world, as well as strategies to combat it. The premise is that this type of conduct is harmful to women, both from a safety standpoint and in terms of their emotional well-being. However, it is largely trivialized; women are expected to take it as a compliment or to simply ignore it.
In a recent article entitled Sexual Harassment During Commute Hurts Performance at Work, Holly Kearl, author of Stop Street Harassment: Making Public Places Safe and Welcoming For Women, makes a convincing case that commuter harassment is something employers should take note of. As the title suggests, Kearl posits — based on her interviews of more than 800 women — that commuter harassment negatively impacts an employee’s ability to perform at work and contributes to absenteeism and even turnover. Women who are harassed on their way to work may find themselves upset and distracted throughout the day. Obviously, then, their ability to give 100% to their job duties is diminished.
Employers do not have a legal duty to protect employees from harassment experienced coming to or going from work. And, in my view, employers cannot and should not try to address every source of employees’ stress in an effort to increase job-related focus and productivity. But, Kearl does suggest some simple strategies proactive employers might want to consider. Offering self-defense training, for example, could be an easy way to increase feelings of security for female employees. Coordinating commuter groups, or carpools, is another. These ideas are cheap or free, and can increase employee loyalty by demonstrating an employer’s commitment to keeping its workforce safe.
My friend and colleague Allison West, Esq., SPHR is conducting a free webinar Thursday July 15, along with Lynn Lieber, CEO of Workplace Answers. The webinar, Bullying and the Bottom Line: The Hidden Costs of Workplace Aggression, will address the problem of workplace bullying, as well as practical tools to combat it. Click on the link above to register.
We’ve blogged about bullying before. And while bullying is not illegal per se (though some states are trying to make it so), workplace bullies can create a number of legal headaches for employers, ranging from claims of harassment to constructive discharge, increased absenteeism and decreased morale. If you find yourself dealing with these issues, or just wanting to be proactive, tune in to what promises to be an excellent hour of information and strategies.
Late last year, former Washington Times editorial page editor Richard Miniter filed an EEOC charge against the newspaper. He complained of (among other things) religious discrimination, stating he had been forced to attend a Unification Church religious ceremony that he found “creepy.” The ceremony allegedly culminated in a mass wedding conducted by the Church’s leader, Reverend Sun Myung Moon. According to Miniter, newspaper executives told him of other employees whose careers had skyrocketed after converting and becoming followers of the Unification Church.
The allegations in this case raise the question “what were they thinking?” It should go without saying that a secular employer should never introduce its religious views into the workplace, let alone force employees to attend a religious ceremony. Some basic, bare-bones anti-discrimination training would have prevented this alleged conduct that, without a doubt, runs afoul of Title VII.
Reverend Moon
Like everyone else in Cleveland, I am sorely disappointed that LeBron James decided to join the Miami Heat. I too have been extremely put off by the media circus James created surrounding his choice, culminating in the one-hour ESPN special last night, The Decision. But (and I am guessing this is where I depart from many of my local friends and colleagues), I was also put off by Cavaliers owner Dan Gilbert’s letter to “Cleveland, All of Northeast Ohio and Cleveland Cavaliers Supporters Wherever You May Be Tonight,” which appeared in this morning’s Plain Dealer.
Gilbert characterizes LeBron’s decision as a “cowardly betrayal,” refers to his “shameful display of selfishness and betrayal,” and declares that James will take the supposed Cleveland curse – which he refers to as the “dreaded spell and bad karma” – to Miami. He also decries the “several day, narcissistic, self-promotional build-up.” He then goes on to promise Cavaliers fans that Cleveland will win an NBA championship before James does.
Why so much negativity? Why not just say he regrets Lebron’s choice and the manner in which he made it and then go on to talk about all the great things the Cavs will do anyway? That would have been a classier response, in my view. Especially since Gilbert is not just another fan, but the owner.
Third party observers (i.e., the fans), should be free to say what they think. But employers should exercise caution when dealing with a departing employee. Don’t bad mouth the employee; it always makes you look bad. Be forward, not backward, looking. Talk about what’s to come, get employees excited about what lies ahead. Gilbert did the latter, and I commend him for that.
We’ve blogged before about why employers should consider adopting a social media policy. The recent firing of CNN senior Middle East editor Octavia Nasr provides another reason.
Nasr posted a note on Twitter last weekend concerning the death of a Lebanese cleric considered instrumental in the formation of Hezbollah, an organization designated by the U.S. as a terrorist group. The offending tweet read “[s]ad to hear of the passing of Sayyed Mohammed Hussein Fadlallah. One of Hezbollah’s giants I respect a lot.” Public reaction was swift and negative. Nasr explained she was referring to Fadlallah’s support of women’s rights (he had spoken out against “honor killings”), not his terrorist links. She also released a statement that she had “learned a good lesson on why 140 characters should not be used to comment on controversial or sensitive issues,” such as Middle East politics.
But according to CNN, the damage was done. Nasr was fired the next day. In a written statement, her bosses explained “we believe that her credibility in her position as a senior editor for Middle Eastern affairs has been compromised going forward.”
What can employers learn from this recent example of what has been dubbed “twittercide?” First, they should expect to confront, more and more, the intersection of the workplace and social media. Second, they should reach consensus on how to deal with employees using social media outlets to express their views on work-related matters. For example, are any topics off-limits? What are they? Third, to the extent they have expectations in this regard, they should develop and then communicate the rules.
Yesterday I blogged about a recent case wherein the Fourth Circuit court of appeals rejected a defense of “I harass men and women alike, so it wasn’t harassment ‘based on sex.’” In response to the post, I received an email about another case involving essentially the same defense (thanks to Ross Runkel, Editor of LawMemo, Inc.). The case, Alvarez v. Royal Atlantic Developers, Inc., decided by the Eleventh Circuit on July 2, 2010, demonstrates that given the right set of facts, the equal opportunity jerk defense can win the day.
In Alvarez, the plaintiff sued for national origin discrimination and retaliation. Her retaliation claim and the court’s treatment of it may warrant another blog. But for today, I’d like to discuss the discrimination claim. Ms. Alvarez was terminated from her controller job because she did not meet the impossibly high standards set by her boss. The court referred to the “Vince Lombardi Rule” — namely that no player could accuse the famous coach of discrimination because he treated them all like dogs — in affirming summary judgment for the employer. Unfortunately for Ms. Alvarez, her boss was the Vince Lombardi of CFOs. The judicial opinion begins:
Some people are impossible to please. No one can meet their standards and no matter how hard anyone tries, they find fault, criticize, and are unhappy with the result. They demand continuous perfection, which is more than any human being can deliver. The evidence in this Title VII case indicates that [Alvarez's boss] is one of those people.
Because her boss treated everyone the same way, regardless of national origin, Ms. Alvarez’s discrimination claim could not stand. The court colorfully summarized this conclusion:
So far as job discrimination law is concerned, Heidi was within her rights to insist on a controller who could whip the company’s books into shape overnight while accommodating her own prickly personality and performing every task perfectly, even if there was little or no chance she would ever find such a miracle worker.
Despite the Alvarez decision, I would caution employers who maintain Vince Lombardi-types in their ranks. Bad bosses are never good for employee relations and productivity, even if they can squeak by summary judgment in a discrimination case.
You’ve most likely heard of the equal opportunity jerk defense. While it is not a litigator’s favorite, it has been known to work. The defense basically goes like this: yes, my client the employer was a jerk, and said and did some really inappropriate and stupid things. But, he (or she) was a jerk to everyone, not just the plaintiff, who happens to be . Therefore, we should not be held liable.
Earlier this month, the Fourth Circuit rejected such a defense in a sexual harassment case. EEOC v. Fairbrook Medical Clinic. The alleged harasser, who happened to be the sole owner of the employer medical clinic (see the Ohio Employer’s Law Blog post on this facet of the case, as well as for some of the more egregious comments), was an incredibly crude individual who frequently engaged in vulgar workplace banter with both men and women. Therefore, the employer argued, the behavior did not constitute harassment “based on sex.” Not so fast, according to the court.
While it was true that the owner made sexually offensive remarks to anyone who within earshot, the comments he directed towards the plaintiff, a doctor in the clinic, were female-specific and therefore “based on sex” under Title VII. For example, he referred to her post-pregnancy sex life and made comments about breast feeding.
The employer also tried to defend the suit by claiming that because the work environment was a medical clinic, looser standards should apply for two reasons. First, the tension inherent in a medical setting is released by the use of “off-color humor.” Second, the work itself involves the human anatomy, and so discussions about body parts are copacetic. The court rejected these creative arguments as well.
This case reminds employers of the need to emphasize respect in the workplace. This simple concept, which should be part of your harassment and discrimination training, can go a long way to increasing workplace harmony and decreasing litigation risks.
In April, Arizona passed an extremely tough immigration law that garnered a lot of national attention. The law makes it a crime for immigrants not to carry immigration documents with them at all times, and requires police to question anyone they suspect of being in the country illegally. It has generated a lot of outrage, as opponents call it an open invitation for harassment and discrimination against Hispanics and other minority groups. Even President Obama weighed in, sharply criticizing the law, though it is highly unusual for a president to weigh in publicly on state legislation. The law, according to Obama, threatens “to undermine basic notions of fairness that we cherish as Americans, as well as the trust between police and our communities that is so crucial to keeping us safe.”
What does this have to do with the workplace? The topic of immigration reform is politically “hot” now, in large part due to the spotlight placed on the Arizona law. It is likely to find its way into workplace banter. This can often take the form of risky conversations about national origin and race that can be offensive to some workers.
Employees are entitled to their political opinions, to be sure. But when expressing them at work intersects with protected categories under the law, employers should take heed. Be proactive and train managers and employees on appropriate workplace speech, as it relates to harassment and discrimination laws.
On June 22, 2010, the Department of Labor issued an interpretation of of the definition of “son or daughter” under the FMLA. The DOL gave the term “parent” an expansive view, going beyond legal or biological relationships. Thus, any employee who assumes the role of caring for a child is a “parent” under the statute and as such is entitled to leave to care for that child. Secretary of Labor Hilda Solis made the impact of the interpretation clear, stating “All families, including LGBT (lesbian-gay-bisexual-transgender) families, are protected by the FMLA.”
According to the DOL, if an employer has a question about an employee’s entitlement to parental leave under the FMLA, the employer may require documentation or a statement to the effect that a family relationship exists. A brief written statement is enough to trigger FMLA protection.
In an informal discussion letter released on March 29, 2010, the EEOC opined that setting an educational requirement for a particular job can be discriminatory. If such a requirement has a disparate impact on minority candidates, the employer would need to show it was “job-related and consistent with business necessity” and that no equally effective alternative selection procedure exists. This is a pretty high standard to meet.
Before setting educational requirements for jobs, employers should ask themselves whether the stated degree is really necessary to perform the job. In many instances, prior job experience or training can be just as good. A surefire way not to run afoul of the EEOC’s position on this issue is to state the desired degree and then to qualify it with “or related experience/training.”
Last September, I blogged about a case wherein an Ohio appellate court ruled that all employees are entitled to a “reasonable” amount of maternity leave, regardless of the length of their tenure. Yesterday, the Ohio Supreme Court reversed that case.
In McFee v. Nursing Management Care of America, the employer had a leave of absence policy that included a length-of-service requirement. It denied the plaintiff’s request for maternity leave, based on the fact that she had not yet worked for the employer for the requisite period. When the plaintiff took the time off anyway, she was terminated. The termination did not run afoul of Ohio’s anti-discrimination laws, according to the court.
The court held that employers do not have a legal obligation to provide maternity leave. But if they provide leaves of absence, they must do so in a “pregnancy-neutral” manner. Pregnant employees must be treated the same — no better, no worse — than other employees requiring leaves. The bottom line: a length-of-service requirement in a leave policy is perfectly legal, so long as it is applied consistently.
If you have questions about your maternity leave and wish to make changes in accordance with this new ruling, consult with counsel or your HR expert.
The Americans with Disabilities Act (ADA) Amendments Act of 2008 broadened the definition of being “regarded as” having a disability. Accordingly, employers need to take extra care not to inadvertently step into a “regarded as” claim by making statements indicating they perceive an individual as disabled.
One common trap for the unwary employer is discussions with employees concerning its employee assistance program (EAP). Many employers offer EAPs, wherein employees may seek counseling or other assistance for issues ranging from substance abuse to emotional or behavioral problems to simple stress management. It can be a wonderful resource for employees. The key for employers is making sure they avoid making reference to potential mental or physical disabilities.
Supervisors can, and sometimes should, remind employees of the availability of the EAP. They can refer to the EAP as a resource for helping employees solve workplace or other problems. But they should not get any more specific than that (don’t say, e.g., “the EAP can help you get a handle on your depression”).
Supervisory training can be an excellent way to teach the do’s and don’ts of navigating the ADA in its expanded form. Stay tuned for another upcoming post on dealing with the accommodation process.
Most employees of private companies understand that they should not have an expectation of privacy on company-issued mobile devices or computers, and most companies have policies reminding employees of the company’s right to monitor communications on its systems. The U.S. Supreme Court has now made it clear in City of Ontario v. Quon, that regardless of the employee’s expectation of privacy, an employer’s search of an employee’s property at work is reasonable if the search is “justified at its inception” and “reasonable in scope.” In Quon, a former SWAT team member for the City of Ontario, California sued the City for reviewing his unusually high number of personal communications on his work-issued pager, most of which were sexual in nature. Quon argued that his employer’s search violated his constitutional rights. In its first decision considering the privacy protections applied to text messages, the U.S. Supreme Court disagreed.
What does this mean for employers?
- Update your policies to specifically address text messaging, the use of company-issued electronic devices, and the use of social networking sites both during work hours and while off-duty. The policy should specifically state that employees’ messaging and communications on electronic devices issued by the company are subject to monitoring, and employees have no expectation of privacy in the use of such devices.
- Make sure that your practices are consistent with the policy. One of the questions in the Quon case was whether a supervisor overrode the policy by promising not to monitor the pager use. Supervisors and employees must be trained not to make statements or promises that contradict the written policy.
It’s nice when a court decision affirms common sense. The Seventh Circuit recently did just that in Everroad v. Scott Truck Sys., Inc. Following her termination for insubordination, the plaintiff sued, alleging she had been subjected to age and gender discrimination, as well as retaliation. Both the trial and appellate courts found for the employer.
The evidence showed that the plaintiff engaged in several verbal skirmishes with co-workers and customers. The coup de grace was her telling her bosses they were “nuts, crazy, insane, and sick” and that the co-worker with whom she’d had a problem was a “f-word b-word”. The employer said enough is enough and terminated her employment.
Fair enough, said the courts. The Seventh Circuit held that being insubordinate is inconsistent with meeting the legitimate expectations of the employer. Furthermore, terminating someone for insubordination constitutes a “legitimate, nondiscriminatory reason” sufficient to overcome a prima facie case of discrimination.
While there are a lot of legal rules to navigate in today’s workplace, remember that you are still the boss and you don’t have to tolerate abusive employee behavior.
Earlier this month, a cashier at Target was shot to death at work by her ex-boyfriend. Sadly, this story is not unique. Earlier this year, a worker was killed when her ex-boyfriend opened fire in a Duke University Health Systems clinic. And just over a year ago, an estranged husband went to a nursing home looking for his wife, who worked there, and killed eight people in a shooting rampage. One obvious reason the workplace is a target for such violence is because perpetrators generally know when their victims will be at work.
So what is an employer to do? According to the director of Peace at Work, a non-profit dedicated to preventing workplace violence,the key is to create a culture where employees feel safe to report concerns about potential violence. Most victims know they are in danger. But many are afraid to come forward at work, for fear of being fired or suffering some other negative job consequence.
One proactive step employers can take is to adopt some kind of policy whereby employees are encouraged to report concerns of potential violence. When faced with such reports, employers can take steps to beef up security measures.
In addition to such a commonsense approach, many states have laws requiring employers to accommodate victims of domestic violence by providing leaves of absence, modifying schedules to deal with the aftermath of incidents of domestic violence, and the like. Connecticut just passed such a law. And as I blogged about last year, Ohio has such a law pending in the state legislature. We will keep you posted on its status.
Creditworthiness is not protected under the civil rights laws, but it may serve as a basis for a discrimination claim when used in making employment decisions. In an advisory opinion published in March 2010, the EEOC opined that if an employer’s use of credit information disproportionately excludes African-American and Hispanic candidates, the practice would be unlawful unless the employer could establish that the practice is needed for it to operate safely or efficiently. The EEOC relied on Title VII’s prohibition against employment practices that disproportionately screen out racial minorities, women, or another protected group, unless the practice is job related and consistent with business necessity.
Many employers routinely conduct credit checks as part of pre-employment screening. While the EEOC acknowledges that credit checks may be appropriate for certain positions, such as where an employee handles large amounts of cash, it cautions that the discrimination laws may be triggered in some instances.
State and federal legislatures are considering laws that may restrict the use of credit checks. Congress is currently considering H.R. 3149, titled the “Equal Employment for All Act,” which would amend the Fair Credit Reporting Act to prohibit employers from using a credit reports for either employment purposes or for taking an adverse action. For private employers, the only exception would be for employees in a in a supervisory, managerial, professional, or executive position at a financial institution. In the meantime, pprudent employers may want to develop a rationale for why credit checks are needed for particular positions.
On Monday, I blogged about the termination of Debrahlee Loranzana, who was allegedly fired from Citibank for being distractingly good-looking. According to recent reports, she now faces possible termination from her new employer, J.P. Morgan Chase. Chase is apparently threatening to terminate Loranzana for speaking out publicly against her former employer. Her public appearances, including the morning talk-show circuit, are said to unfairly bash the banking industry and allegedly violate Chase’s code of conduct.
Chase would be wise to slow down, consult with counsel, and consider the legal implications of firing Lorenzana for speaking out against her former employer. Firing an employee for what could be considered opposing sex discrimination smacks of retaliation. And we all know what juries think of employers who retaliate. Just recall the 2008 Cuyahoga County jury verdict of over 40 million for a single plaintiff alleging retaliation for opposing unlawful discrimination.
That is essentially the legal claim of Debrahlee Lorenzana, a la the Pantene shampoo commercials of the 1980’s. Lorenzana’s sex discrimination lawsuit arises from the termination of her employment at a Citigroup branch in Manhattan. She claims she was told that her male colleagues couldn’t concentrate on their work when she was around, because she was too sexy. Lorenzana has been described as Jennifer Lopez meets Jessica Simpson meets Audrey Hepburn. In other words, va va va voom.
The issue does not appear to be that Lorenzana dressed inappropriately. She donned turtlenecks, business-style pants, and pencils skirts, not too-short minis or midriff baring tanks. The problem was, according to her lawyer, how she looked in these clothes. To sum it up, too good. As would be expected, the late night shows and tabloids have gotten a lot of mileage out of this story. Even Forbes magazine has weighed in. Some mock Lorenzana for complaining about being too beautiful. Others express upset that she was treated as a sexual object as opposed to a professional. Regardless of where your sympathies lie, the case does raise some interesting issues for us employment law/HR types.
The obvious legal question is does firing someone for looking too sexy amount to sex discrimination. In my view, it could. Unless the employer is also sizing up the attractiveness of its male employees and sifting out the hotties, there is clearly something gender-specific going on. Legal merits aside, it strikes me as exceedingly lacking in professionalism for an employer to focus more on what an employee looks like than on her job-related performance.
Management 101 informs employers to always focus on job-related performance. Perhaps the managers at Citigroup could use a refresher course.
Back in February, we blogged about the second case heard by the Supreme Court in the past couple of years concerning the disparate impact of a written exam on black firefighters. In Lewis v. City of Chicago, the plaintiffs scored high enough on the exam to be deemed “qualified,” yet they were denied hire in lieu of their (mostly white) competitors whose scores landed them the label “well qualified.” The district court ruled in favor of the black firefighters, but the 7th Circuit reversed, finding the lawsuit untimely.
On May 24, 2010, the Supreme Court revived the firefighters’ disparate impact claim in a unanimous decision. While the hiring exam was adopted outside the statute of limitations period, in 1996, its effects were felt each time the results were used to make hiring decisions.
Employers who use hiring or promotional exams would be wise to review them and their impact, regardless of how long ago and under whose watch the exams were adopted.
So far, the courts have responded with a resounding no. Most recently, the Oregon Supreme Court held that an employer can fire a worker for using medical marijuana, even if he is legally authorized by the state to use. In Emerald Steel Fabricators v. Bureau of Labor and Industries, John Doe argued that he was disabled within the meaning of Oregon law and that Emerald Steel failed to accommodate his disability. Doe suffered from a debilitating medical condition for which marijuana was prescribed to relieve symptoms. Emerald hired Doe as a temporary worker and wanted to hire him full-time. Knowing that he would have to take a drug test for a full-time position, Doe explained his condition and medical marijuana use to his boss, and was fired shortly thereafter.
While fourteen states and the District of Columbia have passed laws legalizing the possession of marijuana for certain medical purposes, marijuana is still illegal under federal law, and courts have been hesitant to force employers to tolerate illegal behavior. Even the most liberal states are coming down on the side of employers. But beware…California is considering a ballot initiative that would prohibit employers from firing a person who tests positive for marijuana if he has a medical marijuana card. In the meantime, employers need to be aware of the issue and keep an eye on legislation and litigation. 
On March 31, 2010, the White House held a forum on workplace flexibility, bringing together business owners, employees, management and labor representatives, and administration officials. Michelle Obama opened the forum, stating “flexible policies actually make employees more — not less — productive . . . .” The resounding theme was that employers should adopt flexible workplace policies to help their employees balance the demands of their home and work lives. To that end, the White House’s Office of Personnel and Management announced the establishment of a pilot program for federal employes based on a “results-only” work environment. In other words, “face time” at work will be irrelevant. Performance will be measured simply be the ability to get the job done. The how, when and where will be up to the employee.
In closing the forum, President Obama characterized workplace flexibility as an issue that affects the national economy. Employers should keep their eyes on this national dialogue. Whether or not they intend to adopt flexible work arrangement policies, either formally or informally, it promises to be a salient workplace issue. (See our prior post on SHRM’s position).
Last year’s Amendments to the American with Disabilities Act (“ADAAA”) were intended to expand the scope of the ADA, essentially making it easier for plaintiffs to establish that they have a disability. The Amendments provide a non-exhaustive list of “major life activities” (which, when substantially limited, give rise to a disability), including the operation of major bodily functions like the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, circulatory, respiratory, endocrine, reproductive functions, hemic, lymphatic, musculoskeletal, special sense organs and skin, genitourinary, and cardiovascular.
In one of the first reported cases applying the ADAAA, which took effect on Jan. 1, 2009, a federal district court in Illinois held in Horgan v. Simmons that an employee who was fired after disclosing his HIV-positive status to the president of his company could pursue claims for discrimination and impermissible medical inquiry. Citing the EEOC’s proposed regulations to implement the amendments, the court held that HIV substantially limits a major life activity—the function of the immune system—and therefore constitutes a disability under the ADA. The court also held that the employer’s inquiry into the plaintiff’s medical status despite plaintiff’s repeated assurances that nothing was affecting his ability to work was an “impermissible medical inquiry” under the ADAAA, which prohibits “inquiries of an employee as to whether the employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.”
The decision is a departure from earlier decisions, where courts had dismissed HIV discrimination claims by otherwise healthy men who could not show that their HIV infection had actually substantially limited one or more of their major life activities. The amendments make clear that the immune system function is a “major life activity.” Managers and supervisors should be aware of the expanded scope of the ADAAA, and trained on best practices in handling employees with potential disabilities. 
Executive Order 13496 provides that employees of government contractors and subcontractors must be informed of their rights to organize and form unions. The Department of Labor has issued final regulations implementing this Order. The regulations mandate that government contractors post an Employee Rights Notice. The Notice lists the basic rights under the National Labor Relations Act and tells employees how to register complaints if they believe their employer is interfering with those rights.
The Notice must be posted in a conspicuous place by June 21, 2010, when the regulations go into effect.
As we previously cautioned, unpaid internships can run afoul of the Fair Labor Standards Act, and the Department of Labor is stepping up enforcement efforts as more college grads are offereing their services for free in a tough job market.
The issue is whether the intern should be considered an “employee” under the FLSA and therefore subject to wage and hour laws like overtime and minimum wage. To aid employers in making this determination, the DOL recently issued Fact Sheet #71: Internship Programs Under the Fair Labor Standards Act, which sets forth 6 criteria employers must apply to determine whether an intern should in fact by paid as an employee:
- The internship, even though it includes actual operation of the facilities of the employer, is similar to training that would be given in an educational environment;
- The internship experience is for the benefit of the intern;
- The intern does not displace regular employees, but works under close supervision of existing staff;
- The employer derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
- The intern is not necessarily entitled to a job at the conclusion of the internship; and
- The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.
If you are uncertain as to whether the criteria are met, keep in mind that the DOL defines the employment relationship “broadly.” 
Employers can take adverse action against difficult employees even when they
fall within a protected class, according to a recent decision by the U.S. Court of Appeals for the Sixth Circuit. In Viergutz v. Lucent Technologies, Inc., the court held that Lucent had a legitimate, non-discriminatory reason for refusing to re-hire Mr. Viergutz due to his “bad reputation” and his inability to get along with others. Dismissing Mr. Viergutz’s claims for age discrimination and harassment, the court relied on the Affidavit of the hiring manager stating that she did not interview Mr. Viergutz because she knew from other managers that he had a poor reputation and needed to be closely supervised.
Lucent could not have prevailed if it weren’t for its solid documentation of both Mr. Viergutz’s problems with co-workers and the fact he wasn’t interviewed because of these issues. Of course, documentation is especially important when taking adverse action against a member of a protected class. The point being that an employer’s hand is not tied when dealing with a protected employee so long as managers understand and adhere to best practices in the hiring and performance management processes.
The EEOC is seeing the first wave of claims under GINA. Title II of GINA, which went into effect in November, prohibits using genetic information in making employment decisions, restricts acquisition of genetic information by employers, and strictly limits its disclosure. Title I of GINA, which addresses the use of genetic information in health insurance, goes into full force at the end of May.
To date, the EEOC has received about 80 GINA-related claims. In one case, a Connecticut woman, Pamela Fink, has alleged that her employer violated the law when she was terminated after undergoing a preventive double mastectomy. The complaint states that Ms. Fink received consistently favorable performance reviews as a director of public relations and marketing communications at a Stamford, Connecticut-based employer. After learning she tested positive for BRCA2, the breast cancer Type 2 susceptibility protein, Ms. Fink took a medical leave to have a preventive double mastectomy last October. In January, the day before she was to have a second and final surgery related to her double mastectomy, she was given a midyear performance review that was “negative and scathing,” according to the complaint. In March, her employment was terminated and she was told her position had been eliminated. Ms. Fink claims the dramatic shift in her standing at work resulted from her revelation that she had tested positive for the BRCA2 gene. Ms. Fink said she told her employers about her genetic testing in August — shortly after her positive performance review and about two months before she had a double mastectomy as a preventative measure. When she returned from medical leave, that’s when her responsibilities began slipping away and the assessment of her work went from glowing to negative.
Employers need to make sure that their discrimination policies are updated to include genetic information. We also suggest reviewing all potential sources of genetic information, including hiring practices, employee screenings, wellness programs, and health insurance enrollment practices. A particular challenge for employers is what to do when genetic information is volunteered. One employment lawyer warns that employers have to be careful of being “set up” by employees volunteering genetic information and then alleging that was the cause of a subsequent adverse job action. While no one predicts that GINA will have the breadth or effect of other discrimination laws like Title VII of the Civil Rights Act, the ADA, or ADEA, employers must be primed for claims alleging GINA violations.
Last month, a federal appeals court sent a case that had been dismissed in the employer’s favor back to court for a jury trial. In Colwell v. Rite Aid Corp., the Third Circuit Court of Appeals reversed a grant of summary judgment on an ADA failure to accommodate claim. Ms. Colwell, a cashier at the drug store, typically worked an evening shift. Several months into her employment, she was diagnosed with a retinal condition that eventually left her blind in one eye. Therefore, she requested her shift be changed to daytime hours, as she could no longer safely drive at night. Her supervisor denied this request, claiming to do so would be unfair to other employees with more seniority. Ms. Colwell eventually quit, stating in her resignation letter that she had been treated unfairly. She received no response. Thereafter, she sued for (among other things), a failure to accommodate under the ADA.
The district court granted Rite Aid summary judgment, holding that the duty to accommodate did not extend beyond the four corners of the workplace. Since Ms. Colwell could perform her actual job duties without an accommodation, it reasoned, there was no failure to accommodate. Not so, according to the Third Circuit. The duty to reasonably accommodate can extend to an employee’s commute as well.
Two things about this case strike me as important for employers. First, be very, very careful when it comes to responding to requests for accommodation. Make sure supervisors understand how to spot such requests, and to pass them up the chain-of-command so they may be adequately analyzed and reviewed. Second, when an employee states in a resignation letter that she has been treated unfairly, don’t ignore it! Get counsel involved early. Doing so may avoid the cost and headache of a full-blown lawsuit later on.
If so, pay attention to harassment issues. The EEOC is! In a press release issued on May 5, 2010, the agency announced that Cleveland-based Everdry Marketing and Management, Inc. paid over $500,000 in damages and interest to a handful of mostly teenage victims of sexual harassment.
The case was originally filed as part of the EEOC’s Youth@Work Initiative, aimed at educating young people about their workplace rights. Employers should take heed of this example. If you plan on hiring teens, double check to make sure your harassment prevention plan is firmly in place. This includes having an appropriate policy and educating workers and managers on all aspects of the policy (including to whom to complain if a situation arises).
President Obama announced the nomination of Elena Kagan to the United States Supreme Court this morning. Ms. Kagan is the Solicitor General. If confirmed by the Senate, she would become the third woman on the Court, as well as its youngest member, at age 50. Obama described her as “an acclaimed legal scholar with a rich understanding of constitutional law.” Ms. Kagan is the first nominee since the early 1970’s to never have served as a judge. She was the Dean of Harvard Law School for many years, worked as a domestic policy advisor during the Clinton administration, and also worked for Vice President Joe Biden.
Reactions to Ms. Kagan’s nomination are somewhat mixed. Some liberals are concerned that she would be a far less progressive thinker than Justice John Paul Stevens, whom she would replace. Some conservatives are already labeling her as “anti-military,” referring to her attempt to ban military recruitment at Harvard during her tenure there, as a means of protesting the military’s “don’t ask don’t tell” policy towards gays. Nonetheless, many political analysts predict a relatively smooth confirmation process.
The dearth of a public record of Ms. Kagan’s judicial thinking will lead to increasing speculation as the nomination process unfolds. What would a Justice Kagan mean in the world of employment law? This is certainly an open question, and one the pundits will certainly attempt to answer in the coming weeks, as the battle lines are drawn in what promises to be a highly politicized and media-worthy issue. Stay tuned!
Following up on last week’s post about recent legislative efforts to prevent misclassification of employees as independent contractors, employers should be aware that the U.S. Department of Labor has stepped up efforts to enforce the issue in conjunction with the IRS’s plan to audit employment tax payments at 6,000 randomly selected companies over a three-year period. The initiative is designed to address a perceived tax shortfall in the collection of employment taxes due primarily to misclassification of employees as independent contractors. The IRS provides some guidance on classifying independent contractors online at: http://www.irs.gov/businesses/small/article/0,,id=99921,00.html
Additionally, the Labor Department has added 250 new inspectors (a 1/3 staff increase) as part of a broader crackdown on companies that misclassify workers as “exempt” from FLSA wage and hour laws like overtime and minimum wage. At the same time, plaintiffs lawyers are targeting companies in class actions on a range of wage and hour issues including worker misclassification, overtime and minimum wage, rest periods, and off-the-clock (the blurring of work time and personal time).
We can’t overemphasize the importance of properly classifying employees!
On March 16, 2010, an Ohio court of appeals affirmed summary judgment for an employer in an age discrimination case. In Wigglesworth v. Mettler Toledo Int’l, the plaintiff was terminated for performance issues. He pointed to the employer’s disregard of its own progressive discipline policy, as well as positive comments about some of his work skills in his performance reviews, as evidence of pretext. Not enough, said the court.
With respect to the plaintiff’s performance reviews, the court stated “the fact that an employee does some things well does not mean that any reason given for his firing is a pretext for discrimination.” With respect to the lack of progressive discipline, the court noted that the employer’s policy explicitly stated it was free to “at any time modify, withdraw, or disregard its policies, including its progressive discipline policy.” This language, coupled with the lack of evidence that the employer applied the policy more favorably to younger employees, convinced the court to toss the plaintiff’s case.
This case carries a couple of important lessons for employers. First, make sure your policies contain language providing you with flexibility, especially if you have a progressive discipline policy. Second, make sure your supervisors know how to manage performance. The supervisor in Wigglesworth got it right: his written reviews of the plaintiff’s performance were consistent with his stated reason for termination.
Last month, a federal court in Tennessee held that an employer’s failure to train its workforce on its harassment policy prevented it from utilizing the affirmative defense in a sexual harassment case. In Bishop v. Woodbury Clinical Laboratory, the plaintiff claimed her supervisor harassed by making unwanted sexual advances and comments. She conceded she never complained to anyone about the alleged harassment. The employer tried to have the case thrown out on the basis of a widely-used affirmative defense known as the Faragher/Ellerth defense (named after the United States Supreme Court cases that articulated it). Under the Faragher/Ellerth defense, the employer needed to show (1) it exercised “reasonable care” to prevent/correct any sexual harassment and (2) the plaintiff unreasonably failed to take advantage of its corrective/preventive measures.
The employer in Bishop had an anti-harassment policy and had disseminated it to all employees, including the plaintiff. The policy even spelled out what employees should do if they had concerns about harassment. However, the employer never trained its supervisors and employees on the policy, and therefore could not meet the first prong of the Faragher/Ellerth defense. The case will now proceed to a jury. Whatever the ultimate outcome, the employer faces an expensive legal battle.
We’ve said it before, but it bears repeating. TRAIN your employees on your harassment policy! (Warren & Hays can help).
We’ve blogged before about the risk of misclassifying employees as independent contractors. Today’s Plain Dealer highlights the growing concern with this prevalent practice, which results in employers avoiding paying benefits, taxes, and workers’ compensation. U.S. Senator Sherrod Brown recently introduced a Senate bill to strengthen labor laws in addressing this issue. And Secretary of State Richard Cordray stated he has over 800 cases pending against employers across the state for alleged misclassifying.
If your business uses “independent contractors,” we advise you check with experienced labor and employment counsel to ensure your classification holds up in light of IRS guidance and judicial interpretations.
We counsel employers to leave their biases at the door when making employment decisions, be it recruiting, discipline, promotion or termination. But how reasonable is that instruction? Not very, according to a number of tests and surveys that show that each one of us carries biases and prejudices, many of which may be unnoticed, that inevitably play a role in our decisions.
For example, a 2003 study by sociologist Devah Pager measured the effect of a criminal record on a job search. Ms. Pager sent pairs of young, well-groomed, well-spoken college men with identical resumes to apply for 350 advertised entry-level jobs in Milwaukee. The only difference was that one said he had served an 18-month prison sentence for cocaine possession. Two teams were black, two white. A telephone survey of the same employers followed. For her black testers, the callback rate was 5 percent if they had a criminal record and 14 percent if they did not. For whites, it was 17 percent with a criminal record and 34 percent without. My guess is that most of the employers did not consider themselves racist.
Similarly, judgments based on a person’s appearance generally reveal prejudices about age, gender, and disability. This was precisely the case with Abercrombie & Fitch, which paid $50 million to settle the EEOC’s case resulting from Abercrombie’s “restrictive marketing image” (i.e. pretty young white people) and recruiting and hiring practices that excluded minorities and women. Also as part of the settlement, Abercrombie agreed to ensure that its marketing materials “reflect diversity.”
While it may be impossible to completely abolish our biases, being aware of the existence and extent of our own prejudices can weaken their influence on our decisions. Take a look at your own biases and prejudices by taking a test at Harvard University’s Project Implicit: https://implicit.harvard.edu/implicit/demo/takeatest.html
You may be surprised by the results!
The Department of Labor recently obtained nearly $4 million in back wages for gas station employees in New Jersey. Raceway Petroleum and its individual owner will pay $1.95 million in overtime compensation and $1.95 in liquidated damages to over 700 former and current employees. The judgment arises from a 2006 class action lawsuit filed by the DOL that alleged the gas station failed to keep accurate time records and failed to pay overtime for obviously non-exempt employees. Over twenty five current and former employees testified in a three week jury trial. In addition to its hefty financial obligation, Raceway must also provide extensive training on compliance under the FLSA.
This case highlights several important points for employers. First, the DOL means business when it comes to FLSA violations. In the words of Secretary of Labor Hilda Solis, this case “should send the message that the Labor Department will not tolerate employers that do not comply with the law in violation of worker rights.” Second, it is incumbent on employers to meticulously record hours worked. The failure to do so can be devastating. At trial, employees testified to working 100 hour weeks, and the employer had no means to disprove the testimony. Third, personal liability can attach to FLSA violations. Finally, wage and hour training should be a priority. Better to do it proactively than to be ordered to do it by a court.
For more thoughts on the state of wage and hour law and best practices in avoiding liability, take a look at Jon Hyman’s post yesterday on wage and hour audits.
“Sexting,” the practice of taking sexually explicit pictures and sending them to others, is a rapidly emerging workplace problem. Almost every employment lawyer has at least one case involving an employee sexting an inappropriate picture to a coworker. And since it rarely matters in the harassment context whether the PDA is personal or company-issued, it is a misconception for employees to think they can do whatever they want on their personal phones. We recently investigated a case where a male employee sexted a female coworker from his personal phone giving rise to a harassment claim. People drop their guard with texting because they think texting is a more casual form of communication than e-mail. Most employees realize now that e-mails don’t go away. They also should know texts can be pulled from a phone number for documentation in a harassment case.
What’s an employer to do? At the risk of sounding like a broken record – policy and training. Make sure your technology use and harassment policies address the issue, which should also be part of harassment training.
Earlier this year, the Eleventh Circuit court of appeals held that a non-disabled individual can sue a prospective employer for making an improper medical inquiry during the hiring process. In a case of first impression, the court joined a number of other circuits in permitting the plaintiff’s claim to proceed to a jury trial. (The Sixth Circuit, which covers Ohio, has not yet faced this issue).
In Harrison v. Benchmark Electronics Huntsville, the plaintiff was a temporary employee seeking a full-time position. He underwent a drug screening, which came back positive. In discussing the results with the company’s medical review officer (“MRO”), the plaintiff revealed he had epilepsy and treated his condition with prescribed barbituates. The MRO asked more questions, including how long the plaintiff had epilepsy, what type of medication he took, and in what dosages. This conversation occurred in front of the plaintiff’s supervisor, and he was subsequently denied regular employment.
The district court found the plaintiff’s medical condition did not constitute a “disability” under the ADA, and the appellate court did not take issue with this finding. The problem, according to the court, was the extent of the MRO’s questions about the plaintiff’s medical condition. He simply went too far, thereby running afoul of the ADA’s proscription against medical inquiries.
This case serves as a useful reminder to train all supervisors and HR professionals about the limits on what medical inquiries they may make of applicants and employees, whether or not they are disabled.
Last month, the Northern District of Ohio denied an employer’s motion for summary judgment in a disability discrimination case, permitting the plaintiff to proceed to a jury trial. Kathleen Maley, a long-term employee at EMH Regional Health Care Center, was terminated for sleeping on the job. According to Maley, though, she was merely resting her eyes so as to combat her periodic and debilitating migraine headaches. Maley stated she requested permission to shut her eyes from time to time as a reasonable accommodation, but her employer said no. EMH did offer to permit Maley to go home for the day when a migraine hit (using up her FMLA and sick time), but Maley did not like this accommodation.
In letting the case go to a jury trial, the court said Maley’s migraines could qualify as a disability under the law and that permitting her to rest her eyes periodically could have been a reasonable accommodation. The fact that EMH offered an alternative accommodation (e.g., sending her home for the day) did not alleviate its duty to accommodate. The court focused on an employer’s duty to engage in an “interactive process” with an employee when discerning the appropriate accommodation. EMH failed to do so here, and is now faced with the unenviable task of having to explain itself to a jury.
The take-away for employers is be careful when dealing with employees with potential disabilities. Remember the duty to engage in the interactive process in formulating a reasonable accommodation, and make sure supervisors understand this duty. If in doubt, call your lawyer!
Do you require or expect your employees to check email after hours or on weekends? If so, you could be liable for violations of the Fair Labor Standards Act’s (FLSA) overtime provisions. While exempt (generally managerial) employees are not entitled to overtime pay, nonexempt employees are, and that includes time spent checking email and voicemail. For example, a nonexempt employee who works a 40-hour workweek and spends an additional eight hours a week reading and replying to work emails is entitled to overtime for those additional eight hours. More employers are requiring employees in nonexempt positions to carry PDAs with the expectation that the employee will respond to pages, emails or calls outside of normal working hours. As a result, the issue is gaining attention from employees, plaintiffs lawyers, and the federal and state agencies that enforce wage and hour laws.
In a recent dispute between ABC News and the Writer’s Guild, three new ABC writers refused to sign ABC’s standard waiver stating that they would not be paid for checking their company-issued Blackberrys while off duty. The issue was resolved when ABC agreed to clarify its waiver to make clear that writers would be paid for any significant work while off duty, but not for merely checking messages. There are other potential solutions available to employers to mitigate the risks, including:
- Provide PDAs and remote computer access to exempt employees only
- Require prior written approval for all overtime work
- Restrict after hour use of PDAs
Importantly, employers should review classifications, especially with respect to those employees required to carry PDAs; and implement policies governing the use of PDAs. Of course, overtime pay is not the only issue created by PDA use. Employers are facing liability as a result of employee texting (and sexting), social media use, driving while texting, and unlawful activities such as online gambling.
Last month, a federal appeals court held that an employer’s denial of an employee’s request to move her office could amount to illegal retaliation. In Lockridge v. University of Maine, the plaintiff professor sued the university for, among other things, retaliation. After filing a sex discrimination charge with the state anti-discrimination agency, she asked to move her office from a satellite building to the department’s main building. Her employer denied her request, and in doing so made a reference to the plaintiff’s “continuing legal issues.” The court held that the denial could be an adverse employment action under retaliation law.
The court’s pronouncement in this regard is striking for a number of reasons. First, it demonstrates that retaliation claims can be incredibly broad-based. Actions far short of firing can support such claims. Second, it reinforces that the law in this area is, in many instances, counterintuitive. Finally, it suggests that employers who do not train their supervisors on retaliation law do so at their own peril. Supervisors are on the front lines of their employers’ efforts to guard against lawsuits. Don’t send them into battle unarmed.
We have seen an unprecedented rise in EEOC (and related state agency) claims in the first few months of 2010, which will certainly result in a rise in employment-related litigation. In many cases, employers could have avoided the claims had they been more proactive in removing sources of conflict in the workplace, implementing and following progressive disciplinary programs, and resolving disputes at the onset.
In our experience, employers can head off claims and lawsuits by following some fairly simple (not necessarily easy) strategies:
- Review and update your employee handbook – recent updates should include FMLA revisions, ADA amendments, Lily Ledbetter Fair Pay Act of 2009, FLSA safe harbor language, Genetic Information Nondiscrimination Act of 2009.
- Provide honest and accurate reviews and evaluations – sugarcoating often leads to or exacerbates employment-related claims.
- Have a clear complaint procedure – have a process in place that easily allows employees to make complaints (consider a hot-line), train employees on the process, and educate managers on how to handle complaints.
- Audit HR functions – it is important to know what you don’t know.
- Watch the clock – make sure that non-exempt employees are not working overtime by checking voice mail and email after hours and on weekends.
- Follow a progressive disciplinary system – this is the best way to ensure consistency in discipline and discharge decisions.
While some of these strategies may seem like common sense, they are precisely the areas that are overlooked or ignored in times of belt tightening and cost cutting. Given the direct and indirect costs of defending employment claims, however, the cost of acting proactively is money well-spent. 
In 2009, retaliation claims were one of the most common types of charges filed with the EEOC. These increasingly popular and successful claims have a broad scope. Just how broad, you may wonder? In an upcoming series of blog posts, we’ll answer some specific questions in that regard.
For today, let’s assume you have a current employee who has filed an EEOC charge alleging some kind of discriminatory treatment. In the interest of a quick resolution, you’d like to settle the matter with a small monetary sum. As part of the settlement, can you ask the employee to terminate her employment?
Almost certainly not. Asking for a termination could look retaliatory. It could also be used as evidence of a retaliatory motive if, for some reason, the employee remains but is later terminated for some reason. It might seem like common sense to want to sever the employment relationship once relations have become so poor that the employer and employee have literally become adversaries. But if there is one true thing about retaliation law, it is that common sense often does not rule the day.
Check with experienced employment counsel before taking potentially adverse employment steps against someone who has filed an EEOC charge. Don’t make the mistake of many before you, being penny-wise but pound-foolish.
The Department of Labor is taking an aggressive look at unpaid internships. In recent years, as it has become harder and harder for college students to find paying work in their fields of choice, many have accepted unpaid internships, either to get a foot in the door or to round out their resumes. In the majority of cases, though, the employers that avail themselves of this free labor are breaking the law, according to the DOL. In response, the agency is stepping up enforcement nationwide.
According to the DOL’s acting director of the Wage and Hour division, “if you’re a for-profit employer or you want to pursue an internship with a for-profit employer, there aren’t going to be many circumstances where you can have an internship and not be paid and still be in compliance with the law.” While non-profits can avail themselves of unpaid labor in the form of volunteers, for-profit employers do not have this option, except in very narrow circumstances.
For unpaid internships to comply with wage and hour laws, they must meet established criteria. For example, the internship is supposed to be similar to the training provided in an academic or vocational setting. It is also not permitted to displace regular paid workers. And, the employer is to derive “no immediate advantage” from the intern’s work.
In increasing cases, internships do not come close to meeting these criteria. Some states, such as California and Oregon, have sought and obtained significant amounts of back pay for unpaid interns who they claim were really employees in disguise. Another significant problem with interns is that they are not protected by the employment discrimination laws. Thus, there have been legal disputes about whether an individual claiming harassment or the like was an intern or an employee.
If you are considering using unpaid internships over the coming summer months or at any time, consult with counsel to make sure you don’t run afoul of the law.
The EEOC has sued Lowe’s Home Centers in Tennessee for religious discrimination. The home improvement retailer denied a Baptist employee his request to not work Sundays in order to celebrate his Sabbath. According to the EEOC, the employee made two written requests for accommodations. Lowe’s ignored the requests for over two months and then denied them. Its explanation was that granting the requests could create a hardship for other employees who may desire not to work on Sundays. Not surprisingly, it is the EEOC’s position that this is not enough of a hardship to deny the requested accommodation.
The EEOC’s stance on the case is not altered by the fact the employee was not a Baptist when he was hired. He converted several years later and, according to the EEOC, is entitled to the accommodation regardless.
The duty to accommodate religious beliefs is a pretty hefty one, and one employers need to pay particular attention to. Managers should also receive training to understand their legal obligations in this regard. In a nutshell, if an employee requests not to work on a particular day for religious reasons, caution dictates granting the request or, at a minimum, consulting with counsel.
The Sixth Circuit recently held that an employer’s demand for a medical exam does not constitute an adverse employment action under the Americans With Disabilities Act (“ADA”) where the employer has legitimate safety concerns. In James v. Goodyear Tire & Rubber Co., the plaintiff suffered from multiple sclerosis. His condition got progressively worse, to the point where he had to hold on to machinery for support, co-workers had to help him perform his duties, and he needed to be driven between workstations. His employer insisted he get a medical exam to determine his fitness for duty. Rather than submit to the exam, the plaintiff retired and then sued under the ADA.
In assessing the plaintiff’s claim, the court concluded the employer’s actions fell under the “direct-threat” provision of the statute, which permits employers to assess whether and to what degree an employee poses a threat to his or her own safety, as well as the safety of others. In short, if there is good reason to believe an employee cannot safely perform the job, the employer may require a medical exam, without running afoul of the ADA.
While this case smacks of common sense, it is a noteworthy decision for employers, as common sense does not always carry the day when it comes to the ADA.
A couple of major employment/labor law developments happened in the last week, and I would like to thank my fellow blogger, Jon Hyman of the Ohio Employer’s Law Blog, for his timely recaps, which I summarize here (disclaimer: this is not my most original post, but it does contain some relevant and timely information for all you employment and labor law geeks out there, like myself).
Jon came out with a special, Sunday-edition post yesterday, wherein he chronicled President Obama’s recess appointment of attorney Craig Becker to the National Labor Relations Board. Becker’s appointment is expected to have far-reaching consequences for the NLRB, as his admittedly pro-union stance (Becker is the associate counsel of the Service Employees International Union, one of the most powerful unions in the country) is well-established. Expect lots of commentary in the coming weeks and months as this story develops.
In other news, the Supreme Court agreed to hear a case that will decide whether verbal complaints of violations under the Federal Labor Standards Act (“FLSA”) are covered by the statute’s anti-retaliation provisions. There is currently a circuit split, which the Court will resolve. A ruling that oral, unwritten complaints are protected would have significant consequences for employers, who would need to train all managers to appropriately respond to any such complaints.
Lastly, the Supreme Court heard oral arguments in another labor-related case, where the legality of decisions issued by a two-member NLRB over the past couple of years is at stake. Stay tuned for the Court’s outcomes.
On January 26, 2010, the U.S. Department of Transportation (DOT) announced a new prohibition against texting while driving for drivers of commercial vehicles, including buses. The rationale behind the prohibition is pretty common-sense: distracted driving causes more accidents. The empirically shown link between texting (or even talking on the phone) and crashing has caught the attention of many, including Oprah Winfrey, who has launched a “no phone zone” campaign that urges people to take a pledge vowing to never text or talk on cell phones while driving.
Some experts recommend that private employers adopt and disseminate a similar policy, using the DOT as a model. It’s something to consider, especially if employees drive as part of the job. Even for those who simply commute, though, the message can be “hey, we’re just trying to make sure you get home safely.” Warren & Hays can help draft such a policy.
Most employers know that when an employee complains about harassment, the employer must respond quickly and effectively. Usually this means conducting a “prompt and thorough” investigation and taking appropriate remedial measures. So when is this standard met? What does “too little too late” look like? The case of Watson v. Blue Circle provides a pretty good picture.
Lisa Watson was a concrete driver for Blue Circle for a number of years. She alleged she was subjected to harassment by co-workers including: being offered money for sex, touching her breasts and buttocks, displaying pornography openly, and directing sexual comments at her. Ms. Watson complained to her supervisor on numerous occasions. When she did, the evidence showed the supervisor talked to the alleged offenders and told them to stop with the “horseplay.” No discipline ever ensued, and the harassment continued. Eventually, though, Ms. Watson complained enough that the supervisor took action to stop the harassment. By then, though, the court decided that was too little, too late.
The case provides a cautionary tale to employers. Don’t responded casually when someone complains about harassment. Take all complaints (even ones in which you have doubts about their legitimacy), seriously.
Suppose you have an employee who belongs to a protected class (such as race), and you also have clients who belong to that same protected class. Before you assume that your employee can better relate to your clients based on similar backgrounds, etc., think again (or call your lawyer). A 2009 case illustrates the danger in making such race-based assumptions.
Pamela Altman, a black employee of the Illinois Department of Children and Family Services worked as a child-protection investigator. She sued her employer for race discrimination, claiming she was repeatedly assigned to investigate cases in predominantly black inner-city areas (the “projects”). The court agreed, and the case is now headed to a jury trial.
This is just the kind of “subtle” discrimination plaintiffs (and the EEOC) are increasingly pursuing. And the courts are receptive. When you train your managers on the anti-discrimination laws, make sure to include the law’s expanding and less-obvious forms of bias, such as this one.
I’ve been thinking about workplace investigations a lot this week. Probably because I’m in the middle of one and also working on some new training on best practices in conducting investigations. We’re all familiar with the adage “perception is reality,” the idea being that if things look a certain way to someone, even if they’re wrong, their view is entitled to some deference, or at least recognition. But in the world of workplace investigations, the investigator needs to take a more objective look.
Consider this hypothetical. An employee alleging some kind of unfair treatment recalls a meeting in which her supervisor swore at her. She recalls the exchange with much emotion, and unless she’s the next Meryl Streep, it seems pretty clear she fully believes her account. Her supervisor, however, tells an equally persuasive but contradictory story. She explains, and witnesses confirm, that the alleged profanity is simply not in her vocabulary. Must the investigator conclude someone is lying? Not necessarily.
When emotions run high in the workplace, and they usually do by the time a workplace investigation is underway, recollections can reflect an individual’s general perception. It is entirely possible that in the above scenario, the complainant truly believes her supervisor swore at her, even if no such thing occurred. The trick for the investigator is not to get bogged down in everyone’s varying perceptions, and instead to try to discern the “truth.” This can be a tricky proposition, to be sure. But experienced investigators can do a pretty good job in sifting through the facts.
Regardless of the investigation’s outcome, there is good news for employers. Even if the investigator makes a mistake (i.e., reaches the wrong factual conclusion), the employer will be protected from liability so long as the investigation conducted was fair, reasonable and thorough.
Last week, Representative Eric Massa (D-NY) resigned from Congress amidst allegations of sexual harassment, among other things (see the Ohio Employment Law Blog for a discussion on Massa’s shifting explanations and their relevance to employment law). The allegations involved Massa’s behavior towards a male staffer at a New Years Eve staff party/wedding reception. Massa admits he grabbed the staff member, tousled his hair, and made an inappropriate sexual comment. Massa is also alleged to have “tickled” him. A third party bystander complained to the House Ethics Committee, thereby initiating an investigation.
The media attention this story has received has been voluminous, ranging from the purely political to the somewhat humorous. In my view, the story highlights a couple of important points about harassment claims. First, harassment claims by males are indisputably on the rise and must be taken seriously. Employers should make sure when they train their managers on harassment, they take care to include harassment against males, whether it be male-on-male or female-on-male. Second, the fact that it was someone other than the alleged victim who made the complaint is noteworthy. In the courts (as well as to the House Ethics Committee), bystanders can make viable claims of harassment. So, even if the parties involved in the behavior are both consenting, that does not necessarily mean there is no harassment. This is another important point employers should ensure is made in harassment training.
I was just on a family vacation in Spain, and our last destination was the Mediterranean-touching, sun-drenched metropolis of Barcelona. It was a beautiful sight to behold, even though the sun hid from view throughout our stay, and it snowed. Not just a few flurries, but a bona fide good old-fashioned snow storm. As I shivered my way through the Boqueria, the famous outside food market, I silently cursed my ill-fated decision to pack sandals for the trip, and only sandals. I was indeed awed by the rows and rows of fresh fruit, vegetables, cheeses, nuts, herbs, candy, and just about any other type of food one can imagine, though I must admit my chattering teeth distracted me somewhat from the experience.
It wasn’t just me. Even the natives seemed out of sorts. Many carried umbrellas to protect themselves from the storm (and we Ohioans know umbrellas don’t really do any good in a snow storm). The buses shut down for the afternoon, as did the underground metro system. The city was decidedly unprepared for the sudden turn in the weather. (As it turns out, the storm was short-lived, and the sun was shining brightly as we boarded our plane to come home).
I take two points from my chilly Barcelona experience. They are equally apt when discussing trans-Atlantic traveling or managing employee relations in the workplace. First, be prepared. At a minimum, travelers should review the physical landscape before they leave (i.e., check the weather carefully). Similarly, HR professionals should understand the legal landscape in which they are operating, including staying up-to-date on recent legislative changes at the local, state and national level. Second, be adaptable to change. Travelers must have a go-with-the-flow mindset to best enhance their experiences abroad. So too with HR professionals in the workplace. Things come up, often quite unexpectedly, especially when you are dealing with something as tenuous as employee relations. Be flexible in your approach to handling workplace issues. Going with the flow does not always come easy to those of us who fit the “Type A” mold, but cultivating that ability can be priceless.
Last week a New York federal appeals court determined that while alcoholism can be considered a disability under the Americans with Disabilities Act (“ADA”), the impairment cannot protect an employee from termination if it affects his ability to show up for work. Bruce VandenBroek sued his former employer, claiming he was terminated because of his alcoholism and for taking medical leave to treat his alcoholism. The court in VandenBroek v. PSEG Power CT LLC disagreed, holding that where regular attendance is an essential job function, the Americans with Disabilities Act and the Family and Medical Leave Act should not shield an employee from termination when s/he is chronically absent from work.
Although regular attendance is an essential job function for most positions, the court noted that it was particularly important to this employee’s job because “reliable employee attendance was . . . essential to ensuring against a power outage or even an explosion.” Finding the employee failed to prove he was terminated for taking protected leave under the FMLA, the court further ruled he was terminated for violating the employer’s “no call/no show” policy.
Nevertheless, employers must act with caution when disciplining or terminating a disabled employee for attendance reasons, and be prepared to demonstrate the specific reasons regular and reliable attendance are essential to job performance. The EEOC offers guidance on this specific issue in “The Americans with Disabilities Act: Applying Performance and Conduct Standards to Employees with Disabilities.”
This also serves as a reminder of the importance of accurate job descriptions. If regular attendance is an essential job function, it should be included in the job description.
A significant loss in productivity. Some studies estimate that up to 50% of corporate email communications are non-business related, and are either spam or personal in nature. Frequently checking new email messages breaks concentration, changes focus, and elevates new email messages to the highest priority task regardless of what is, or should be, the actual highest priority task. The biggest problem appears to be the amount of time lost to reacting to new email messages. One study found that 70% of arriving emails were reacted to within 6 seconds. Once the email was addressed, it took an average employee 64 seconds to resume working at the same rate they were before the interruption. If an employee has set up the email application to check for email every 5 minutes then it is possible, if (s)he is a heavy user of email, that there could be 96 interruptions in a normal 8-hour working day, which is a substantial amount of time lost to business.
So what is an employer to do? There are several ways to recover this loss. Consider the following:
- Have email applications set up to check for email every 45 minutes (rather then every 5), reducing the number of possible interruptions;
- Turn off the new email alert dialogue box and email sound alerts;
- Train staff on effective and efficient use of email, such as setting email priority, email housekeeping with message rules, effective use of user groups, folders and address books;
- Make sure your technology use policy adequately and accurately communicates the company’s rules regarding email use.
A complete ban on using company email for personal reasons is typically unreasonable because it is difficult to monitor and virtually impossible to enforce; therefore efficient and effective use of email is critical.
Yesterday the U.S. Senate passed H.R. 4691, which extends the ARRA COBRA subsidy through March 31, 2010. Compliance assistance for employers will be available at http://www.dol.gov/ebsa/COBRA.html once the President signs the bill. We recommend employers become familiar with the most recent notice requirements.
Currently there are efforts in Congress to extend the benefits through June 30, 2010. We will keep you posted.
Retail giant Abercrombie & Fitch has had its share of discrimination-related smackdowns. In 2004, the EEOC sued Abercrombie for race discrimination arising out of its hiring practices. Abercrombie’s marketing and hiring strategy focused almost exclusively on good-looking white young men and women. The EEOC obtained a $50 million settlement with the store, as well as the store’s commitment to “diversify” its marketing and hiring efforts and train its employees on the anti-discrimination laws.
Last September, the EEOC filed a discrimination lawsuit against Abercrombie based on its failure to hire a young woman who wore a hijab, a religious headscarf. (We blogged about this case, the outcome of which is as of yet unknown).
Last week, the Council on American-Islamic Relations, one of the country’s largest Muslim civil rights organizations, filed an EEOC complaint against Abercrombie-owned Hollister, also a retail store. According to the complaint, nineteen year old Umme-Hani Kahn, a stockroom worker, was fired for refusing to take off her hijab. Kahn was told she could wear her hijab when she was hired last October, so long as it was white, gray, or blue, so as to conform with the store’s “looks” policy. But when a new district manager came to the store last month, Kahn was told wearing the hijab in any color violated the “looks” policy. When Kahn claimed she could not remove it due to her religious beliefs, she was fired, according to the complaint.
It surprises me that some employers continue to be completely confounded by the duty to accommodate religious beliefs. It’s not all that complicated, so long as employers take the time to know the general rules, and to train on them. Even basic anti-discrimination training can enable employers and their managers to at least spot potential legal issues. The lesson here is, in short, if an employee cites a religious belief as the basis for a specific appearance, whether it be a hijab, a yarmulka, a tattoo, a hairstyle, or anything else, check with counsel and go through a very careful analysis before firing that employee.
Last October, the EEOC sued California Psychiatric Transitions, Inc. (CPT), a mental health rehabilitation center, for sexual harassment. The lawsuit, which was filed in federal court under Title VII, alleged a supervisor had created a hostile working environment for several female employees over a number of years. The EEOC took great issue with CPT’s response to internal complaints by the women, calling it “wholly inadequate.” The response consisted of showing an anti-harassment videotape to its employees. Period. According to the EEOC, not only should CPT have conducted a thorough investigation, it should have trained its workforce, “and particularly its supervisors and managers, on their responsibility to stop harassment.” And, the training should have occurred as a matter of course, not simply as a result of a complaint. Finally, the training should have consisted of more than a videotape.
Without a doubt, the best type of training is live, interactive training conducted by experts (such as us). Not only do employers avail themselves of defenses in the event a harassment lawsuit ensues, they also stand a very good chance of averting such situations from arising in the first place.
Last June, in Ricci v. DeStafano, the United States Supreme Court ruled for white firefighters who sued the City of New Haven after it discarded a promotional test on which they scored highly, claiming the city’s concern about the test’s disparate impact on minority firefighters amounted to discrimination against the white firefighters. (See our blog on the topic). The case generated a tremendous amount of attention, as it highlighted the employer’s unenviable position between a rock and hard place: promote the high-scoring white firefighters and risk a disparate impact lawsuit by the minority firefighters, or discard the test and be sued by the white firefighters. In Ricci, the employer chose the latter, only to be told by the Court it should have selected the former option.
The case was also of interest because then-Supreme Court nominee Sonia Sotomayor was on the appellate court panel that found against the white firefighters. All eyes may be on her in the next round, in Lewis v. City of Chicago. The case involves a 1995 test by the city’s fire department. While the test takers were only slightly less than 50% African-American, only 11.5% of the test takers scored high enough to be likely to secure a job. Approximately 6000 African-Americans who were not hired sued the city, alleging the test had an illegal disparate impact.
The Supreme Court heard oral arguments in the case yesterday. It is not yet clear whether they will decide the case on a mere timing issue (the plaintiffs may have missed the statute of limitations on their claim, as the Seventh Circuit held when it dismissed the suit), or it may tackle the broader issue of discrimination claims based on test scores. Stay tuned.
The proposed 2011 budget includes a $25 million plan, including the addition of one hundred new enforcement employees, to crack down on the misclassification of employees as “independent contractors.” This proposal comes at a risky time for employers, as it is estimated that nearly 50% of jobs created during the economic recovery are contingent labor (temps and independent contractors, as opposed to regular employees). It can be quite tempting to hire “independent contractors” instead of employees. Employers do not have to pay Social Security or workers’ compensation, don’t have to worry about complying with the FLSA, and don’t have to consider Title VII and the other anti-discrimination laws. Sounds like a no-brainer, right? Not quite, especially given the hefty fines and penalties employers can face when they are found to have misclassified.
So how can you tell if you’ve got an independent contractor or an employee? In the infamous words of the “Hoosier” poet James Whitcomb Riley, “When I see a bird that walks like a duck and swims like a duck and quacks like a duck, I call that bird a duck.” In other words, the label an employer slaps on the “contractor” does not matter. The IRS has published an article to help employers make correct classifications. The linchpin of the IRS’s inquiry is how much control the individual in question has over her job. The more control, the more likely it is that independent contractor status is appropriate.
Our advice is to take proactive steps to determine whether your independent contractor classifications are correct. Better you do it now than the IRS does it for you down the road.
Thomas’s English Muffins (Bimbo Bakeries USA) has stopped a former V.P. from starting his job at competitor Hostess based on the V.P.’s knowledge of the invaluable trade secrets of Thomas’s English Muffins’ “nooks and crannies.” A Pennsylvania judge has ruled that V.P. Botticella cannot start his job until the legal issues are resolved, based on a confidentiality agreement Botticella signed. While some commentators have opined that the confidentiality agreement may not hold up under California law (where Botticella lives and works) if Botticella seeks a change in venue, his own actions do not help his case. Botticella advised senior management that he was retiring, so Thomas allowed him to continue to work for 2 weeks. During that time, he allegedly continued to have access to confidential trade secrets and attended several sensitive meetings. When rumors started to fly that Botticella was going to Hostess, Thomas’ confronted him and filed suit. In order to prevail, Thomas will have to show that it treated the nooks and crannies like trade secrets; e.g. the information was restricted to those who needed to know, it was protected as confidential, and not available for dissemination. But it is not looking good for Botticella. He was one of 10 people in the world that had access to the information, he signed a confidentiality agreement, and he was not honest about where he was going to work.
Even if your trade secrets are not as famous as Thomas’ nooks and crannies, you can prevent their disclosure by former employees with proper protections in place and a well-drafted confidentiality provision. In these circumstances, it is not necessary to have a non-compete agreement, which tend to be harder to enforce (and prohibited in some states like California).
Earlier this month, the Sixth Circuit Court of Appeals upheld the dismissal of a case brought under the Age Discrimination in Employment Act (“ADEA”). In Schoonmaker v. Spartan Graphics Leasing, the plaintiff, a 58 year old woman, was selected for termination as part of the employer’s reduction-in-force (“RIF”). So was her 65 year old co-worker. Their 29 year old co-worker, however, was retained. The court held that this “mere age differential,” without more, was insufficient to create a prima facie showing of discrimination. Unfortunately for the plaintiff, she did not have any other evidence, other than her own, unsupported belief that she was the more worthy employee.
While this case has a happy ending for the employer, employers should still be careful about the rationale behind all termination decisions, whether as part of a RIF or otherwise. Thorough, consistent and well-documented performance reviews are an example of such relevant and helpful documentation.
The EEOC recently reminded us that the Americans with Disabilities Act extends to employees associated with a disabled person. In its recent suit against The Timken Company for gender and disability discrimination, the EEOC alleges that Timken refused to hire an employee for a full-time position as a process technician because of her gender and because she is the mother of a disabled child. The employee had worked at another Timken facility on a part-time basis before applying for the full-time position. The EEOC charges that Timken’s refusal to hire the employee due to concerns about her ability to work full-time and care for a disabled child violated the ADA and Title VII.
This case raises several points:
- The EEOC is serious about protecting employees from discrimination based on their association with a disabled person (i.e. the employee need not be disabled to bring a claim);
- Employers need to focus not only on potential new-hires, but also on current employees to avoid denying employment benefits or accommodations based on the employee’s association with a disabled person; and
- Managers should be trained on their responsibility to avoid potential discrimination, to recognize the need for accommodations, and to avoid common stereotypes and assumptions (e.g. women with caregiving responsibilities can’t handle the fast-track).
In addition to a marked increase in EEOC claims, we are seeing evidence that the EEOC is devoting more time to investigations and stepping up enforcement efforts. It is critical that management and supervisor training include all possible forms of discrimination. A comprehensive training program is one of the most valuable defenses to a discrimination claim of any type.
Last week, CareerBuilder released a survey that revealed employees are increasingly comfortable with openly dating other workers. In fact, three out of ten employees surveyed ended up marrying their workplace sweethearts. So finding love in the office is not necessarily a bad thing. Nonetheless, tales of workplace romances gone bad are legion. As are the resulting HR headaches: claims of harassment, favoritism, retaliation, bad morale, and bad PR. So what is a prudent employer to do? Our advice is to simply set up some ground rules and make sure everyone understands them. Our top 5:
1. Have a policy that sets forth the do’s and dont’s of workplace dating.
2. Emphasize that professionalism is to be maintained at all times (i.e., no public displays of affection at the water cooler).
3. Provide that if the paramours find themselves in a supervisory relationship, they must disclose this fact to HR or another designated source, so that the reporting relationships can be altered.
4. Train all managers and employees on the policy. It should be included in your harassment training, and should include as many specifics as possible (for example, “no” means “no” at work, even if at the bar on Saturday night you are inclined to think “no” means “maybe”).
5. Make sure to warn against retaliation, both in the policy and in the training. If things don’t work out, both parties must agree to maintain a professional working relationship.
Now some experts advise that employers prohibit intra-office dating altogether. Others suggest requiring the employees to sign a “love contract,” attesting to the consensual nature of the relationship. Both are legitimate approaches. But in our view, respecting individual choices and privacy interests sends the better message.
Have you heard about the new CBS reality show “Undercover Boss?” The idea is that CEO and other C-Suite types assume false identities to infiltrate their workforce as entry-level new hires. Oprah Winfrey’s February 1 show contained some highlights and interviews. In it, the CEO of corporate giant Waste Management, Larry O’Donnell, went undercover as “Randy,” an entry-level worker. Instead of running the largest waste and recycling operation in North America from his comfy corner office, Randy set about learning such tasks as cleaning port-o-potties and sorting recyclable materials from a fast-moving conveyor belt. He struggled with these tasks. In fact, a long-term employee who was charged with training Randy concluded after just a day that he did not have what it takes to get the job done.
When Randy revealed his true identity to the workers with whom he had interacted, they were naturally surprised. But instead of the ruse being some kind of cruel prank on them, Larry O’Donnell went on to recognize each for their efforts and committed to implementing long-term changes that could improve the lives of all Waste Management workers. Needless to say it was a warm and fuzzy “t.v. moment” ending.
Management could take a lesson here — don’t just sit in your corner office day in and day out never having face-to-face interactions with your employees. Roll up your sleeves, get your hands dirty (figuratively, at least), and talk to employees at all levels of the organization. You may find better ways to do business. You may just give morale a boost or increase employee loyalty. Whatever the result, the experience is likely to be eye-opening. What have you got to lose?
The 2009 Supreme Court’s decision in Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee made a big splash in the world of employment law. The Court expanded the reaches of Title VII’s anti-retaliation provision, holding an employee who participates in an internal investigation of a harassment complaint is protected from retaliation, even if that employee made no complaint of her own. (For an excellent analysis of the case, see Jon Hyman’s post about it at the Ohio Employer’s Law Blog). The plaintiff in the case was essentially thrown a lifeline by the Court and allowed to return to the trial court.
Last month, a jury returned a verdict in her favor. She was awarded 1.5 million dollars. The case’s outcome serves as a reminder that retaliation claims tend to fare very well when they get before a jury. Employers should make sure their supervisors understand their legal obligations in this respect. Not doing so can be a very expensive misstep.
Suppose you have successfully responded to a workplace complaint by conducting a prompt and thorough investigation and reaching findings of fact (or, better still, you outsourced the investigation to Warren & Hays). The investigation found an employee violated the company policy prohibiting harassment or discrimination. What is your next course of action? A notation in the personnel file? Yes, that’s most likely necessary, but not always sufficient. One-on-one “sensitivity” training can be an excellent resource.
It sounds good, but what is it, exactly? The offending party meets with an experienced third-party trainer. During the course of the meeting, the trainer reviews the company policy, provides a detailed overview of the legal landscape and how the offender’s actions fit into it, instills the fear of God in the offender (by raising the specter of such terrors as personal liability), and coaches the offender on how to best avoid similar situations in the future. The coaching portion of the session can provide the most helpful long-term gains, both for the employee and the employer. Murky areas such as management style, workplace communications, unconscious bias, and increased sensitivity are explored in an interactive way. The result is often a better informed, more aware supervisor who is eager to hone her new-found skills.
I often hear from the skeptical client, “but can people really change?” It is true that deeply-held biases and ingrained attitudes can be hard to shift. But it is just a true that behavior in the workplace can be altered by training, coaching and, yes, scaring offending employees.
We’ve written about the hazards of employees using Facebook, and the potential liability of employers who use social media to screen applicants; but what about businesses doing business on Facebook and other social media sites? Apparently social media sites are emerging as a way for businesses to connect. Salon magazine recently listed popular guides to helping businesses effectively use social media:
- 32 Ways to Use Facebook for Business
- 62 Ways to Use Twitter for Business
- 32 Ways to Use LinkedIn for Business
- 10 Golden Rules of Social Media
- 10 Tips for Becoming a Smarter, Social Business Person
- How to Build Conversations in Social Media
- Why Social Media is Still a Red-Headed Stepchild
All of these guides were published by WebWorkerDaily.com, an excellent technology resource for businesses.
Defense Secretary Robert Gates is expected to announce the commencement of a year-long Pentagon study into how best to revise the “don’t ask don’t tell” policy concerning gay members of the military today before the Senate Armed Services Committee. ”Don’t ask don’t tell” essentially provides that gay service members keep their sexual orientation to themselves. If revealed, however inadvertently, they can be dismissed from the military. This announcement represents a significant step towards President Obama’s stated goal of eliminating the policy largely considered to be anti-gay. Gay rights’ activists are pleased with this development, while some high-ranking military officers have expressed concern about this decisive issue being raised.
Secretary Gates has indicated change should ensue slowly and carefully, as the lifting of the ban on openly gay military members would represent the biggest social change to the military since the 1948 executive order for the racial integration of military units. Still, change is likely to occur, as the study is premised on the idea that lifting the “don’t ask don’t tell” policy can be accomplished without compromising the military’s capabilities.
On January 28, 2010 the EEOC issued a press release indicating it is partnering up with the Maltz Museum of Jewish Heritage to “fight job discrimination.” The Maltz Museum, familiar to any east-sider, is in Beachwood and easily accessible from the freeway. The EEOC announced that on the last Thursday of every month, its employees will be at the Maltz Museum to meet with anyone who has concerns about job discrimination, and to help fill out the necessary forms to file a Charge of Discrimination.
This local outreach effort demonstrates a renewed and serious commitment on the part of the EEOC to proactively and aggressively root out workplace discrimination. Employers – have you recently reviewed your discrimination policies and trained your managers on the discrimination laws? Unless you are emphatically nodding your head, there is no time like the present. (Or, as my favorite yoga teachers often ask, “if not now, when?!”)
The Fair Labor Standards Act (FLSA) provides steep penalties for “employers” who violate its requirements. Who, exactly, is an “employer”? The statute states an employer is “any person acting directly or indirectly in the interest of an employer in relation to an employee. . . .” 29 U.S.C. Section 203(d). The Ninth Circuit had the occasion to interpret this section in the recent case of Boucher v. Shaw. The court gave an expansive interpretation, looking at the nature of the employment relationship as a whole and the degree of control exercised by the would-be employer. It went further than a prior Ninth Circuit case, which had held an FLSA “employer” needed to have a significant ownership interest in the corporation. The Boucher court found the defendant’s CFO, who had no ownership interest, to be an “employer” within the meaning of the FLSA, along with the CEO and another officer who owned a substanial part of the company.
Knowing this risk of personal liability, it would serve senior management well to ensure their company is in compliance with the FLSA. A wage and hour audit can be the perfect, cost-effective solution.
In my opinion, and in a word, yes. Last week, the television news show 20/20 aired a story about the “alarmingly high number of teens [who] claim sexual harassment at work.” ABC’s Brian Ross interviewed a sixteen year old student from Orange County, California who worked part-time at a local Starbucks as a barista. According to the young woman, who has since sued the coffee giant, her direct supervisor, a twenty-four year old male, repeatedly harassed her and coerced her into a sexual relationship. She claims she did not believe she could refuse his advances. She also claims when she finally complained to Starbucks, she was transferred to another store but the alleged harasser faced no consequences. Starbucks is fighting the lawsuit, in part by claiming the young woman’s sexual history undermines her claims. However the case turns out, it is certainly an embarrassment for Starbucks, and an expensive one at that.
In another recent case, two teenage women sued Taco Bell after their supervisor allegedly raped them. The EEOC pursued the matter, obtaining a several hundred dollar settlement for the women. The EEOC’s position in the case was that the employer had a heightened responsibility to protect its youngest workers.
The EEOC has a point, and one that I imagine most judges and juries would be swayed by. Certain employers hire teenage workers, as they are inexperienced and inexpensive, and employers can make good money off of them. It only seems fair that the employers should, in turn, take some responsibility for providing their newest members of the workforce with a safe and productive work environment. Two easy and inexpensive ways to implement this responsibility are (1) making sure discrimination and harassment policies are updated, disseminated, and provide a clear channel for employees to complain, and (2) training teenage workers and, more importantly, those who manage them, on how to create and maintain a healthy work environment and avoid issues of harassment and discrimination.
According to the Eighth Circuit Court of Appeals, it can be. In Lewis v. Heartland Inns of America, the appeals court reversed a lower court’s dismissal of a claim brought by Brenna Lewis, who sued her former employer for sex discrimination after she was fired. Lewis worked at the front desk of one of Heartland’s hotels. Her performance was indisputably good. However, her new supervisor (a woman) was heard complaining that Lewis, a self-described “tomboy,” was not pretty enough for the job. She wanted her employees to have a “Midwestern girl look” and even insisted that interviews be videotaped so she could assess the candidates’ attractiveness.
The court was quick to denounce the lower court’s holding that Lewis’s claim was doomed because she was unable to point to any similarly situated males who were treated differently. The issue, according to the Eighth Circuit, was whether Heartland, via its supervisor, had engaged in gender stereotyping. It easily concluded it had, and went on to join the ranks of other circuits (including the Sixth) that have held that employment actions based on a failure to conform to gender-based stereotypes is a form of actionable sex discrimination.
This area of sex discrimination law is one not necessarily well-known or understood by many supervisors. Given that their actions are often automatically imputed to their employer, employers should make sure their supervisors are properly trained.
A recent report released by the law firm Seyfarth Shaw reviewed and analyzed class action employment litigation in 2009. The results, not all that surprisingly, show that class action and collective employment-related lawsuits are indisputably on the rise. ”Given the enormous financial stakes, proactive planning and legal compliance programs — to get ahead of class action risks — are critically important for businesses in 2010,” stated Gerald Maatman, the report’s editor.
Settlement amounts in 2009 also rose significantly for workplace class actions. As the plaintiffs’ bar continues to push the envelope in crafting theories of recovery, employers will be forced to contend with heightened risks and potential damages. According to the report, the monetary value of the top ten private plaintiff settlements entered into or paid in 2009 for employment discrimination class actions totaled $86.2 million. For wage and hour suits, the top ten private settlements received $363.6 million. For ERISA cases (generally arising out of 401(K) losses), the top ten private settlements totaled $499.5 million. These figures do not include government-initiated actions.
To this point, the Plain Dealer reported today that over 200 former store managers of Aldi, a large discount grocer that employs over 11,000 workers in the U.S., sued Aldi under the FLSA. The lawsuit, which was initiated by a man from Elyria, alleges store managers were improperly classified as exempt employees even though their duties rendered them non-exempt and thus entitled to a tremendous amount of overtime pay that they never received. While the case is in its early stages, Aldi can expect an incredibly long and expensive uphill battle.
What can employers do to best avoid being hit with such risks? As we have advised before, audit your employment practices and train your managers on legal compliance issues. It’s well worth it.
Those of us that participate in the social networking site LinkedIn understand the value of recommendations. The more you have on your home page, the better you look. So many engage in an informal barter system — I recommend you, hoping that you will in turn recommend me, etc., etc. But employers and managers need to bear in mind that a LinkedIn recommendation is, essentially, an employment reference. And there are legal consequences of poorly written or inaccurate employment references, such as claims for negligence and defamation.
Many employers have policies about employment references, such as that they may only contain dates of employment and positions held, or that they must be screened by HR before they are released. If you have such a policy, consider making a specific reference to LinkedIn recommendations, to the effect that they be handled the same way as all employment references. If you don’t, now is a good time to get one. At a minimum, employers should have a consistent practice with respect to LinkedIn recommendations and should make sure all supervisors are on board.
In a healthy work environment, supervisors and employees know each other as individuals and can openly discuss personal facts about themselves, such as where they are from, what their hobbies are, how many children they have, and the like. But a recent case illustrates the danger in showing too much of an interest in an employee’s background, particularly with respect to protected characteristics.
In EEOC v. Go Daddy Software, the plaintiff, a Muslim of Moroccan national origin, alleged religious and national origin discrimination (among other things). A jury awarded him nearly $250,000, and an appeals court upheld the award. The evidence showed the plaintiff’s supervisor asked him about his religion and national origin after overhearing him speaking French on the phone with a customer. While the supervisor claimed his questions were merely to show an interest in the plaintiff, the plaintiff contended they were asked in a hostile manner and demonstrated a disrespect and dislike for Muslims. Apparently, the jury was more persuaded by the plaintiff.
This case reiterates for employers the importance of treading lightly around employees’ protected characteristics. While casual banter pertaining to someone’s religion or country of origin might seem harmless at the time, things can look quite different in front of a jury. Make sure your supervisors understand the difference between asking an employee what music he likes and asking what mosque he attends.
An article released yesterday in major newspapers across the country reported that Major Hasan’s (the suspect responsible for the November Fort Hood workplace shooting spree that left thirteen dead) supervisors had deep concerns about his behavior for years. However, he received numerous positive performance reviews that allowed him to be promoted. As is the case in some organizations, the Army culture is such that very few performance reviews ever contain negative comments. In keeping with this practice, Hasan’s supervisors at Walter Reed Army Medical Center, where he worked immediately before being transferred to the Fort Hood army base in Texas, failed to make any reference to issues with his performance and behavior (such as charges that Major Hasan inappropriately preached about religion to his psychiatric patients). Thus, his transfer and promotion were not hindered by his reviews.
This begs the obvious question: had Major Hasan’s reviews been conducted in a thorough and honest manner, would he have remained in the Army’s employ and thus afforded the opportunity to engage in a heinous shooting spree? Of course, Major Hasan may have acted out violently regardless of what happened with his employment. But had his reviews been thorough and honest, his supervisors could at least have had a clue as to what kind of personality they were dealing with and perhaps taken some proactive measures. As the problem appears to be Army-wide, it will require a significant change in supervisory behavior to put an end to falsely positive performance reviews. Training will be key.
By now, everyone has heard that during the 2008 presidential election, Senate majority leader Harry Reid described then-candidate Obama as electable because he is a “light-skinned” African American who lacks a “Negro dialect” except when he wants to portray one. In the last several days the media frenzy over the revelation of this comment has been significant, with mixed reactions on either side of the political aisle. Some Republicans are insisting Mr. Reid step down. President Obama, on the other hand, responded by immediately and unequivocally accepting Mr. Reid’s apology, stating he has known and respected Mr. Reid for years and knows he has a good heart.
As I was listening to NPR yesterday afternoon, author Keli Goff was discussing her recent piece in the Huffington Post about the issue. She opines that Reid is not racist (after all, he lobbied to get Obama elected and has worked hard on behalf of African American constituents), but his remarks reveal he lacks racial sensitivity. What’s the difference? Racism involves an antipathy for people of a particular race, which Mr. Reid does not have. Racial insensitivity, though, reveals a lack of understanding of a racial group. Goff theorizes (correctly I believe) that the root cause of racial insensitivity is a lack of real and meaningful interaction with members of the race in question. She cheekily insists that employing African Americans as nannies, office staff, and the like does not translate into friendships or other close personal bonds that can bring understanding of cultural and racial differences. Thus, her conclusion is that Mr. Reid’s comments reveal a lack of understanding of black people, which is ok, according to Goff, “unless of course you’re one of the leaders of what’s supposed to be the party of diversity and inclusion.”
I have no doubt the controversy will ensue. But I am less interested in Mr. Reid himself or the political/media repercussions he may face, and more interested in implications for those of us in the world of HR and employment law. As Goff highlights, Mr. Reid’s comments reveal a truism about American society that rarely gets much air time (except before the EEOC and the courts): colorism. There is a very real bias in favor of lighter-skinned minorities. As the EEOC has repeatedly told us, favoring a lighter-skinned African American is just as illegal as refusing to hire an African American at all. This brings me to point number one. Anti-discrimination training (and the accompanying company policies) must explore colorism, its implications, what precisely it is, and how to avoid it in the workplace. Second, it is important simply to recognize that inadvertent racial insensitivity is alive and well and can have significant effects in the workplace and beyond.
Last week, the EEOC released its charge filing statistics for Fiscal Year 2009. Here’s what they reveal, in a nutshell. The EEOC received 93, 277 charges, down slightly from 2008, but still a record-setting high. Retaliation was the most commonly claimed type of discrimination. The EEOC recovered $294 million on behalf of alleged victims of discrimination. These numbers suggest (correctly) that the EEOC is really sinking its teeth into enforcing the anti-discrimination laws. In fact, in FY 2009, the agency began to expand its staff for the first time in nearly a decade, and will continue to do so throughout 2010.
So what do these numbers mean for you? For starters, make sure your EEO compliance is up to speed. This means having the most up-to-date policies, training your supervisors on their obligations under the anti-discrimination laws, and making sure you have a solid internal mechanism for receiving and resolving complaints before they ever get before the EEOC. Beyond these compliance essentials, reflect on your corporate culture. While having an open, fair and ethical workplace is not guaranteed to stave off discrimination complaints, it certainly helps.
Unless a disability is obvious, an employee seeking a reasonable accommodation must specifically ask for one, according to a case decided by the D.C. Circuit this week. In Stewart v. St. Elizabeths Hospital, the plaintiff, a hospital aide in a maximum security wing dealing with mentally-ill criminal patients, claimed the difficult working environment caused her to suffer from a mental disability under the Rehabilitation Act. She alleged the hospital failed to provide a reasonable accommodation, as it did not transfer her to a different department. However, the court found the hospital did not know of any alleged disability up until the end of the plaintiff’s employment when she finally requested a transfer. At that point, the hospital asked for medical documentation and assured her it would assist her once it received the requisite paperwork. She never provided it, however, as she left work, attempted suicide, and never returned.
Buttressing the court’s finding was the fact that up until the time the plaintiff asked for an accommodation (and thereafter left and never returned), the employer was not on notice of any alleged disability. The plaintiff did get visibly upset at work on a couple of occasions, but this alone did not alert the employer to a mental disability.
In disability discrimination cases, the courts often refer to the “interactive process,” the dialogue between employer and employee about the need for an accommodation. When the need for an accommodation is unclear, Stewart indicates it is incumbent upon the employee to directly ask for accommodation and explain the need for one.
However, bear in mind that the duty to provide reasonable accommodations will be more of a focus going forward under the ADA Amendments. Therefore, if you have a question about a particular employee, it’s always a good idea to check with counsel. And make sure your managers have received sufficient training about the duty to accommodate so they can, at the very least, spot the issue when it arises.
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